Central Europe Review - Constitutional Change in Ukraine

This autumn was always going to be a tough one for the Ukrainian parliament. Deputies are currently faced with finding a two-thirds majority to pass a bill in final reading which will change the Constitution substantially in favour of the President. The representatives will thus be voting away their own prerogatives and, arguably, the potential for the parliament to become a truly independent legislative branch. The recent reticence of the parliamentary leadership to announce when the bill will come to the floor and the public admission that the parliamentary majority is experiencing difficulties mean that constitutional and political uncertainty will be key features of the coming season.

President Kuchma was re-elected in November 1999 after an election campaign in which the cranking-up of the state finally ensured his victory. The renewed popular mandate gave Kuchma's team the opportunity to consolidate their regime on a formal level by changing the Constitution to a more presidential system. The 1996 Constitution defines a president-parliamentary system as the formally balanced, but ultimately unclarified, distribution of powers between the two branches. In practice, President Kuchma retained the upper hand and inter-branch confrontation intensified after the passage of the Constitution, especially during the presidential election campaign.

The current bill to change the Constitution was passed by 251 votes in first reading on 13 July - the last voting day of the parliamentary session. According to the Constitution, the bill must now be passed by a constitutional majority (300 votes) during this session.

Formally, the constitutional changes are based on the implementation of the "referendum on the people's initiative" which took place on 16 April this year. The dubious legality of the referendum and the methods of its execution have been widely documented (see CER's Ukrainian News Reviews from March and April). This administrative fait accompli was eerily reminiscent of a Soviet-era election. The veneer of popular legitimacy armed the President's team with the necessary levers to push Parliament to reduce its own powers.

The people's will

The four referendum questions were so vaguely worded as to be open to various interpretations of the "people's will." The main points of the President's bill incorporated only three questions, leaving the issue of the implementation of bicameralism and a corresponding new electoral system to a special commission to elaborate. In sum, these changes add up to a means of subordinating the parliament to the will of the executive (read: the presidential "team") and could constitute a significant threat to the establishment of limited government in Ukraine.

Firstly, the President will gain the right to dissolve Parliament if it fails to form a working majority within a month or if it fails to pass the budget submitted by the cabinet within three months. The presidential team and its supporters argue that this amendment will end the parliament's ability to stall long-overdue economic reforms and facilitate a more efficient, co-operative and responsible relationship between the two branches of state power. Indeed, the formation of Ukraine's first parliamentary majority in January (largely as a response to pressure from the President) has brought greater predictability and improved relations with the executive.

A pocket parliament

Judicially, however, the provision is problematic, as the bill fails to define the concept of a working majority or specify how it should be formed. Furthermore, the procedures for adopting the budget in the event that Parliament has been dissolved have not been elaborated and are to be left up to ordinary legislation. Granting a president the right to dissolve the parliament in two relatively ill-defined contexts would de facto give that president the legal pretext to dissolve it at will, and this prerogative could then be used as a stepping stone towards authoritarian rule. At best, it represents a shift towards a more presidential form of rule, which, if it were to clarify the separation of powers and create incentives for inter-branch co-operation, could be viewed positively.

However, many politicians and commentators from across the political spectrum are deeply sceptical of the motives for this constitutional innovation. It looks suspiciously like an attempt to create a "pocket" parliament.

Secondly, the bill proposes to amend Article 80 of the Constitution, removing deputies' immunity from detention or arrest without the permission of the parliament. The activities of several deputies, most infamously former Prime Minister Lazarenko, currently awaiting trial in the US for money laundering, fuelled popular support for this question. Some deputies themselves have long requested the removal or tempering of immunity, claiming those who do not engage in criminal activities have nothing to fear. It is a point with far-reaching resonance, but others fear that without immunity it would be very easy to frame ceratin "undesirable" deputies in order to remove them from the political game. Opposition deputies are advocating removal of immunity for all state officials, including the President.

Political controversies aside, the bill also contained a curious legal error which the press had been pointing to for some time before the Constitutional Court mentioned it when ruling the bill constitutional: if the Constitution were amended according to the bill's wording, deputies would, in fact, be absolutely immune from prosecution.

Thirdly, the number of parliamentary deputies will be reduced from 450 to 300. This is also a populist measure, playing on perceptions of deputies as overpaid, over-privileged and under-worked, perceptions that have been constantly reinforced by the President and the media. 300 deputies would be cheaper, it is argued, and they would have to work harder.

However, this measure is questionable for a number of reasons. First, the move would lower the proportion of deputies to constituents below European norms, potentially further weakening the representative link. Second, given the enormous legislative workload of parliaments in transitional regimes, there are arguments to suggest that a reduction in the number of deputies would not improve the quality or quantity of legislative output. Instead, improving the proportion of truly full-time deputies would seem to be the more appropriate task, although a more difficult.

Furthermore, the reduction entails changes to the electoral system, and logically this question seems inseparable from the fourth referendum question: the introduction of a bicameral parliament. Nowhere in the referendum question, the bill or elsewhere, has it been revealed how this reduction would be implemented in practice with regard to the actual size of the two chambers.

