Parliamentary Review :: ЗИМА-ВЕСНА 2004 №16 :: The Romyr report :: Проекти

The need to reform Ukraine’s political system has long been a front burner issue. The general notion, introduced by opposition leader Viktor Yushchenko and appropriated by President Leonid Kuchma, claims support by all sides, but the debate revolves around the content of various reform proposals and the format of the resulting political processes. Indeed, the very nature of the contentious, ongoing struggle for change is proof positive of the need for change.

The evolution of a democratically developmental society and its political arm is currently under the stunting influence of rival political forces posturing for the upcoming 2004 presidential elections. Two foreign policy issues color the political climate, too, those being Russia’s territorial claims on Ukrainian land and the status of the Treaty on the Formation of the Common Economic Space (CES) by four CIS countries.

The CES is clearly the brainchild of Kremlin politicians devising a new model of economic and political integration between Belarus, Kazakhstan, Russia, and Ukraine. It and other similar efforts seeking to bring these nations closer are clearly not crafted to favor the best interests of Ukraine, but simply a reaction to the demise of the CIS. The first Vice Prime Minister and Minister of Finance Mykola Azarov, an active champion of the CES initiative, presented it to members of parliament as the common economic space in which the participating countries standardize customs regulations thus permitting the free circulation of goods, services, and capital. The CES model provides a single framework for foreign trade, tax, and monetary policy

While the general outline of the Treaty met little opposition among MPs, many strongly objected to the provision requiring member states to abrogate some powers to a single regulatory body whose decisions will be binding on all CES partners. Although decisions of this commission would have to be approved by vote, each country would be allocated a portion of the total voting bloc commensurate with its economic strength. Under such a structure, Ukraine would control 10% of the total votes while Russia would control 80% thus making it possible for binding agreements to be approved without Ukrainian consent. Moreover, the Treaty provides for inequitable partnership between CES member-states. Given that the treaty fails to identify the specific powers which would be controlled by the commission, it opens the possibility that some presidential and/or parliamentary powers could be invalidated by becoming a signatory. That scenario puts the treaty in violation of Articles 75 and 106 of the Constitution of Ukraine.

The Treaty conflicts with the laws of Ukraine in other areas as well. By combining customs policy with other CES countries, Ukraine cripples its hopes for accession into the European Union (EU) and the World Trade Organization (WTO). In signing the CES treaty, Ukraine faces the prospect of being allowed to join the EU and the WTO only if its CES partners were in EU and WTO compliance on customs regulation, clearly a daunting impediment. Moreover, by adopting a single foreign trade, tax, and monetary policy for unification of customs tariffs on the CES borders, Ukraine would contradict WTO tariff policy.

With this in mind, the Verkhovna Rada passed a Declaration requiring all provisions of the Treaty to agree with the norms of the Constitution of Ukraine. In other words, Ukraine signed the Treaty with the reservation that it will carry out only those provisions that do not contradict its Constitution. Analysis of the Treaty and of the reservations made by the Ukrainian side indicates that Ukraine unconditionally agreed only to the creation of a free-trade zone.

As a sidebar to this current effort, Ukraine signed and ratified a bilateral free-trade agreement with Russia several years ago. The Russian parliament, for its part, has still failed to act on the measure proof that Russia is not as much interested in having a free-trade zone with Ukraine as it is in need of a regulatory body to take full economic control over its CES partners

While this recent attempt to encourage free trade has not been altogether successful, the Kremlin has taken the first step towards implementing its strategic plan. It remains to be seen whether the Ukrainian parliament will ratify the Treaty. Analysts cite several factors that may influence Ukraine’s decision to join the CES. Among them is the border dispute at Tuzla.

Before the ink was dry on the CES Treaty, Russia began a risky venture involving the construction of a dam on the Ukrainian isle of Tuzla. In Kyiv, the Ukrainian parliament reacted sharply to the territorial claims of the northern neighbor with deputies demanding a revision of economic relations with Russia, in particular the recent agreement to join the CES. President Kuchma voiced similar sentiments. In later comments, however, Kuchma seemed to back away from his initial strident tone as the two sides entered into negotiations on the matter. At that point, Kuchma claimed the border dispute had no bearing on Ukraine’s decision to join the CES. Still, in the Ukrainian parliament, the attitude towards Russia had markedly changed. Where MPs had once expressed unquestioning trust regarding Russia, now there was spirited talk of a need to adopt a new national security doctrine and reestablish a nuclear arsenal. Not all MPs were so zealous in their reaction, but there was a sense of genuine patriotism to fend off further Kremlin maneuvers.

Attacks on the budget are commonplace, and Budget 2004 proved no exception as it received its fair share of criticism. Major wrangling focused on figures regarding revenue streams and the minimum wage. The opposition demanded a 4.5 billion UAH increase on the value of the budget’s revenue figures and insisted on setting a 237 UAH minimum wage. The Government agreed to some concessions during the first reading increasing revenue by 2.6 billion UAH, but, backed by the majority, left the minimum wage at 205 UAH. There was none of the usual prolonged debate about the budget during subsequent hearings as the final draft was approved by 234 majority deputies in the second hearing with virtually no further discussion.

