CONVENTION GALA OF THE UKRAINIAN-AMERICAN BAR ASSOCIATION
Speech by Robert McConnell
Washington, D.C.
September 22, 2007

Thank you for that introduction Andrij (Steckiw) - - I must admit that it has been a number of years since I joined you at one of these events.  And as I reflected on those years in the early 1990s when I was a regular attendee at UABA functions I was also reminded of the early days of Ukraine’s coming out from behind the Iron Curtain.

As Judge Futey and Taras Szmagala and some of the others here tonight know, my wife Nadia - - who is in Kyiv tonight - - and I, along with several others brought the first republic-specific delegation of officials from the Soviet Union to the United States in 1991 - - it was a delegation of 13 members of the Rada for two weeks in the United States for a program on the American System of Governance.

During that trip one of the sessions was in the United States Supreme Court – lunch with Justice Sandra O’Connor followed in one of the Court’s wonderful conference rooms then-Solicitor General of the United States, Ken Starr.

Ken explained the role the Solicitor General plays as a bridge of sorts in the intra-branch relationship between the Executive and the Judiciary in our system.  In his talk he used an example of a case he had recently argued before the Court.

To put this story in perspective remember that Ukraine was still part of the Soviet Union, Ukraine’s blue and yellow flag was not yet legal but it was being displaying in Kyiv and across Ukraine more and more.  Rekindled Ukrainian pride was emerging and the flag was a big part of that phenomena.  All of the deputies present were proud of that blue and yellow flag.

The example Ken used was a recent flag burning case he had argued.  Essentially he gave the delegation a summarized version of his case to the Court – why the Court should uphold the law making the burning of the United States flag a criminal offense.

He talked about the importance of the flag to the nation, about how it was in the fabric of our society, how after an all night battle in Baltimore harbor “by the dawn’s early light” the flag was still there, how the pictures of the flag raising over Iwo Jima lifted the nation and made us believe the war in the Pacific could be won.  Our flag was sacred and not to desecrated.

You could watch the faces of the deputies - - you could see that they were “into” Ken’s argument, approved of every point and emotion.

But then Ken said, “But the Court has ruled and it ruled that I was wrong.”  You could see the deputy’s faces fall.

Ken explained that the Court ruled that the principal of freedom for which the flag stood was more important than the symbol itself.

You could watch the deputies.  Intellectually you could see that they understood the point but they didn’t like it, their emotions were in dissent.

I think reflecting on that story is relevant today maybe as much as it was in the early 1990s.   It was an example of the power of the rule of law and the rule of law continues to be elusive in Ukraine - - painfully so.

With the voting in the parliamentary elections coming up in a few days I offer tonight a few reflections on the political situation and possibly a few ideas for the Association.  But first I reflect on one - - just one - - story from what was popularly called the Orange Revolution.

As we all know, upon the conclusion of the initial Presidential election in 2004 the ruling party declared its candidate, Viktor Yanukovych, the winner.

Tens of thousands of peaceful demonstrators filled the streets of Kyiv protesting the rigged election and the country’s general and rampant corruption - - and abuse of authority by those in power.

Soon many Ukrainian television reporters were on strike, protesting government pressure to slant the news coverage.  The major media bosses blacked out coverage of the huge popular demonstrations.  It seemed as if no one was left with access – or the courage – to speak out and tell the nation the truth on the largest media outlets in the country.

But as The Wall Street Journal reported, the Kuchma government had not counted on Natalia Dmytruk (Dim-MEE-trook) - - as Bohdan Futy and Terry Szmagala know, you can’t count of my pronunciation of Ukrainian names - - you are simply going to have to accept my version.

Ms. Dmytruk, a sign-language interpreter at Ukrainian state television network, “… adopted guerilla tactics to break the information blockade.  Conspiring with her makeup artist, (she) tied an orange ribbon inside her sleeve.  Then, after interpreting the news broadcast for the deaf, (she) bared her wrist.  ‘Everything you have heard so far on the news was a total lie,’ she told viewers in sign language. ‘Yushchenko is our true president.  Goodbye, you will probably never see me here again.’”

