Dialectic of political reform

Politicians and political experts interpret the results of recent sociological surveys differently, but most agree that the reason may be found in the political reform. Some regard it as a factor substantially slowing down progress and preserving the current political rule of clans. Others say it is a starting point for moving further in the direction of the advanced European democracies.

The attack by Yulia Tymoshenko’s bloc on the political reform last week sparked serious and somewhat aggressive responses from various politicians. Vasyl Tsushko, leader of the Socialist Party of Ukraine (SPU) faction, declared that canceling the political reform may lead to the start of impeachment procedures. Bolstering the juridical basis of his conclusion, he said it should not be forgotten that the constitutional reform was adopted in a package with the resolution on the third round of the presidential elections. Therefore, abolishing this reform would invalidate the result of the elections. This, in turn, will lead to “the kind of conflict no one wants: destabilization of the country. There will be no second Maidan, but uncontrolled processes may well begin.”

Speaker Oleksandr Moroz decided to smooth over the rough edges of his fellow party member’s statement. He pointed out reasonably that any talk of impeachment “is not even a topic of discussion.” He further expressed confidence that the constitutional reform will continue, even within local self-government. This may be one of those rare cases when the speaker’s words can be taken seriously. After all, improving the political reform is the only way to save his brainchild.

As it turned out, the grateful president was the first to lend him a helping hand. Addressing a press conference in Kharkiv, Viktor Yushchenko declared that he will soon sign an edict setting up a constitutional commission to formulate a uniform stand on matters relating to the prospects of Ukraine’s development.

Viktor Baloha, head of the presidential secretariat, commented on the president’s statement, telling journalists that the commission will be established to “polish” imperfections. He assured his listeners that this polishing will be of an exclusively working nature and will have absolutely no effect on the existing system of power. Even so, the opinion of 60 percent of the population will be ignored once again.

We asked The Day’s experts to comment on which various scenarios for the development of the constitutional reform would be acceptable to Ukraine, and whether they are at all possible.

Volodymyr MALYNKOVYCH, director, Ukrainian branch of the International Institute for Humanitarian and Political Research:

Our nation spent centuries under authoritarian regimes, be they tsarist or communist. Therefore, this statistic shows that our people, lacking democratic experience, have nothing to say on the subject. However, I believe that we need the parliamentary reform because the most prosperous countries have parliamentary democracies.

Therefore, we can only discuss measures to improve but not cancel the political reform, particularly in terms of updating the law on elections in Ukraine. The problem is that there is centralism within the parties, so as a rule party structures are unable to nominate their candidates to parliament. All decisions are made by parties’ central committees.

One way to solve this problem is by democratizing party statutes, which will allow the possibility to consider regional opinions when forming slates, and by changing the “Law on the Election of People’s Deputies.” For example, by adding a clause to the effect that the first five represent the party’s central apparatus and the rest is a mixed system in which one nominee comes from the center and another one from the regional organization that received the largest number of votes. I think that such changes will not be hard to introduce with 226 votes.

Constitutional reform requires a different sequel. It is necessary to introduce changes concerning the regional authorities, changes envisaged by Bill No. 3207. However, the problem is that the parties that prepared this bill (Our Ukraine and the BYuT) are now sure to vote against it because if it takes effect, the president will no longer be within his right to appoint his representatives with extensive powers to the regions. In other words, his representatives will be able to act only as prefects tasked with monitoring observance of the law, whereas representatives of raion and oblast councils will implement all the current policies.

Unfortunately, our Constitutional Court has always been markedly unscrupulous. Remember its unsubstantiated ruling on Kuchma’s third term. Even now there are more supporters of the president in the CC than opponents. They may well decide to revise the political reform. In my opinion, this would be sheer nonsense from the legal standpoint. The court’s task is to determine whether some norms of law conform to the Constitution of Ukraine. The political reform is already part of the constitution; the parliamentary presidential republic is legally sealed in the constitution, so changing it by the Constitutional Court would be absurd.

Although I do not rule out this scenario, I do hope that it will never play out. Otherwise this country may witness a very serious conflict, like the one in 2004.

Liudmyla SUPRUN, leader of the National Democratic Party:

We all remember that Ukraine first lived in conditions when the elections were held according to the majority system. Naturally, all branches of power — legislative, executive, and judicial — existed to balance off each other.

After we switched to the mixed system, it became clear that the current system had actually stopped functioning. Political groups have emerged, each wishing to have all the power in its hands.

Political reform is a transfer to an absolutely different structure of power that is balanced by the opposition.