The declared goal of political reform is a transition from a presidential-parliamentary to a parliamentary-presidential form of government. Advocates of the reform say it will limit presidential powers and broaden the powers of parliament, provide for parliamentary elections by a proportionate system, and vest a stable parliamentary majority with the power to form a coalition government.

The previous (third) session of the VR discussed two versions of the changes to the Constitution: one authored by parliament; another, by the president. These were passed on to the Constitutional Court for examination although Kuchma recalled his version from the Court.

As Parliament convened for its fourth session, there existed two versions of the political reform measure: the parliamentary version and a third reform proposal. Authored by the Head of the Presidential Administration Viktor Medvedchuk and Communist Party leader Petro Symonenko, the proposal is commonly referred to as the Medvedchuk-Symonenko proposal. With some reservations, the Constitutional Court found both versions in compliance with the Constitution.

The Medvedchuk version unexpectedly garnered the support of Communists and Socialists alike although, in fact, their motives are easily explained. Changes to the Constitution can only be passed by 300 votes (a so-called constitutional majority vote). To achieve a quorum, the current parliamentary majority must find allies among the Communists who have a history of leaving the opposition camp to bind with pro-presidential forces. On this matter, too, they decided to lend their voice to the majority. The Socialists joined up as well.

A reasonable, formal argument could be made for their decision by citing the left’s long-standing commitment to the idea of creating a parliamentary republic. The more practical argument goes that the left will benefit little from a Yushchenko presidential victory. For the time being, Medvedchuk is untroubled by the ideological differences between him and his new left-wing allies. More critical to him is the immediate matter of allying with the Communists and Socialists to muster the 300 votes required to amend the Constitution.

Reform is still not a sure thing, however, since the authors of this version of the reform package overlooked an important detail: their idea lacks the support of those MPs elected in single-mandate districts that compose a considerable part of the current parliamentary majority. The plan has yet another drawback which can ironically affect Medvedchuk himself. No matter who is elected president in 2004 under the existing election code, the powers of the Presidential Administration (and therefore of Viktor Medvedchuk himself, quite possibly) will be considerably restricted.

To overcome these drawbacks, Stepan Havrysh, a coordinator of the parliamentary majority, crafted yet a fourth proposal for constitutional reform. Under the Havrysh plan, parliament would elect the president in 2004 and the term of the current parliament would be extended by one year until 2007.

Some analysts have called Stepan Havrysh’s proposal self-serving, but the final verdict rests with the Constitutional Court. Despite the obvious strengths of this project, it was dismissed by the Socialists with the Communists expressing some reservations as well. Socialist leader Oleksandr Moroz opposed the idea of having parliament elect the president expressing the same reservations he had regarding the Medvedchuk-Symonenko proposal, although he eventually supported that plan. Later Moroz clarified his position saying that the parliament could be vested with the power to elect the president but no earlier than 2010.

One more aspect of the constitutional reform should be taken into consideration. Both the parliamentary and Medvedchuk-Symenenko proposals provide for parliamentary elections by a proportionate system. However, the parliamentary majority opposes such a system. President Kuchma also voiced support for a proportionate system of parliamentary elections yet six times he vetoed bills on the election reform that provided for this approach. The contrast between rhetoric and action casts doubt on the president’s commitment to true reform. It also s uggests that ulterior motives are directing the fate of these proposals.

Clearly, the real inspiration on the part of the president and the parliamentary majority to adopt constitutional reform is to prevent Yushchenko from winning the upcoming presidential elections. Whether co-opting the issues of political and election reform bills by having a slate of pending legislation or organizing activitists to disrupt OU rallies in eastern Ukraine, Yushchenko’s opponents have one goal: to keep the OU off balance. With only a limited capacity to parry, the OU faces the reality that if these tactics against them succeed, they will help to determine the ultimate voting positions of factions like the Communists who leverage their influence through a strategy of situational opposition where their dwindling strength yields the most clout.

By the end of October, discussions on the parliamentary elections reform bill had deadlocked. The majority refused to support the opposition’s offer to conduct elections through a proportionate system while the opposition snubbed Havrysh’s alternative bill (which is not to be confused with Havrysh’s political reform bill.) In a curious play of semantics, Havrysh himself calls his election system proposal a bill a proportionate one. It envisions voters casting ballots in single-mandate districts for candidates nominated by political parties and election blocs. The success of a party or bloc is determined by calculating the total number of votes cast for its candidates in all districts. A candidate becomes a member of parliament if his or her party has received a required minimal percent of the total vote (which must exceed a minimal percentage) and he or she meets the quota the party has in parliament. While it is interesting, this method is somewhat complicated and far from proportionate. Analysts can identify some advantages in Havrysh’s rubric, but it seems the true intent of offering multiple models of election reform is to avoid the advent of a proportional scheme that would benefit the opposition.