Ms. Dmytruk was immediately greeted with hugs from her colleagues and word spread rapidly.  The station’s technicians and the staffs of the daily children’s show and other non-political programs decided to join the strike over media coverage.

Happily the forces of democracy gained ground and essentially backed by the Rada and the Constitutional Court there was, as we all know, a revote and Viktor Yushchenko became Ukraine’s president.

My point here is that Ms. Dmytruk and thousands like her who stood up to the corrupt authorities were the heroes of the Orange Revolution.  The beneficiaries of their demands for change may have been the politicians on the stage of the Maidan, but the heroes were the citizens of Ukraine.  They showed a shocking collective drive toward self-determination and a refusal to accept the top-down power structure that had essentially carried forward from Soviet days.

The popular mandate for the Orange leadership was therefore to govern on the basis of the rule-of-law, a mandate the new president and government pledged to respect in their bid to build a country worthy of its rich European heritage.  The world applauded and anticipation grew inside and outside Ukraine.  I believe it is fair to say Ukrainian-Americans were euphoric over the anticipated release of what was believed to be the long suffering and hostage Ukrainian potential.

Well, as we have seen – and as we really should have anticipated – nation building is not that easy, nor is systemic corruption shed so quickly. 

Legal reform was a key Orange priority.   Yet nothing was done - - nothing.  

As a result, the first year of the new presidency saw inconvenient court rulings, such as the one by the Supreme Court annulling the removal of the Kyiv oblast governor, not only ignored but used as a pretext for attacking the credibility of a widely corrupt legal system.   And this continual criticism was never counterbalanced by any positive moves to improve the performance of the courts through systematic reforms.  

In the Rada - - OH, in the Rada - - the obvious public corruption is the type of thing we would see here on Saturday Night Live.  The constitution forbids deputies voting any voting cards but their own  -  and yet national television coverage of the Rada sessions often show very few deputies present during voting and party and faction leaders standing in front of the voting machines voting - - card, after card, after card. 

How can the citizens of Ukraine take seriously the rule of law when law makers themselves offer not even a public pretext of adherence to constitutional restrictions?  It is shameful and certainly not limited to any party or faction.  This blatant disregard for the laws governing voting is universal in the Rada.
 
So, the great and exciting promises of the Maidan remain unfulfilled. 

Without pointing fingers and analyzing who did and didn’t do what and where fault might lie the reality is that corruption remains, lines blur between good and bad, right and wrong, personal egos and personal agendas reign supreme in a patchwork of alliances that are hard to believe and constantly shifting.  And, for emphasis here, I reiterate - - a legitimate rule of law at best remains elusive.

Among the political elite there is ambivalence toward the constitution, an almost comical disregard for the nation’s laws and any real pretence of governance according to law.  Orange has morphed into blue and then into a kaleidoscope of confusing and contradictory political colors.  This is all fed by the continuing thrashing about of Ukraine’s government and politicians - - the internal jousting of the original Orange coalition - - and to me the bazaar return to power of Viktor Yanukovych. 

Obviously there is disappointment and a feeling of betrayal among those who took to the streets, slept in tents, froze through the nights and spread out across Ukraine to campaign and monitor the Presidential revote.  And here in the United States you can see and you can feel that a very similar fatigue that has set in within the community and here in Washington.  Exciting promises dashed has a way of doing that.

And, I believe it is quite fair to say that the upcoming parliamentary elections offer little to no hope of breathing life into the promises of the Maidan, and they certainly offer no promise of a renewed effort to establish governance under any true rule of law.  All parties to the latest political crisis have shown few qualms in using courts at all levels as an instrument in the pursuit of narrow party-political goals instead of striving to ensure the development of the courts as genuine arbiters of Ukraine's still relatively fragile democracy.

But, despite all I have said and how I have sounded here, I am optimistic.

Ukraine is changing.  One of the lasting political gains of the Orange Revolution is that all political forces now understand that they do have to sell themselves to the public - - voters matter.  Given where Ukraine was this is a critical early step toward democracy and it now is a permanent feature of the political fabric of Ukraine. 

A next step is forcing those elected, through the institutions of civil society and the rule of law, to implement the promises made.  This will be more difficult.  And, I believe there is a definite role for Ukrainian-American lawyers in helping Ukraine meet the challenges of this effort.