The question of bicameralism was always the most controversial of the referendum questions and has remained the most elusive. The question, while referring to a second chamber representing the regions and the corresponding changes in electoral legislation, was not accompanied by any serious attempt to engage the population in what this actually would mean. It remained a hazy notion which was then excluded from the President's bill. Instead a special commission was set up by the President to elaborate on the form of the new parliament and electoral system.

Its conclusions are not expected before the end of the year, although preliminary reports suggest the commission is likely to propose a fully majoritarity electoral system, which would further squeeze the role of political parties in Ukrainian society. Meanwhile, the upper chamber is likely to be at least partially appointed by the President, who currently appoints the heads of regional executives). Aside from concerns on the right of the political spectrum that bicameralism could represent a threat to the territorial integrity of the Ukrainian state, the political independence of such a second chamber would also be questionable.

Taken together with the three questions included in the President's bill scheduled for second reading during this session, and the little that is known about the precise form the bicameral parliament will take, the proposed changes to the Constitution diminish the position of the legislative branch in the balance of powers and, consequently, its ability to act as a check on the executive.

"Implementation"

The exclusion of the bicameral issue from the bill on account of its alleged complexity seems, in part, to be a recognition of the potential difficulties in getting the results of the referendum passed into law. The parliamentary majority that was formed at the start of the year in the wake of referendum and dissolution threats is a heterogeneous mix of ten factions (parliamentary caucuses) and does not have a constitutional majority. It was numbered at around 270 deputies, but only 251 of them voted for the bill in the first reading.

Over the last couple of weeks, the confidence that the necessary 300 votes would be found, exhibited by the majority's leading figures and the parliamentary leadership, has started to crack. On 14 September, Oleksandr Volkov, the unofficial leader of the majority and close adviser to the President, announced that the survival of the majority itself was in question.

The durability of the majority has been under scrutiny since its inception. It comprises pro-presidential and pro-government/pro-reform parts, and as a result, tensions have been most evident over the adoption of the government's programme and on energy questions. The majority did not form the government and one of the enduring tensions has been over the issue of personnel changes.

The most pertinent example is Deputy Prime Minister for the energy sector Yulia Tymoshenko. The pro-presidential factions (and especially Volkov's faction) want her removed. Some press reports suggest that her plans to reform the energy sector threaten their financial interests.

However, Tymoshenko's parliamentary faction Fatherland (31 deputies) and possibly their ally faction of 21 deputies, would leave the majority if this happened. Their support for the government is directly tied to Tymoshenko's position, and the faction probably received some assurances from the presidential administration in exchange for their support of the President's constitutional bill in the first reading. Other factions in the pro-government camp are primarily supporting Prime Minister Yushchenko, whose failure to obtain the resumption of the IMF's EFF suspended loan tranches and unflagging backing of Tymoshenko have earned him presidential criticism. So his future is also far from secure.

On the constitutional issue, the pro-presidential factions (around 150 deputies) have been acting as a kind of presidential fifth column within Parliament. Unfailingly supportive of the President's line, they support reducing the prerogatives of Parliament to shore up Kuchma's regime; in the revamped Parliament, they expect their prime place to be assured. The pro-government factions (about 110 deputies) have offered only qualified support of the changes and appear to be playing for time. The majority of these deputies voted for the bill in July, but this was, they argued, for the sake of stability and the continuation of the peaceful democratic process that would allow the bill to be improved before the second constitutional reading.

A small but notable number of these deputies voted against the bill as legally flawed and as an attack on Ukraine's democratic, European path. The opposition factions remained unambiguously against the changes as a serious threat to parliamentary development. These include the Communists (115 deputies) and the centrist Sobornist group.

The majority has to find an additional 49 votes for the bill. This was always going to be a difficult task. Ten or so could probably be found from among the non-aligned deputies. Convincing the 20 majority rebels is likely to be extremely difficult, considering they didn't bow to persuasion the last time. Poaching deputies from the left opposition seems to be the only remaining option. Simply buying individual deputies is unlikely to work (at least on a large enough scale), because those who are "for sale" probably joined the majority months ago. This leaves the possibility of a deal with the Communist faction, perhaps in exchange for a return of some of the leadership posts they lost when the majority was formed. Although for the President this is scarcely an attractive option.

To compound difficulties for the President's bill, the integrity of the majority itself is increasingly under question. Last week, after two parliamentary resolutions were passed by an alliance of pro-government and opposition factions, Volkov announced that the pro-government factions were only opportunistic members of the majority (Zerkalo Nedeli, 16 September 2000). However, it seems probable that if the government remains intact, these votes can be counted on for the constitutional bill.

So, the announcement is a curious one. Could it be a pretext for future dissolution of Parliament on the grounds that in the referendum the people unambiguously expressed their desire for a working majority in Parliament and that it has failed to implement the constitutional changes on the basis of the referendum? Possibly. The President has to keep his options open, after all.

Sarah Whitmore, 25 September 2000

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