Constitutional Instability In Ukraine Leads To 'Legal Turmoil'

KIEV, Ukraine -- On June 28, 1996, Ukraine became the last Soviet republic to adopt a post-Soviet constitution, and that day was designated Constitution Day, a national holiday. Two years later, on October 21, 1998, the Crimean Autonomous Republic adopted its own constitution, recognizing the peninsula within Ukraine.

Ukraine's constitutional wrangling has turned President Viktor Yushchenko (L) and Prime Minister Yulia Tymoshenko from Orange allies into bitter rivals.

Leonid Kuchma's reelection as president in 1999 gave rise to Ukraine's first non-left parliamentary majority that sought to ditch the country's "semi-presidential" constitution in favor of a full presidential system.

The relevant four questions were put to a referendum in April 2000 that was not internationally recognized, and were approved by a suspiciously high percentage of voters.

But Kuchma's plans were undermined by the onset of the Kuchma-gate crisis in November of that year, when tapes made illicitly in his office allegedly proved that he ordered violence against journalist Heorhiy Gongadze, who was kidnapped on September 16 and found decapitated on November 2, 2000.

Ukrainian politicians traditionally approached constitutional, and indeed all other issues, from the standpoint not of national interests, but personal advantage. Following the 2002 parliamentary elections, Kuchma shifted 180 degrees from his constitutional position two years earlier toward support for a parliamentary system.

The architect of this strategy, which had two objectives, was presidential chief of staff Viktor Medvedchuk, leader of the Social Democratic Party-united.

Disarming Yushchenko

The first objective was to split the opposition by persuading the left, perennial supporters of parliamentarism, to support the constitutional reforms advocated by pro-presidential centrists.

The second was to strip popular opposition presidential candidate Viktor Yushchenko, if he were elected, of the extensive presidential powers enshrined in the 1996 constitution.

The second vote in April 2004 failed after some pro-presidential centrists rebelled in protest at the change earlier that month of the election law from mixed to fully proportional. That change had been a condition of support by the left for the constitutional reforms.

Ironically, the reforms adopted on December 8, 2004, in a parliamentary vote were identical to those rejected eight months earlier. During those eight months, the authorities waged an all-out campaign to prevent Yushchenko being elected with the powers enshrined in the 1996 constitution.

The widespread fraud that marred the presidential ballot led to the so-called Orange Revolution, triggered by Europe's largest postwar mass protests, in which one in five Ukrainians participated.

Three European Union-sponsored roundtables resulted in the December 8 compromise agreement that led to a repeat vote on December 26 that Yushchenko won. In return, Yushchenko granted verbal immunity to his defeated rival Kuchma, and Yushchenko's Our Ukraine supported the vote on the constitutional reforms to come into force in 2006. The Yulia Tymoshenko bloc (BYuT) was the only parliamentary force to vote against the constitutional amendments.

Constitutional Questions

After being elected president, Yushchenko complained about, but failed to repeal, the constitutional reforms. First, between September 2005, when the Tymoshenko government was removed, until February 2007, when the Orange alliance was reconstituted, the BYuT and Our Ukraine were at loggerheads and divided.

Yushchenko and Our Ukraine did not support the BYuT's call to invoke the October 2005 Constitutional Court ruling that constitutional reforms required a national referendum. The BYuT campaigned for such a referendum in the 2006 and 2007 elections.

Second, Yushchenko did not establish his National Constitutional Council until December 27, 2007, and only presented his reform proposals on March 31, 2009. But by then he had no hope of implementing them as his popularity rating had collapsed to 2 percent and he had no support in parliament. Our Ukraine had voted to rejoin the coalition in December 2008, against his wishes.

The conflict between the president and prime minister continued throughout 2008, and the onset of the global financial crisis in the fall failed to dampen it. During that time, legal and constitutional experts and different political factions all reached the conclusion that the president's daily intervention in economic and energy issues is unconstitutional. (Under the 2006 constitution, the government reports to the parliament, not to the president.)

In an April 2008 speech to the Parliamentary Assembly of the Council of Europe, Tymoshenko announced a dramatic shift within the BYuT towards support for parliamentarism.

