Kalman Mizsei: Rule-of-law is key for both Moldova and Ukraine


It is worrying how arbitrary the Constitutional Court is behaving. The latest bizarre decision is just indeed the latest in a string of decisions that have been motivated by short term political considerations rather than by the pursuit of maintaining the absolute primacy of the law...

Kalman Mizsei





The evolution of independent Ukraine and Moldova offer many fruitful comparisons. Perhaps the most striking similarity is that the future of both countries critically depends on whether these countries are going to be able to radically reform in a way that the system of the rule-of-law prevails. While the concept of rule-of-law is as complex as that of democracy, in both cases there is a simple test showing if the country is democratic and if rule-of-law prevails. As to the former, if elections are regularly held and competitive in the way that we do not know ahead of time who the winner is, we know that the country is basically democratic. Its quality can be deeper or shallower but elementary democracy exists.

Rule-of-law vs. criminal state

Equally, if in a country predominantly people can go to the court trusting that justice will prevail in their dispute in front of the judge, we know that the rule-of-law exists. There are much variations as to the quality of the rule-of-law but it typically either exists or it doesn’t. As to the former Soviet Union, uncontestably the Baltic countries have achieved the state of the rule-of-law even if not everything is perfect. At the same time, in Russia we can know ahead of elections the winner: it is decided not by the people but by Putin. Equally, in courts the powerful and rich prevail without doubt. Moldova and Ukraine are democracies but until the rule-of-law institutions do not deepen, they remain fragile democracies and cannot economically prosper.

Moreover, the radical alternative to the rule-of-law, the criminal state, is threatening the existence of independent state in circumstances when Russia wants to return them to the state of colonies or at least vassal states.

Corruption is the essence of the system

Georgia is also very interesting because during the period after the Rose Revolution it undertook successful reforms, unlike Ukraine and Moldova exactly in the way that strengthens the rule-of-law institutions, particularly independent courts. When Western people speak about corruption in Eastern Europe, rarely is the true nature and magnitude of the problem understood: that corruption is the essence of the system in the prosecutorial organization, the courts, but also the tax, customs authorities and the internal security organization work more like an organized criminal body than dedicated civil servants and that corruption permeates all walks of life, starting from kindergarten.

Revolutions without immediate finality

The most encouraging thing lately is that both, in Ukraine and in Moldova large and influential parts of the society express that they had it enough: they stand up in the name of citizens’ dignity. In Ukraine the revolution in the winter of 2013-14 swept away a clique that wanted to “own” the state. However, from this very encouraging sign of civic activity it is a long way to the very formidable task of reforming the state so that it serves and does not repress the citizens. The two revolutions did not produce, however, political leaders in Ukraine that can take over the top of the state from the old guard. It did, on the other hand, produce think tank organizations that are able to elaborate detailed reform programs and monitor their implementation. As the head of the European Union Advisory Mission I had a very dense communication with those experts. They are a big hope for the long run. On the other hand, of the many important things I learned from this work one is this: even local experts often make a mistake to believe that in a non-rule-of-law situation it is enough (or the most important) to change laws.

Rule-of-law absent in police, prosecutorial service, courts

Whereas we need to have in place good laws and regulations, in such situations where the prestige of the law is low because courts do not work fairly, informal mechanisms in providing (in)justice are hugely important. In fact, my friend Roman Romanov of the Renaissance Foundation produced a breakthrough study about pre-trial detention practices that clearly show that the rule-of-law is systematically violated in the practice of police stations in Ukraine. My experience is the same there with trials: the changed law notwithstanding, practically the prosecutors still “rule” and the independence of judges is formal and not practical. And of course bribes oil the process for them.

Demoralizing schizophrenia and no leaders

What makes this system so very difficult to change both, in Ukraine and in Moldova is first that it has its internal logic: since the overwhelming majority of the population participates in it, it is difficult to radically change it. In addition, in neither country there is a historical memory of the overwhelming part of the population about a system where power is regulated by law, and is not abused systematically by its holders. People live in a kind of schizophrenia: they hate when those on the top steal but the practice of illegal transactions is so demoralizingly frequent that it weakens resolve to change it.

Soviet reflexes are also strong: the salaries of chinovniki and of judges, prosecutors, parliamentarians etc. are low and people think it is right: but this only fuels regular corruption. It would be desirable if the revolutions produced the kind of national leaders who can politically drive the reforms. Neither in Ukraine nor in Moldova has this happened. In some ways the 2009 mass events in Moldova seemed to bring up such leaders; however, this expectation didn’t materialize and got replaced by deep disappointment in society.

