PERSPECTIVES: Heroes in red robes (04/03/05)

PERSPECTIVES

by Andrew Fedynsky

Heroes in red robes

Even at such proximity, it's safe to say that Ukraine's Orange Revolution changed the course of history. Above all, it thwarted Vladimir Putin's aspirations to undo the outcome of the Cold War by restoring the Russian empire. Now, the Orange Revolution is serving as a model for democracy, human rights and independence in Lebanon, Iran, Iraq, Kyrgyzstan and elsewhere. (Unfortunately, there's no guarantee that the outcome in those areas will be as positive as it was in Ukraine.)

Looking back at the dramatic events of November and December 2004, you can see any number of moments when it all could have unraveled and things might have gone in a completely different direction: if, for example, the plot to murder Viktor Yushchenko had succeeded and instead of an inauguration, there had been a funeral, with Messrs. Kuchma, Yanukovych and Putin playing the role of chief mourners. What if the call to take to the streets to protest a stolen election had been met with apathy? Or if people had gone home after a couple days of winter cold, having decided that winning against entrenched power was impossible? What if Internal Affairs Ministry troops had been unleashed and thousands had been killed in a Tiananmen Square-style massacre, or if Russia had intervened and confronted Ukrainian tanks and infantry? What if battles had broken out between the drunken bully-boys from Donetsk and Yushchenko supporters?

The nation's idealism and enthusiasm during the long ordeal, of course, were genuine and deeply held and Mr. Yushchenko was masterful in steering it all in a positive direction. Bolstered by a mandate from millions of orange-clad people, he showed a steely resolve and faith that the rule of law would prevail. And ultimately it did. When people finally had a chance on December 26 to vote freely, openly and fairly, the electorate affirmed the decision that the streets had already made.

With all that, arguably the most momentous of all the turning points was the judgment that Ukraine's Supreme Court rendered on December 3 invalidating the fraudulent election and ordering a new one. In my view, that signaled Ukraine's emergence as a mature society that not only has laws, but also a courageous judiciary willing to affirm them, along with a populace that accepts its decisions and goes on from there.

Following widespread reports of election fraud, the 21 red-robed members of the Supreme Court gathered evidence from every corner of Ukraine, evaluated it and then ruled that unequal access to the media, voter suppression, ballot box stuffing and other fraud had negated the election. Reading the decision, Chief Justice Anatolii Yarema said, "The conclusion of the court is that the rules of the electoral law were broken and the exact result of the voters' will across the territory of Ukraine cannot be ascertained."

By its decision, the Ukrainian Supreme Court not only made it possible for the will of the Ukrainian electorate to be freely expressed and accurately counted, it also established the court as an honest, neutral arbiter for the nation. This is a principle American society has accepted since 1803, when the Supreme Court in Marbury vs. Madison declared an act of Congress invalid, thus establishing itself as the third, co-equal branch of government, along with the Congress and the executive.

Ukraine never enjoyed the protections that an independent judiciary provides. Instead, Russian tsars and Soviet commissars ruled by personal whim and brute force. Throughout the 20th century, mind-boggling numbers of citizens were arrested based on their social class, who their relatives were, the books they read, whether they spoke Ukrainian and if they did, pronounced the letter "g." The judges presiding over the Soviet genocide were merely actors in a giant show trial orchestrated by the secret police in all its evil incarnations, starting with the Cheka and ending with the KGB.

America, especially my home state of Ohio, has played a key role in helping Ukraine's judiciary develop into an independent institution capable of rendering history-making decisions. In 1992, a year after the break-up of the Soviet Union, Chief Justice Thomas Moyer formed a partnership between the Ohio Supreme Court and Ukraine's Supreme Court and Rada, with the goal of developing and strengthening democratic ideals and judicial institutions in both countries.

Justice Moyer took his task seriously, visiting Ukraine five times and welcoming numerous delegations of Ukrainian jurists to Ohio. Members of the Ukrainian American legal community - particularly my friend and fellow-Clevelander Bohdan Futey, himself a judge in the U.S. federal court system - were invaluable in this and similar projects.

Recently, I was at a symposium in Columbus, "On the Orange Revolution, the Yushchenko Presidency and the Future of Ukraine," where Chief Justice Moyer chaired a panel that included judges from the Odesa Appellate Arbitrage Court, the Appellate Court in Luhansk, a Civil Court from the Zaporizhia Oblast and the Supreme Court. Near the end of the session, Justice Moyer asked the panel to assess the impact of the December 3 ruling on Ukraine's judicial system and society in general.

"We're here as judges," Supreme Court Justice Oleksander Potylchak replied. "We just rule on the facts and let the politics flow from there." Here, Civil Judge Viktor Horodovenko interrupted him: "Oleksander Ivanovych is too modest," he said. "Based on the facts and the law, the Supreme Court's December 3 decision was correct, to be sure, but it took enormous courage. Thus, the court gave official voice to the overwhelming desire of Ukrainians for a democratic country, one where people and the government play by the rules. That judgment, in turn, empowered the entire judiciary," he said - from the municipal level to the very top, indeed, the entire nation itself - to render fair, impartial decisions in the difficult job ahead of restructuring Ukraine's society from one based on corruption and privilege to one oriented on the rule of law. The political and societal impact of that on Ukraine has been enormous. But before Judge Horodovenko could finish, Odesa Judge Valerii Balukh interrupted him with a one-word assessment of the Supreme Court's work: "Heroyi!" (Heroes!)

Ukrainian history has many warriors, scholars, artists, clergy and activists who became heroes in the struggle for Ukraine's freedom and independence. Now we can add another category: judges who take their oaths seriously and have the courage to rule impartially in the face of enormous pressure from powerful interests. Heroes, indeed!

Andrew Fedynsky's e-mail address is: fedynsky@stratos.net.

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