Democracy Watch - Issue 9

Issue 9: Monday 11th October 2010

Power corrupts and absolute power corrupts absolutely.

Viktor Yanukovych grabs for more power

On the 1st of October this year the Constitutional Court of Ukraine effectively cancelled the political reforms of 2004 and returned the Constitution to that of 1996. 17 judges of the Constitutional Court supported the decision. It was only judge Viktor Shyshkin who expressed an oppositional opinion. The decision of the Constitutional Court could mean that Ukraine becomes again a presidential-parliamentary republic similar to that which existed during the presidency of Leonid Kuchma, in addition Viktor Yanukovych receives much broader authority. However, the decision of the Constitutional Court may lead to a period of legaldemocracy chaos unless the new changes are ratified by a constitutional majority in the Verkhovna Rada from the votes of 300 deputies.
Among the powers that Viktor Yanukovych has adopted is the right to fire at any time any minister, his or her deputy, head of committees even the Prime-Minister of Ukraine. Besides the obvious human resources issues, the President has received the right to interfere in the government’s activity through direct instructions. The Verkhovna Rada may influence the President only by vetoing his legislative initiatives. But due to the fact that the pro-presidential majority in the parliament has extended this instrument is becoming less real in action.

The response of Ukrainian politicians to the drastic changes of the political rules was diverse. In particular, President Viktor Yanukovych while greeting the decision of the Constitutional Court expressed his support for the idea of a referendum and National Constitutional Assembly; these mechanisms are effective methods for consolidating opinion, ensuring maximum stability throughout systematic political restructuring. Iryna Akimova, the first deputy head of the Presidential Administration, stated that the return to the Constitution of 1996 would give Viktor Yanukovych the opportunity to control the implementation of reforms necessary for the development of Ukraine. Volodymyr Lytvyn, the Chairman of the Verkhovna Rada, noted that at the moment it is crucial to legally define the operational parameters of the governing authorities including the President, Cabinet of Ministers, Verkhovna Rada, and the local authorities. It is worth noting also that by the time the political reform was accepted in 2004 there had been around 700 laws approved - necessary for its implementation.
Despite loud statements concerning constitutional upheaval in Ukraine, opposition parties have been unable to mobilise the people to protest in support of Ukrainian democracy and against the establishment of authoritarian state in Ukraine.

Meanwhile, although opposition leaders of different political parties continue to criticise the activity of the President and the Constitutional Court, they fail to create any substantial political obstacles to the implementation of the Party of Regions’ plan to sculpt Ukraine in its own image.

Regarding the international response to the constitutional changes in Ukraine, among the first to make a statement was Stefan Fule, EU Commissioner for Enlargement and Neighbourhood Policy. He emphasized the need for constitutional reform even after the Constitutional Court’s decision because in his opinion this was not a constitutional reform. The representative of the EU noted that it is necessary to build an effective system of checks and balances throughout the branches of power and expressed Europe’s wait-and-see attitude towards the further steps of President Viktor Yanukovych. At the same time Mevlut Chavushoglu, President of the Parliamentary Assembly of the Council of Europe, stated that Ukraine does not face the monopolization of power.

In statements, Viktor Yanukovych has expressed plans to introduce further fundamental changes to the Constitution. In particular, he plans to bring the legislative field into closer conformity to the Constitution of 1996, provided that the faithful cooperation he receives from the constitutional court continues. For this purpose Viktor Yanukovych declared it necessity to seek expert opinion regarding changes to the Ukrainian Constitution, particularly from the European Venice Commission. However, it seems that in the nearest future the Presidential Administration will proceed with the manipulation or replacement of the basic laws on central governmental authorities in Ukraine. This process will result in the establishment of an authoritative power structure and give the President free reign to become the most powerful policy-making centre in Ukraine, unchecked by democratic restrictions of any kind.

People First Comment: Ukraine has been in political chaos since the Orange Revolution. The changes to the Constitution in 2004 were developed as a compromise to end the political stand-off and were deliberately designed by the incumbents in order to curb the power of the Presidency. But it was an ill conceived compromise that pitted President Yushchenko against three out of four prime ministers that served under him.