Ukraine: three in one

In Ukraine since the Revolution of Dignity there has been a strong fight for constitutional reform. Originally its aim was a) to weaken the role of the President as Yanukovich’s strong presidential power was rightly seen as one of the reasons for the bad things that happened under his rule; b) achieve decentralization in a system where regions and municipalities have been crippled by a devastating detailed regulation that only served interests of corruption; c) a judicial reform to clean up the judiciary, including the all-powerful and hugely corrupt prosecution services. Each of these would be essential to transforming Ukraine from a robber-state towards one serving all the citizens. Two years on, well, none of this has yet happened.

Moldova: one but very grave

In Moldova, the situation is perhaps better related to local power and limits to presidential one; however, it is not better related to the judiciary. Plus Moldova is a smaller country, thus it is easier for one person, not even in high office but by using a combination of money and administrative powers, to control much of the state – at least temporarily. It is also worrying how arbitrary the Constitutional Court is behaving. The latest bizarre decision is just indeed the latest in a string of decisions that have been motivated by short term political considerations rather than by the pursuit of maintaining the absolute primacy of the law even if it is momentarily not expedient.

“Original sin”

I was there at what in the post-Voronin period the initial sin was. In January 2010 then interim President Ghimpu argued for plebiscite to change the system for direct election of the President. We argued that the constitution was clear: a qualified majority was needed to change this rule. For reasons of political comfort, Ghimpu did not want to negotiate with the largest parliamentary party of the time, the Communists. And my argument did not prevail in the European institutions. I was very clear already at the time that it will cost a lot in terms of the rule-of-law and that it served better European interests to stick to legality rather than look the other way when the rules were not convenient for the people who cried “Europe” louder.

Incidentally, this approach would also have been beneficial for the purpose to overcome the purely geopolitical thinking that plagued Moldova ever since 1992 since pure geopolitical thinking rendered much less attention to holding politicians responsible to serve the interests of the people and to behaving ethically.

Life overruled the rule

The chair of the Constitutional Court offers the argument that the now overruled system, in fact, created a captive state. Actually, the contrary is true: the initial arrangement in 2000 tried to compensate for the lack of deeper institutional checks and balances by forcing the political actors through requiring a 61 per cent majority, to negotiate the President who then would presumably be an arbiter. Life overruled it as in 2001 the Communists retained a constitutional majority in the Parliament. By today’s perspective, they used this majority with some restraint. But now changing arbitrarily, on the basis of short term political calculus (as Mihai Popsoi and Calin Kalusz have correctly argued lately), the system so that people elect the President directly, in fact the Constitutional Court makes it more and not less likely that again a Putin-like “strongman” emerges that in the young, post-communist democracies is always a risk, and will capture the state. I mention Putin since for the top politicians of the region unfortunately this man continues to be an example, also through daily broadcasts of skillfully manipulative Russian television propaganda, of how to capture power and gradually the whole state.

Rule-of-law vs vassal state

Since 2010, sadly, Moldova’s friends looked the other way much too often out of fear that by not supporting the “pro-European” leaders we will allow Russia’s interests prevail. Also, members of the Moldovan civil society argued vehemently that justice should not be impartial and they have to allow essentially illegal actions to the new coalition that emerged after the April 7, 2009 events. My idea of using European taxpayers’ money was different. I am the last who wants a Russian domination in Moldova; I am strongly convinced that Moldova’s interests are in a deep, European integration, ultimately in membership of the European Union. However, exactly for this reason we need to have high standards towards the governing class of the country and to hold them responsible for upholding the primacy of the law. Lately, many people reflected on this period similarly.

Often one hears geopolitical arguments for looking the other way. But the fact is that both, in Ukraine and in Moldova in my experience good geopolitics is sticking to European reforms, aomong which the rule-of-law reforms stand out.  One can probably do no better favor to Putin than to allow corruption and capture of the state by a few politician to prevail. Then he will have an easy way to pull the country East.

To be continued...

It is not too late to take seriously the need for reforms and it is my strong impression that the European institutions have also learnt the lesson, particularly in Moldova, and hold the governing class responsible for European type reforms. In the next article I will write on how to implement reforms so that it takes into account interests of powerful elites and yet achieves a better, more European state – both in Ukraine and in Moldova.

Kalman Mizsei


IPN publishes in the Op-Ed rubric opinion pieces submitted by authors not affiliated with our editorial board. The opinions expressed in these articles do not necessarily coincide with the opinions of our editorial board.

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