Is Ukraine heading towards authoritarianism or, still worse, dictatorship? Formally at least, the road is wide open. The Constitutional Court ruling of October 1, 2010, was a clear demonstration of the current ruling team’s style and methods. As a matter of fact, this is nothing new for Ukraine. This has been the talk of the town since 2004. Now that masks have been ripped off and all the evidence has been presented, one can predict the political system’s further development.
Summing up the complaints about this Constitutional Court (CC) verdict, one can conclude that the new judges are opportunistic and unprofessional. Many of them are not experts in constitutional law, and almost all of them come from the Donbas region. But the point is in the essence of the ruling, not in where the judges hail from. The first and foremost this decision runs counter to the basic principle of lex retro non agit (the law does not operate retroactively). The government says that this principle is valid only partially and selectively — only for the term of office for the Verkhovna Rada and the president. Little wonder, the Verkhovna Rada does not want to limit its term because, otherwise, it would have to be reelected as early as March 2011. At present it stands a good chance to have its term in office extended until 2012 or, still better, 2015. It is now at the president’s mercy, though.
Yet, as far as the range of powers is concerned, the law has clearly taken on a retroactive effect. An automatic return of the old powers questions the legitimacy of all governmental actions and all the laws in the period of December 8, 2004, to October 1, 2010, including those of the current government. In formal terms, any laws passed during that time can be rejected as unconstitutional.
In addition to an apparent contradiction between the terms and the number of governmental bodies’ powers, we have one more “innovation” relating to the CC. Under the Constitution of both 1996, and after the 2004 amendments, a court has no right to be the subject of legislative initiative. Meanwhile, the CC did this very thing — it not only pronounced Law No. 2222 as unconstitutional but also brought back the old Fundamental Law. It was not authorized to do so. The judges overstepped their powers, but they were expected to hand down exactly this verdict. It was intended to bring back Kuchma’s constitution “automatically” in order to avoid any consultations with parliament. So, in an attempt to please the government, the CC breached the law, but Party of Regions lawyers and the minister of justice refuse to admit this.
The opportunistic nature of this court ruling is also obvious. In 2008, at Viktor Yushchenko’s request, the previous CC judges made a decision diametrically opposed to the present one. The court ruled then that Law No. 2222 did not exist as such but was part of the Constitution and, hence, could not be excluded from it by sheer force, for this requires a full-fledged procedure of constitutional changes. This is why experts and politicians wondered what the government would do after the expected decision that Law No. 2222 had been passed by violating norms and procedures. But very few could foresee that things would go so fast and strong.
They must have forgotten about the notorious “Donetsk style” of ruling. By all accounts, they pinned too much hope on a show of reverence for the West and adherence to at least some norms of the legislative process.
Even for this reason, we can say that the government won a Pyrrhic victory on October 1. Yanukovych received as a gift a Trojan horse full of glaring juridical blunders, which may serve later as an excuse for repealing the decision made on October 1, 2010. Naturally, this will not happen in the nearest future. But it is bound to happen in any of the coming years.
Incidentally, the president is already being told that he has the right to run for a third term in office because he was elected under the “2004 Constitution” and now the Constitution has been amended and he can be elected twice again. We are back to square one, i.e. to Kuchma’s old ideas. But, to do so, one must allow for the following “trivial detail”: Yanukovych will have to remain content with the old range of duties until 2015. Only from 2015 onwards can he be considered as somebody who is in office under a new Constitution and is allowed to run for two terms. But this is exactly what the government is not going to do. Otherwise, what’s the use of presenting this lavish gift to Mr. Yanukovych?
WHAT IS TO BE DONE WITH THE “GIFT”?