Their second conclusion was that without presidential support for the holding of a referendum, the only way the constitution could be changed was through a constitutional majority. But two successive attempts, in September 2008 and May 2009, to form a BYuT-Party of Regions coalition with the aim of pushing through constitutional reforms that would strengthen the parliament both failed, partly due to personal mistrust but also to Party of Regions' demands to have their cake and eat it.

While supporting a president elected by parliament (i.e. full parliamentary system), Party of Regions Chairman Viktor Yanukovych simultaneously sought a "guarantee" of two presidential terms with extensive powers similar to those bestowed on the president in the 2006 constitution. German Chancellor Angela Merkel pointed out to Ukrainians in May that parliamentary presidents are ceremonial.

Halfway To Nowhere

Two further factors are of direct relevance. "Semi" political systems, whether presidential (as in the 1996 constitution) or parliamentary (as in the 2006 constitution), are recipes for instability and conflict.

If Ukraine really wants political stability and an escape from constitutional and legal chaos, it should change the constitution either to a full presidential system or towards a full parliamentary system.

Prime Minister Tymoshenko acknowledged the inevitability of that choice in the course of a lengthy interview on Channel 5 on June 11. "Semi" systems do not divide powers clearly and are therefore recipes for "chaos," she stressed.

Nearly two decades after the disintegration of the Soviet empire, the 27 postcommunist states are divided into two groups: those in Central-Eastern Europe and the Baltic states have parliamentary systems, and those in Eurasia -- presidential systems. The two exceptions are Ukraine and Moldova, with semi-parliamentary and parliamentary systems, respectively.

Parliamentarism and democratization went hand-in-hand in Central-Eastern Europe and the Baltic states, facilitating their integration into NATO and the EU. Parliamentarism could therefore further integrate Ukraine into Europe.

Ukraine's transition from a semi-presidential to semi-parliamentarian constitution has completely overshadowed Yushchenko's presidency. Personality, ideological, and gender factors have been compounded by constitutionally unclear divisions of powers.

U.S. Judge Bohdan Futey noted this month in a Ukrainian legal journal that "these [constitutional] changes interlaced the power of the executive and legislative branches, leaving the country in legal turmoil to this day."

Yushchenko’s presidency has been dominated by political crises, governmental instability, elite in-fighting, and constitutional chaos that have combined to undermine the potential generated by the Orange Revolution.

With the constitutional question still unresolved as the Yushchenko era nears its end, Ukraine will enter the January 2010 election campaign in the same state of constitutional uncertainty as it did five years ago.

Source: Radio Free Europe


UkrToday said…
A number of false and misleading statements.

The Constitutional Court ruling that amendments to Ukraine's Constitution must be approved by Referendum only appplies to amendments to Chapter I — "General Principles," Chapter III — "Elections. Referendum," and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine"

The parliament with two-thirds constitutional majority is entitled to amend the remaining Chapters (A fact that been reaffirmed by Europe's Venice Commission)
UkrToday said…
Yushchenko's Proposed Constitutional reforms does not meet modern democratic values

Yushchenko's draft constitution would see Ukraine become a Presidential autocracy with power concentrated in the hands of the President

Yushchenkos proposed establishment of a bicameral Parliament and the creation of a Senate would futher divide Ukraine and diminish Ukraine's democratic development

The proposed Senatorial model is undemocratic in that it seeks to give greater power and representation to smaller Western Ukrainian regions.

The electorate of Zakarpattia which has just under 600 thousand voters will elect three senators the same number as in Donetsk which has over 2.5 Million constituents.

The distortion in the Senatorial representation is made worst by the proposed implementation of first-past-the-post "Majority" voting where the highest polling candidate/party wins all seats.

Yushschenko's Party "Our Ukraine" based on analysis of the 2007 Parliamentary vote will elect all three Senators in Zakarpattia with 152,886 votes (32%) whilst Block Yulia Tymoshenko with 28% of the vote will go unrepresented.

Party of Regions in Donetsk with 1.7 million votes will elect only three Senators.

Further Yushchenko has proposed that past presidents (Including himself) will hold a Senate seat for life. President who are only elected for one tern and are voted out of office would continue to remain in office unelected for life.

The President will have absolute Power and right to dismiss the Chamber of deputies without checks and balances.

There is no provision for the dissolution of the Senate. Senators will hold a six year term of office with one third of the Senators facing election every every two years.

