Sarah Whitmore

The beginning of the year saw Ukrainian parliamentary politics descend into a theatre of the absurd, as referendum plans precipitated a crisis of unprecedented scale. A split Parliament, hunger strikes and scuffles became the visible signs of a flawed institutional framework that the President accused of impeding long-overdue reforms. Although Parliament is now working constructively with the government, such developments may prove short-lived. The referendum highlights the need to make difficult, long-postponed decisions on the separation of powers and address the question of whether the possibility of economic reform should be prioritised over the presidency - to the potential detriment of democratic checks and balances.

Following his re-election in November 1999, President Leonid Kuchma announced that if the Parliament (Supreme Council) did not form a pro-government majority, he would hold a referendum to alter the Constitution and reduce its powers. Extracting compliance from Parliament by threatening a referendum is a proven tactic of Kuchma's that plays on his greater popularity and resources vis-ŕ-vis Parliament. This method won him extra powers in 1995 and in 1996 galvanised Parliament into adopting the Constitution after years of contestation.

The 1996 Constitution was a compromise document that balanced powers between the President and Parliament, but left many important areas unclarified and postponed difficult decisions by leaving them to be resolved through ordinary legislation. This meant that although the constitutional framework provided channels to mediate inter-branch conflict (such as the establishment of the Constitutional Court), the lack of a clear separation of powers created incentives for each branch to try to wrest prerogatives from the other.

Inter-branch tensions intensified following the parliamentary elections of 1998, which produced a polarised Parliament with no overall majority. The inability of the legislature to function was starkly demonstrated by the two-month period spent trying to elect a speaker. In the end, it was rumoured that Kuchma's intervention facilitated the election of left-orientated Oleksandr Tkachenko. Allegedly, the deal was that Tkachenko would keep Parliament in line and not run for President in exchange for the speaker's post and the dropping of an investigation into the embezzlement of USD 70 million.

However, Tkachenko reneged on the deal, often directing Parliament into confrontation with the executive and violating voting procedures to push through certain votes. Clashes escalated during the presidential election campaign, as Kuchma concentrated his attacks on the Supreme Council.

At the beginning of the year, as it became clear that a referendum would be called, Parliament passed, by a large majority, a moratorium on referenda. Curiously, this vote gained backing from pro-Kuchma caucuses supporting the referendum. However, this show of unity within the Supreme Council was effaced two days later on 13 January, following the announcement that a parliamentary majority had finally been formed.

241 deputies from 11 centre and centre-right factions and parliamentary groups comprised a heterogeneous mix of pro-reformers and entrepreneurs. Motives for joining ranged from the desire to back the new government in its reforms and the immediate necessity of adopting the 2000 budget to facilitate IMF loan rescheduling to avoiding early elections and preserving their deputy's mandate. The majority immediately announced its intention to change the parliamentary leadership and voting procedures.

From constitutional referendum...

Although Kuchma had always insisted that a referendum was necessary only in the absence of a parliamentary majority, two days after the majority's formation, the President announced the referendum would take place on 16 April. It is to contain six questions: on confidence in Parliament; on granting the President the right to dissolve the Supreme Council; on the creation of a bicameral assembly; on reducing the number of people's deputies from 450 to 300; on removing people's deputies' immunity from prosecution; and on the approval of the Constitution by referendum. Polls indicate that the President would receive the backing of over 50 per cent of the population on all six questions.

Constitutional experts have raised doubts about the constitutionality of some of the questions. The status of the referendum would also be dubious: The questions entail significant constitutional amendments, but how they would be enacted remains unclear. On 20 January, Kuchma said that the voters' responses to five of the six questions would be written into the Constitution "immediately" (RFE Newsline, 21.01.00). However, legally the Constitution cannot be amended by referendum alone, and changes need to be passed by the Supreme Council.

When announcing the referendum in January, Kuchma spoke of using the results as a "sword of Damocles" hanging over Parliament which would make it work effectively or force its dissolution (Zerkalo Nedeli, 15.01.00). In this way, the Supreme Council could be forced to alter the Constitution towards a presidential republic similar to Russia's.

Those in favour of the referendum believe the amendments will decisively clarify the constitutional separation of powers, ending inter-branch conflict and increasing the possibility of sustained economic reforms.

However, some analysts and politicians from both the left and the right have suggested the referendum could be a step closer towards growing authoritarianism in Ukraine, pointing to the example of Lukashenka's 1996 constitutional referendum. According to them, the constitutional changes are seen as a threat to the development of parliamentarism and democracy, as the Parliament could be relegated to a "rubber stamp" institution.

Sadly, the deputies' arguments against the referendum, which could have been strengthened by demonstrating to the people and President that the Parliament was a viable institution capable of co-ordinated action and rule-bound behaviour, were instead undermined by a deep parliamentary crisis.

...to parliamentary crisis

While the referendum threat was the main catalyst for the organisation of a centre-right majority, the blame for the parliamentary crisis that followed must be, to a large extent, laid at the door of parliamentary speaker Oleksandr Tkachenko.