In reality, the 1996 Constitution is not the most authoritarian one even in the CIS. To be more exact, it is even quite democratic for the region. In Belarus, Russia, Georgia, and Azerbaijan, to say nothing of the Central Asian republics, the presidents wield even greater powers. Even if their constitutions do set out some forms of accountability of the head of state or governmental officials, those countries’ autocrats flout these norms or have turned them into a sheer formality. What matters in the case of Ukraine is the very fact of returning to the past, from a more progressive to a more archaic system, from a European to a post-Soviet (any name will do) model. From now on, Ukraine finds itself, even in formal terms, among the states whose legislative realities the educated West considers “underdeveloped.” Our case is even more bizarre: we have witnessed a deliberate constitutional regress, which tarnishes Ukraine’s reputation in the eyes of the West even more. This country is increasingly similar to its CIS neighbors. Now that we have restored the president’s omnipotence, all we have to do is enter the sphere of Russian domination, the Customs Union, the Collective Security Treaty Organization, and a single post-Soviet mental space.
If somebody is skillfully manipulating Yanukovych, pandering to his psychological desire to fully avenge the 2004 debacle, this may result in a situation when Europe and the US will stop dealing with Ukraine’s head of state, as was the case with Kuchma at the end of his rule and still is with Lukashenko. The question whether Yanukovych himself really needs this turn of events can still be answered in more than one way. Undoubtedly, having shouldered the whole burden of power in the country, he has made a crucial move. The question is how he will exercise these powers.
Now that Yanukovych has assumed all the power, he will be unable to hide behind a “bad” parliament or premier. Yes, he can, as Kuchma could, dismiss officials and even put them on show trials, but it is now clear to all who is responsible “for everything.” So the number of those who are disappointed with the president personally will rise. However, there may be short-term fluctuations — when Yanukovych makes a crowd-pleasing move, for example, arrests an oligarch, dismisses (or defends) a certain official, kicks out an erring minister, the number of the head of state’s followers will be on the rise. But as soon as people turn off the TV and go to a store or the Tax Inspection, the harsh reality will bring back the frustration with the president.
ONE ON ONE WITH THE “VERTICAL”
The president should display toughness to boost his image and realize himself as head of state. Yet there are objects and individuals at whom he must direct his actions. We can so far see a one-sided and exclusive orientation towards the mentality and interests of the Party of Regions’ basic electorate, which is manifested only too well in the activity and rhetoric of a number of politicians and officials, beginning, naturally, with Dmytro Tabachnyk. At the same time, far more unpleasant associations are being called up by the actions of the SBU chief, who is openly proud of his ties with the FSB and the Belarusian KGB. This proves that the Russian scenario is being copied in the minutest detail. Putin’s style of ruling is very close to Yanukovych, not only from the viewpoint of effectiveness — it is close to him mentally. But, given the lack of conditions identical to those in Russia, this copying looks not only ill-considered and unnatural but also ludicrous at times. The actions of odious bureaucrats are further dividing the people of Ukraine and making a split of the country a real threat — especially if we take into account the rapidity with which they are trying to build Putin’s model here. It is difficult to build in one or two years what took Russia ten and Belarus 15 years to build. But it is possible if one counts on the complete passivity of all societal strata, relies on the uniformed services, and tries to exploit the undying myths about “a good tsar and bad boyars.”
The overall picture is that the “air of freedom” which Ukraine has been breathing for the past five years, as well as its whole previous experience, have been deleted by the fast-track construction of a “vertical system of government” which put an end to political reform. Putin’s well-known term, “vertical,” is really warming the hearts of the party in power. As Russia’s bureaucratic machine relies on the uniformed services, their role is expected to increase still more. Yet our leadership does not want to see that the current regime in Russia is beginning to erode. Yes, in Russia this was caused by the duumvirate, which saved the country from slipping into Putin’s unlimited dictatorship. But Yanukovych is also sure to face this problem. And it does not matter what the erosion of the regime will be called a “problem for the successor” or just a “systemic crisis.” In any case, he will not manage to be an autocrat for a long time and, what is more, without strife, for the simple reason that the laws of interspecies struggle relentlessly prove that, after swallowing its rivals, any political force will begin devouring itself. And the more autocratic the system, the crueler and cynical the internecine fighting is. When the resistance of clans is for all to see (which can happen at any moment), this will start a countdown of political wars and uncompromising struggle. This struggle will inevitably affect foreign-policy matters as well as the range of powers of the head of state, who will manage or encourage this struggle.