Ukraine would have to fund at least five National elections at a cost of over 100 Million dollars per round during the life of the term of office of the Senate. Simultaneous elections are prohibited.

The President will have absolute immunity and only the Senate can impeach the president if he is found guilty of having "Intentionally" committed a crime. Beaches of oath and Ukraine's constitution whilst grounds for dismissal of judges are not grounds for impeachment.

The President appoints all judges including all judges of the Constitutional Court.

Referendums on issues related to International Agreements such as NATO membership are prohibited.

The Chamber of Deputies right to hold an inquiry is limited to the authority of the Parliament and the Cabinet of Ministers. The Parliament can not review or hold inquires in relation to other issues such as the conduct of the President and Departments under his control.

Public prosecution and the Internal Police are all under the domination of the President with little to no checks and balances in place to prevent misuse and abuse of Presidential power.

Whilst supporters of the President may welcome the restoration of a n Presidential authoritarian state they should think twice before endorsing Yushchenko's proposed constitution.

Recent public opinion Polling indicates that Yushchenko will not be re-elected to a second term of office. Viktor Yanukovch has poll position and will most likely be elected Ukraine's next President

They need to ask themselves is Yushhenko's model for unchecked Presidential power really in Ukraine's best interest? Or is Ukraine better off adopting a Parliamentary democracy in line with other European States.

25 out of 27 member states of the European Union are Parliamentary democracies.

If Ukraine wants to be a member of the EU is it not in its best interest to adopt European standards and European Constitutions as their model for reform.

Once these changes are in place there is no going back as the Constitution will not be able to be readily corrected.
Anonymous said…
The political turmoil will only end when Ukrainians are allowed to vote for specific candidates instead of voting for a party!
UkrToday said…
Tom yes I would agree, the "Imperative mandate" that Yushchenko relied on when he dismissed Ukraine's previous Parliament is seriously flawed in design and implementation but this does not mean that you need to through out the baby with the bath water.

Yushchenko's proposed contitutional reforms are not what I would call democratic or worthy of support. "Wrong direction backward step"

Principles of a good, workable and democratic representative Parliamentary model

1. Ukraine MUST become a full parliamentary democracy in line with other European states.

2. Ukraine would be best adopting a unicameral parliament with multi-member local electorates.

3. Each electorate should be equal within +/- 5% equal in the number of constituents.

4. The system of election should be "Singe Transferable Vote" - Preferential Proportional Representation.

5. The method of counting the vote should be by the Meek's method.

6. Each electorate MUST have the same number of representatives elected.

7. It is essential that each electorate is equal in representation

8. Each electorate should elect either five (5), seven (7) or nine (9) members of parliament (Rada).

9. The quota for election would be 16.67%, 12.50% or 10.00% respectively.

10. The Head of State should be appointed by a constitutional majority of 60% of the parliament as is the case in Moldova.

"Where there is no counsel the people fall but in the multitude of counselors there is safety"

Strict limitations and terms of consideration must apply in a head of states right to dismiss the democratically elected government. The government should only be dismissed on the vote of no confidence of the parliament and a new coalition representing a majority of the parliament can not be formed within a statutory period.

Any decision to dismiss the Parliament without consent should also trigger an early election of the President (If they are directly elected). A President who has to also face the people will think twice before calling snap elections.

The Prime-minister and government ministers to be elected from the Parliamentary governing coalition along the lines of the British Westminster system or other European Parliaments

The role of Ukraine's head of state should be a unifying and supportive ceremonial role with limited administrative power.

Analysis indicates that Ukraine would be better represented by the above model.

The above model is by far more preferable and more democratic then the model proposed by Yushchenko. It takes the best of all systems. Ukraine would the leader in democratic representation.

Power must be held in the hands of the peoples elected representative parliament.

It MUST scrap the two round "first past the post voting system" and adopt a preferential ballot.
UkrToday said…
The cost of gambling with democracy

proUA has an insightful article on the cost of the presidential campaign which places the true cost of Ukraine's presidential office way above the 1.5 billion hryvinas budgeted for by Ukraine's Central Electorate Commission.

Moldova's Constitutional Parliamentary appointment system is looking good.

"According to assessments by political analysts, each presidential candidate will have to spend at least US $150-200mn to promote himself; this includes buying story lines in the media, visual advertising, canvassing, printing political material and, of course, work with electoral commissions"