04.10.2005 | Halya Coynash

A reform by any name …


In heady, tumultuous December the world watched with admiration as, in the aftermath of the Supreme Court’s overturning of the manifestly rigged election results, the Ukrainian Verkhovna Rada [Parliament] swiftly passed a “package” of amendments to electoral laws, as well as constitutional changes affecting the role of President and parliament, which Leonid Kuchma just as rapidly signed into law.  There seemed cause for enthusiasm: after all, not only were electoral changes being introduced which could eliminate the possibility of further shenanigans, but the likely new President was actually prepared to hand over some of his powers to parliament.  Laudable, indeed!

Perhaps not surprising, although regrettable, nonetheless, that little heed was taken of reputable human rights organizations such as the Kharkiv Human Rights Protection Group (KHPG), the Ukrainian Helsinki Human Rights Union (UHHRU) and the many constitutional law experts, who had previously presented well-argued grounds for rejecting the constitutional amendments being suggested. In December they again spoke out publicly against the same amendments and the manner in which they were being pushed in as a condition of agreement to crucial electoral law amendments.

Since this hybrid creation has raised its head again in woefully similar circumstances, it would be well to consider these behind-the-scene deals before turning to the substance of our concerns.  The “package” vote of December could be described in less salubrious terms.  When bargaining turns into blackmail is a moot point we will leave to the reader to determine.  Clearly, in the conditions that existed in December, there was urgent need for laws which would eliminate vote rigging, and enable the voice of the people to be heard not only on “Maidan” (Independence Square in Kyiv and central squares in many other cities throughout Ukraine), but by the Central Election Committee and those trying at all cost to hold on to power.  However the fact that so few noted the (apparently) improbable band of those pushing for the “package”, including the head of Kuchma’s Administration, the leader of the socialists and of the communists, might surely have made more observers raise an eyebrow or two … Not to speak of the extraordinary haste with which the outgoing President was prepared to sign these changes into law. 

In September 2005, the honeymoon over, Yushchenko faced his first major crisis.  This article concerns more fundamental issues – unconstitutional amendments to the Main Law of the Nation, and we will leave it to others to debate the wisdom of his moves.  The fact remains that at a time of political impasse, the President signed a Memorandum with his former presidential opponent, the first point of which is a commitment to introduce the “political reforms”.  Again, remembering the millions who stood in freezing December conditions day and night defending their choice of candidate and right to not have this gentlemen foisted on them through rigged elections, the role of Yanukovych as mouthpiece of reform is unexpected, to say the least.

So what are these “political reforms” in the shape of constitutional amendments that the world was delighted to mention in passing, as an appendage to electoral reforms, last December (just as certain politicians had hoped)? 

The following gives the key points of concern.  More detail can be found on the websites of KHPG and Maidan International – cf. the references below.

Reduced powers of the President. 

Under the so-called “reform” a number of the powers which the Constitution assigns to the President of Ukraine would be given to the Cabinet of Ministers. 

There is a bitter irony in the fact that it was the very presidential candidate for whose rightful election so many people were prepared to risk their jobs, education, and perhaps, since it is a miraculous achievement that the Revolution was bloodless, their lives, should have been forced to accept such amendments. 

More importantly, there is a serious constitutional flaw here, since these changes were introduced between two rounds of voting in Presidential elections.  Those who voted for Yushchenko (or Yanukovych) voted for a President with certain, constitutionally fixed, powers.  These powers must not be taken away from him during a presidential term

Muddled powers of the President and of the Cabinet of Ministers

Firstly, if the “reforms” come into effect, some of the members of the Cabinet of Ministers will be appointed by and answerable to the President, while others will be chosen by and answer to the Verkhovna Rada and Prime Minister. 

One can assume that they will at least remember who they’re accountable to, but if one considers that ultimately they are all answerable to the people, this cannot be considered an auspicious situation.  The division of roles within one branch of power will inevitably lead to competition and likely conflict between President and Prime Minister which, given the unfortunate spectacle seen by all in September this year, should be treated with the seriousness it deserves.

While a considerable number of the powers presently vested in the President, have been passed to the Verkhovna Rada, the President’s ability to dissolve the latter has increased three times.  Surely a recipe for either disaster or for pretty embellishments and icing to a cake whose ingredients remain entirely unchanged (and still just as unhealthy).

For a country with a young democracy, there are significant advantages to having a President with a real, not decorative, role.  There can be situations where a decision is needed swiftly.  One should not underestimate the vast scope for corrupting individual members of the Verkhovna Rada, as well as the likely stalemates caused by brutal power struggles between different factions.  Nobody is suggesting that the President of Ukraine must be above such venal weakness (and only a person who had slept through the past 14 years of Ukraine’s history could!), however there are mechanisms available for impeaching a President.  Surely it would make more sense to strengthen these mechanisms, than to make power, and with it, responsibility for decisions taken, more diffuse?

Increased role of party factions in the Verkhovna Rada

Two changes are of major concern here.  The constitutional amendments both formalize a system of proportional representation which has never received sufficient consideration, and set out grounds and mechanisms for removing State Deputies from office.  Justification for removing them would be, among other things, bucking the party line, that is, going against a party / bloc’s stand or leaving the ranks of that specific party or bloc. 

One can argue that individuals are more easily corrupted than entire parties. This, again, is a matter of debate.  What is less in dispute is the desirability, indeed, urgent need in a democratic state for people’s representatives who are primarily in office to represent their constituents’ interests.  This can hardly be expected from Deputies who know that their job, and the considerable benefits which come with it, will be at stake if they don’t follow the party position.  This also provides the leaders of these parties with an unacceptable degree of power, and a virtual carte blanche to use this power with impunity.

Post-Soviet or not so very post ….

The President will require the consent of the government to appoint or change the Prosecutor General.  More disturbingly, the latter has again been given, albeit reduced, powers of surveillance. In post-Soviet Ukraine this restoration of powers so abused in Soviet times evokes understandable suspicion.

How do you reform the Rule of Law?

The “political reforms”, in as much as they affect the Constitution are, quite simply, unconstitutional.  The Main Law of the Nation – the Constitution - is quite clear as to how fundamental amendments (and the changes thus far mentioned are hardly cosmetic) must be introduced.  Major changes must be approved by national referendum.  It is also unambiguous as to when changes should not be made, that being at times of unrest, state of emergency etc.  Whether or not the requisite papers were signed and the UN informed as to the imposition of a state of emergency, would anyone seriously wish to suggest that the situation in December 2004 was an auspicious moment for making significant changes to any fundamental laws?

It should also be noted that the draft law introduced on the back of electoral changes in December differed significantly enough from that which had passed through its previous reading in the Verkhovna Rada to require reconsideration by the Constitutional Court.

If anyone thinks this is a mere quibble, they should consider the importance that the Rule of Law has been given in the strongest and oldest democracies of the world and give some thought to the legacy Ukraine – and its neighbours – inherited, and the subsequent need to safeguard their young and fragile democracy. 

The millions who defended their right to choose their President from October to December 2004 were upholding the principles of the Rule of Law and the fundamental basis of democracy. They voted for a Guarantor of their Constitution, and are now calling on the President they elected to stand firm and to fulfil this role.  Nobody is suggesting that changes are not required, but they should be discussed correctly and not form part of a deal where the future of the country and its right to democratic elections is being held to ransom. 

We call on all of those people throughout the world whose moral support was crucial in those months where the Ukrainian people defended – and won – their right to be heard, their right to live in a democratic nation where the voice of the people must be heeded, to support us now.  This shameful behind-the-scenes pseudo-reform is not what we fought for and is not acceptable in a democratic state.

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