By 19 January, the majority had gathered the necessary deputies' signatures and sought to place on the Parliament's agenda questions of confidence in Tkachenko and his deputy and to change the voting procedures to roll-call vote in order to boost "responsible" voting. Despite a sufficient number of votes, Tkachenko refused to put the items on the agenda, alleging procedural violations. As the session dissolved into chaos, the majority walked out and decided to convene an alternative session the following week.

And so, Parliament bifurcated. For two weeks, the 250-strong majority (now dubbed "Bolsheviks" by the press) held sessions in a conference hall, ironically the former Lenin museum. The minority ("Mensheviks") of 180 deputies continued to work in the Parliament building without a quorum. Each claimed to be the legitimate Parliament, although some members of both groups thought both were illegitimate. The majority quickly voted to remove Tkachenko, his deputy and all minority-held standing committee chairs. New ones from the majority were elected after factions had horse-traded posts. Ivan Plyushch, former parliamentary speaker from 1991 to 1994, was elected speaker and led negotiations with the minority.

Unsurprisingly, the executive displayed its willingness to work with the majority, and Kuchma signed their laws. The weak position of the minority ebbed further. Their negotiations for a compromise solution (such as the re-adoption of all the majority decisions in the proper building) went unheeded. Calls for mass demonstrations of support by leftists brought forth only a few hundred people. Some leftist deputies went on hunger strike and kept overnight vigils inside Parliament, while security forces were stationed outside.

As events evoked memories of Russia in October 1993, Kuchma pledged there would be no violence. The majority re-entered the Parliament building, backed by security forces, at 7am on 8 February and occupied the chamber and rostrum. Scuffles between majority and minority deputies followed, but the new speaker opened the session at the normal time. The minority refused to register for several days but participated in debates without voting. Gradually, the Supreme Council began working in line with the new circumstances.

Parliament re-united?

The spectacle of the Supreme Council splitting into two, sitting in different buildings and not recognising each other only discredited the Parliament further and strengthened the arguments of Kuchma and his supporters about the need for a referendum and changes to the Constitution. Had Tkachenko adhered to the procedures and stepped down, Parliament itself and the left within it would be in a stronger position vis-ŕ-vis the executive branch to argue against the referendum. The Parliament as a whole would have been better placed to co-ordinate a campaign and appeal to the Constitutional Court and international bodies about its potential dangers. The left, having peacefully stepped down from the leadership positions, would perhaps have had more leverage in negotiating the soon-to-be-instituted opposition prerogatives. In addition, the left's total defeat has left them in disarray and prone to internal splits. Several deputies have already defected to the majority.

Majority deputies have been swapping factions, and as a whole the majority has grown numerically. The main cohesive agent seems to be the referendum, which is holding together those deputies (mainly associated with the United Social Democratic Party and the Revival of the Regions party) who support it and seek a more advantageous position in the new revamped Parliament and those who want to avoid it. According to Yelashkevich, a non-aligned deputy, among the latter are some who only want to preserve their mandate and some who genuinely fear for the future constitutional order, democratic development and social stability in Ukraine (Den', 10.2.00). The fact that a majority of the "Bolsheviks" oppose the referendum has facilitated some rapprochement with members of the minority. One such initiative was a round table held at the end of February, which saw prominent pro-reform deputy Serhiy Holovaty and leader of the Socialist Party Oleksandr Moroz taking a common stand.

Groups of deputies have submitted appeals to the Constitutional Court to rule on the constitutionality of the referendum, while international bodies such as the Parliamentary Assembly for the Council of Europe expressed concern and asked Kuchma to wait for their ruling. Ignoring such pleas, Kuchma seems determined to press ahead with the referendum, although he did state his intention to abide by the decision of the Constitutional Court, which began examining the case on 29 February.

Difficult decisions

Although the parliamentary crisis was harmful to the status of the Supreme Council, some positive outcomes can be discerned, relating to the presence of a majority and leadership changes. The 2000 budget was finally passed, and relations with the government have been constructive. Parliament has not become rubber-stamp compliant in fear of the referendum just yet, with even speaker Plyushch voicing doubts about its constitutionality.

However, these positive signs are likely to be fragile. The heterogeneous interests of the majority suggest it will be difficult to enforce voting discipline in the longer-term, even with the new procedures. The referendum could be destabilising and undermine the Constitution. Despite his current stated intentions to the contrary, Kuchma could find himself swept along by events and compelled to dissolve Parliament. Fresh elections would further delay reforms and would be unlikely to produce a more pro-reform Parliament. At the same time, if the Constitution was changed, the increased insulation of the executive from legislative accountability could damage the prospects of democratic consolidation but increase the chance that reforms will be carried out.

Alternatively, if the referendum does not take place, the majority has little chance of survival and inter-branch relations could deteriorate again.

It seems that Ukraine is yet again faced with the "big questions" of post-Communist politics: How should power be divided between the branches of state? Economic transformation or democratic consolidation?

These decisions can be postponed again but only to the detriment of the Ukrainian state and people.

Sarah Whitmore, 9 March 2000