Political struggle continues asymmetrically. The parliamentary majority is able to pass virtually any bill except those related to amending the Constitution for which it needs the support of other factions. For the most part, however, the ability of the OU bloc to affect the outcome of voting is limited to obstructing passage of unfavorable legislation.

This simmering political reality reached a full boil after an October 31 OU rally in Donetsk was disrupted with the tacit support of some local authorities. Back in the capital, OU loyalists demanded explanations from the Interior and Education Ministers, the latter clearly implicated in the affair since local students participated in the Donetsk protest. OU faithful demanded that a special parliamentary commission be created to investigate the incident, but the majority obstructed this effort which garnered a dismal 197 opposition votes. In response, OU resorted to blocking the speaker’s podium insisting the majority agree to investigate the nature of the Donetsk riots. Although effective, the OU’s dramatics obstructed the work of the lawmaking body thus giving Mr. Kuchma a chance to stand above the fray and ask the Constitutional Court to rule under what conditions the President is permitted to dissolve the parliament. Kuchma’s ploy was designed less to receive a ruling from the Court (the conditions for dissolution being clearly delineated in the Constitution, and overrunning the podium is not among them) and more to pressure the deputies to behave.

Regardless of the propriety of instigating a riot or storming a speaker’s podium, the behavior of both sides aggravated the atmosphere in parliament with many MPs unable to predict how the incident would eventually affect voting. Publicly and privately, deputies voiced the need to compromise and return to a normal parliamentary agenda. In the end, the tension was relieved as the opposition exhausted its revolutionary enthusiasm and the majority proved it retains the power to determine the direction of the lawmaking body.

And on December 24, 2003, the majority by 276 votes passed Bill ¹4105 on constitutional amendments that cancels direct popular vote for the President and provides for the election of the President by the Parliament. Because of vigorous protests of the opposition that obstructed the work of the Verkhovna Rada, majority members had to vote by raising their hands. After this speaker Volodymyr Lytvyn signed the bill and sent it for a repeated expertise to the Constitutional Court.

Members of the opposition hold the view that electing the President in Parliament deprives Ukrainian citizens of their right to choose the Head of State. Moreover, according to them, the voting on the constitutional amendments did not follow the required procedure – hence its results are not legitimate.

Both the majority and the opposition were unwilling to compromise, and when the Parliament convened after holidays, opposition members again blocked the rostrum and the speaker’s place voicing demands to annul the results of the voting on constitutional reform. This confrontation obstructed the usual work in the Parliament and soon forced the speaker to close the fourth session of the Verkhovna Rada ahead of schedule.

Events in the Verkhovna Rada aroused concerns in the Parliamentary Assembly of the Council of Europe (PACE) that put the question of parliamentary and constitutional crisis in Ukraine on the agenda in January. PACE Monitoring Committee rapporteur Hanna Severinsen was critical of the process of the constitutional reform in Ukraine. According to Severinsen, voting on the bill on constitutional amendments was held with the use of force. Moreover, she questioned the fairness of the very attempts to amend the Constitution half a year before the presidential elections. Severinsen expressed the view that putting the bill to vote once again following the usual procedure could help resolve the conflict. In response to pressure from PACE, amendments were made to the reform package in January, which call for the President to be elected directly by the people.

The Constitutional Court finding in mid-March 2004 posted another milestone on the road to political reform. The Court upheld the Medvedchuk-Symonenko proposal a second time, opening the door to redefining powers between parliament and the president and establishing a parliamentary-presidential form of governance. Furthermore, as a result of the March Constitutional Court ruling, the parliamentary term of deputies can be extended to 5 years and a government can be formed by the party winning an election, which would be held on a proportional basis system. So, if parliament can muster the 300 votes to pass the required laws for implementing the proposal, Ukrainians may be able to hold popular elections every five years, for choosing their president – beginning this year, and for choosing their parliamentary deputies – beginning in 2006. The Court refused to consider the issue raised by opposition parties of whether the vote in parliament on December 24, 2003 was legal, noting that this was a matter governed by existing parliamentary procedure not the constitution.

Less then one year before presidential elections, politicians and analysts characterize the situation in the Ukrainian parliament and in society itself as quite turbulent. This parliament, with such a different profile from the previous one, will determine the plot twists of future political intrigues as various factions jockey to have their presidential candidate anointed the favorite son. There will be plenty of rhetoric on the theme of the need for both sides to compromise, but this is mere bluster. The upcoming battle will be uncompromising. There is a feeling that evolutionary changes leading to a stratification of the Ukrainian parliament and, indeed, society on the whole are also in motion. The political romanticism and naïveté that were hallmarks of the early days of democracy have faded into memory replaced by an awareness of the tasks and goals of political struggle and a sense of responsibility that it eventually leads to positive outcomes.

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