The problem is that the constitutional norms are in effect, but there are no laws that can make these norms work. The absence of laws on the interaction between the government and the opposition, considering the effective systems of control over the government, may result in the opposition turning into a puppet that no one will need. Like a red rag for a bull, it cannot kill but it is nerve-wracking.

The Day: Can the Verkhovna Rada adopt such laws?

L.S.: Hardly, because each parliamentarian will try to pass bills that suit him best. Since the government has everything under control, including 226 seats in parliament, they can have any bill passed, including the law on the opposition. Under this law the opposition members will be able to get up early in the morning, brush their teeth, comb their hair, get dressed, and continue lashing out at the government. This may seem to be a lot, but in reality it means nothing.

There is also the problem of forming the cabinet.

On the one hand, the president, who remains the guarantor of the constitution, belongs to a different political camp and can use his right to veto any bill submitted by the cabinet, which does not have 300 votes to override the presidential veto. But since the powers vested in the cabinet are not clearly formulated, neither the president nor the Verkhovna Rada can retire it.

In addition, there are no mechanisms for recalling parliamentarians, and all this is concealed by collective responsibility, or rather irresponsibility. And so we can see only too clearly how desperately political forces that until recently were campaigning for the rights of those children of war are clinging to power. Now they prefer not even to mention the fact.

All these legislative collisions may result in a collapse in an extreme political situation — for example, if the president joins the opposition. This would be a problem for all of Ukraine, especially now that no one except the Constitutional Court can interpret Ukrainian legislation. Most likely, the court will issue ambiguous formulations or even avoid explanations.

The biggest problem remains on the level of local authorities.

The last parliamentarian elections, specifically the party slate system of casting ballots, were actually totally at variance with the constitution. The latter makes it perfectly clear that raion and oblast councils represent territorial communities, not parties. In urban areas this slate system can somehow be tied to the constitution, but in raions that manage the joint property of territorial communities, elections by party slates contradict constitutional principles.

Of course, relations within these councils, between executive committees and heads of administrations, are virgin soil. Bill No. 3207 gives rise to more problems than solutions, among other reasons because it envisages the simultaneous existence of two executive structures within the same organ; two bodies within the same jurisdiction. It’s like one body with two heads; one wants a glass of water, the other — a glass of vodka.

Summing up the topic of continuing the political reform, I believe that we should return to the mixed system, with majority candidates serving as a counterweight for those nominated by party slates. Every bill must be adopted by territorial representatives. Otherwise it will be like it is now, when large sums are allocated for only one oblast, for the construction of airports, creating new jobs, and so on. This one-sided approach does not serve Ukraine’s good, nor does it foster the development of a democratic system.

Viktor NEBOZHENKO, Ph.D., political scientist, president, Trident Corporate Support Agency:

In my opinion, it is no longer possible to return to a strong presidential republic, unless of course Yanukovych will want to. He is the prime minister, but his psychological type is such that he would prefer to be president of Ukraine and with extensive powers, rather than depend on an amorphous parliamentary majority. However, since the scale is tipped in the direction of a parliamentary republic, I guess the constitution will never be revised.

Another thing is that it is necessary to sort out the relationships between the president and prime minister, and between Kyiv and the regions. Here such political relations must still be worked out.

Therefore, a revision of the constitutional reform is possible only as a revision of jurisdictions, boundary lines between the president’s reduced authority and the increased authority of the prime minister, because these were never established in the first place. The 2004 amendments were not systematic but the result of political bargaining, and this is having an effect not only on Yushchenko’s performance but also on the cabinet’s legitimacy. Even though it is gaining political strength, the cabinet has no guarantees that a court of law will not eventually enter into a legal conflict with some agencies, which may well happen to the retired ministers. They are demoralized now, but in time they may contest their retirement in court.

Therefore, both Moroz and Yushchenko’s constitutional commissions will decide on questions of a boundary line, the division of jurisdictions, and responsibilities. In other words, they will try to build a kind of Wall of China that no one will be able to scale. Some will have more power, others will have less. In this scenario, the president will have less power. Yushchenko understands that there is no turning back, and he is even interested in the cabinet and parliament playing a greater role in the decision-making process because this will help avoid a number of conflicts. If these commissions lead to nothing, the situation may reach the point of forceful conflicts. As for local self-government, then during the move in the direction of a parliamentary republic, the matter of recalling parliamentarians, especially members of local councils, must be solved in a positive fashion. In addition, elections to local and central authorities must be held on different dates. I think that the Verkhovna Rada will also shorten local council members’ tenure, thereby shifting the date of elections of local elections one year earlier. But this will solve only part of the problem. In my opinion, we need a special law on elections to local bodies of power.