What transpired was five years of chaos that set the nation back decades and the national humiliation of watching a very public cat fight between the Prime Minister and the President played out on the international stage. In the later months of the Yushchenko Presidency Mr. Yanukovich was practically invisible. All he had to do was to keep quiet and let the protagonists slug it out, an excellent strategy that handed him the Presidency on a plate. It was to be expected that whoever won the 2010 Presidential election, both Tymoshenko and Yanukovich were likely to seek a reversal of the 2004 Constitutional reforms, despite the legalities and consequences, as both could see that this highly compromised botch-up would severely clip their wings and their ambitions.

What is of most concern over the current changes to the Constitution is that there is an established process set down in law to change the Constitution which was bi-passed: namely 300 deputies should vote in favour of the changes. The administration has created a precedent for additional changes in the future thereby undermining the whole credibility of the Ukrainian Constitution.

Secondly, the Constitutional Court was not asked to reconsider the 2004 changes in full but selectively. This would enable the President to assume more power whilst not tying his hands over issues that might restrict him. This and their total disregard for the rights of the people does not bode well as it clearly suggests Constitutional manipulation as opposed to real reform.

A return to the 1996 Constitution could be a positive step as it would clear up many of the ambiguities that have plagued the past five years, especially if the process followed the law and is accompanied by a restoration of the independence of the courts, the rule of law, the regulation of the currently unlimited immunity of MP’s and a degree of morality in the parliament. Sadly, this is not the case.

In fact we can only speculate as to the President’s intentions as no plans have ever been made public, no manifesto for change has ever been published let alone voted upon. The people of Ukraine have no idea of their President’s intentions; they can only draw assumptions from his speeches to the international community and hope that he really means what he says. This is not a true democratic process and judged against history it is close to the establishment of, at best, authoritarianism. When coupled with the recent pressure on media owners and international NGO’s, unwarranted interference by the Tax Police and restrictions on freedom of assembly it is a cause for concern.

Let us assume that the President is serious about democratic reform and truly wants to clear up much of the confusion. He does not need more personal power to achieve this. He could earn himself credit by establishing a transparent all party constitutional commission with international support to carry out a thorough review and align himself politically to the process. The Venice Commission of the Council of Europe would no doubt assist in this process. Its Secretary Thomas Markert was polite by describing the recent court decision as “unusual” given that the court declared the Constitution invalid after six years of it being in operation.

If we assume that the President wants to restore order into society then a good first step would be to ensure that all Ukrainian citizens, including MP’s, are equal under the law and make corruption in the courts, prosecution services and the police a criminal offence punishable by mandatory prison sentences. He already has the power to do this.

If we assume that the he wants Ukraine to be a modern European State then he can demonstrate this by working to European norms and European values. Again he does not need more power to achieve this.

Ukraine risks having the worst of all worlds: a leader that has not made his intentions fully clear, political parties that do not represent the people, a parliament that has become a trading floor for business interests, courts that administer justice to the highest bidder and a system where by the national interest has been subordinated to self interest. Changing the constitutional balance of power does not address any of those fundamental issues.

One could argue that if there is to be Constitutional change in Ukraine it needs to be root and branch as the whole political system needs reforming. The process needs to be transparent and all-inclusive. It should involve legal and political experts and it should be open to civil society and all political parties. In a democracy such pivotal decisions should not be rushed through the corridors of power without the very minimum of civil society insight.

The Constitution needs to ensure that political parties are rebuilt from the ground up, that all deputies, local and national are locally elected using transparent and accountable, proportional representation systems, that Deputies are well paid public servants with no special privileges and it should outlaw the present system of buying seats in parliament.

The Constitution of any nation is a sovereign document of the state that politicians have to learn to live within. It should never be manipulated to serve political or personal interest.

There is of course a faint irony to this whole situation and that is with all the power comes all the responsibility. Therefore if the President’s plans fail to deliver real benefits to the people then the Ukrainian people will have only one person to blame and we cannot expect them to be forgiving.