This is not a time to claim “Ukraine fatigue” and withdraw from the great cause that has been the dream of many of you and so many of your parents and grandparents.  As an American with no hyphen I also believe strongly that we cannot withdraw from this great cause because the existence of a free, independent and democratic Ukraine is in the United States’ national security interests.

You know back in early 1991 at one of your meetings another McConnell, Nadia, spoke to you.  Not too long before we had established the U.S.-Ukraine Foundation and set up offices here and in Ukraine.  Nadia suggested working together on programs relating to constitutional reform and the rule off law.  Obviously since that time the Association - - and the Foundation - - have carried out any number of programs and individual members of the Association have been deeply involved in democratic institution building programs in Ukraine.

Yet I want to emphasize that building and maintaining a democracy and governance under the rule of law is not a sport, there are no time outs, there is no time clock.  There is no end.

Here in the United States there is a constant ebb and flow within our system.   There are groups like the Federalist Society that continually foster wide-ranging debate on the great and on-going legal issues of the day - - making sure that our Constitution is honored and that the Constitution is a part of all discussions about the evolutionary trends within the distinct areas of our law.

As one of our Founding Fathers said, “You now have a democracy if you can keep it.”

This business of government - - democratic government - - whether here in the United States or in emerging Ukraine is a serious undertaking that is never easy.

So why when I see so challenges and so much corruption and ambivalence toward the rule of law in Ukraine do I remain optimistic?

As I said, elections are contested and politicians now have to pay attention to the voters, they have to convince the electorate to vote for them.

But the real reason for my optimism is the people of Ukraine, especially the young people of Ukraine.  They went to the streets and they see what is going on and they want something better for their country.  When I monitored polling places in Eastern Ukraine, in Mr. Yanukovyich’s hometown, during the 2004 revote we found a number of young college-age students serving on the election commissions.  In fact in a number of polling stations we found college age Yushchenko supporters who had traveled from central and western Ukraine and who had been elected chairmen of the local election commissions.  Why?  Because, we were told, they came into town days before the revote, introduced themselves, showed their credentials and showed that they clearly understood all of the details of the election law and satisfied everyone that all they wanted as a fair and honest vote.

Honest, and thoughtful citizen involvement - - another key to successful democracy.

I see young people in Ukraine, following political events and seeing clearly the continuing need for change.  I see lawyers persevering and trying to tug and pull the processes toward governance under the law.

I see young Ukrainians here in Washington - - interns, Fulbright scholars, students - - bright, inquisitive young people who have a grasp of what is happening in Ukraine and can see clear comparisons from the perspective gained during their time in the West.

And, most important, we see these young people not beaten down by Ukraine fatigue but energized by their vision of what can be.  They are returning to Ukraine and taking with them the knowledge and experiences they have gained - - anxious to put those experiences to work in their country.

And - - it is important for us to remember - - Ukraine is their country.  The decisions about what the people of Ukraine want in and from their government are theirs to make. 

We should only assist and support their efforts - - but - - we should assist and support and share our experiences.  You, the members of the Ukrainian-American Bar Association should - - and I believe have an obligation to - - share your talents and experiences with those who thirst for support, guidance, counsel and positive reinforcement.

Most of you - - perhaps all of you - - have seen the appreciation of the young Ukrainians who listen to discussions of the law, its meaning, and its indispensable value to fair and honest governance.   You need to be there for them.

Surely there are any number of programs you can add to your arsenal from your individual and collective experiences here.  I mentioned the Federalist Society and its constant programs about the great legal issues of the day.  I don’t know how our continuing legal education-type programs might best be adapted to the Ukrainian situation, but I must believe a thoughtful national debate about the constitution and the rule of law could teach and excite - - yes, excite Ukraine.  

Just think - - what the printing and circulation of the Federalist Papers and stimulating national debate over those papers did for the growth of our nation?

I did not come here to design programs.  But I do want to call for continued involvement and voluntary commitment from the Association and each of you. 

The cause is just;

the need is great;

and the rewards can truly extend beyond your beloved Ukraine to the United States and to the world.

Thank you (in Ukrainian)

God bless America

And

Slava ou Kainie (help me here with how you write/spell Thank you and my last line.