Yanukovych will fail to be always above the brawl. It is clear even now which of the business groups enjoy the president’s favor. If you rely on this group all the time, why do you need more powers?
But if Yanukovych is boosting his powers for a future struggle to wrest control from the oligarchs, in this case his actions may be considered useful. But this raises a different question, one that is inevitable in any authoritarian system, the question of the head of state’s personal features and goals. If a ruler dislikes somebody or something, there is no place for this individual or entity in an authoritarian state. In our case, nothing suggests that the president’s attitude to, say, social problems, may change. Likewise, there are no guarantees that Ukrainian oligarchs will not be giving way, on a massive scale, to their Russian counterparts. Relying on the Russians against “our side” is not the best way to prove that you are independent in decision-making, even if you admit that the oligarchs must have their powers curtailed.
AT THE CROSSROADS
There are several options for Yanukovych now. He may leave all as it is. But he will hardly do so because this is not the reason why the political reform was repealed. Yanukovych may try to balance the oligarchs. This would be perhaps a good, albeit unfulfillable, strategy in a country where a dozen of oligarchic families hold sway. If these people choose to offer resistance, the president and the state should not expect anything good.
But the now discernible alternative to oligarchic rule does not look rosy, either. It is a bureaucratic republic where the official and the taxman — the king’s people — are the key persons. This kind of state is being built before our very eyes. Yanukovych seems to be testing different models for the future political system.
It is no use speaking today about any “normal” scenarios of development, when there is a civil society, a rational and strong opposition, strong small and medium businesses, and real freedom of the media. Bankova St. [the president’s residence. – Ed.] is not a proper place to turn to for this. As a result, we are destined to have either a realm of bureaucracy, one dominated by one oligarchic clan, or a never-ending struggle between the groups. And under all these scenarios, the president has to play a somewhat conservative role. “Lining all up” is only a fraction of the job. For it takes only powers to be able to carry out real modernization, defend the country’s economic independence, unite the east and the west, and support the middle class. Even a desire is not enough here — one must be clearly aware of the scope of the work to be done, see the coveted goal, and, what is more, work very consistently and self-denyingly.
Otherwise, October 1, 2020, will be the line that may be called “the end of the dismantling of the Ukrainian democracy” and nothing will be ever built on its ruins. This country lacks a unifying ideology, resources for full-fledged propaganda, or any improvement of life. And it is mindless to build a Russian or any other model here without these factors. But some may like the very process of this.
All one can surely predict, irrespective of the duration of the current president’s rule, is that there will be something. Unfortunately, this will not be something positive — even now society can see the first winds of protest, which will grow with every passing year. The president should not expect a calm reign, followed by the transfer of power to his successor — just because he hastened to show his true intentions. Now that the rules of the game have been defined, a real struggle for power is in the offing.
TO THE POINT
On October 7 the Verkhovna Rada passed the Law “On the Cabinet of Ministers,” which essentially boosted the president’s powers. In particular, the law introduces changes to the procedure for appointing and dismissing the uniformed services’ top executives. For instance, the prosecutor-general is to be appointed with the consent of the parliament and dismissed from office by the president (earlier, this could be done by the president with the consent of parliament). The Security Service of Ukraine (SBU) is to be subordinated to the president (in the previous version, to the president with parliament exercising control over it). The SBU chairperson is to be appointed and dismissed by the president (earlier, appointed by parliament on the president’s request). One of the clauses also excludes parliament’s control over the Security Service of Ukraine. The new law only sets out that the SBU head annually reports to the Verkhovna Rada on its work. Furthermore, the Cabinet is being stripped of the power to appoint regional administration heads. From now on, the president will appoint them on his own.
The opposition says that the new law “On the Cabinet of Ministers” essentially narrows the powers of parliament even in comparison with the situation from before the political reform. Particularly, Our Ukraine’s Roman Zvarych said: “I am congratulating you on the transformation of this room into a graveyard for the Ukrainian parliament. It is no use to make laws because parliament as such has in fact ceased to exist. You have buried the Ukrainian parliament, and you have turned this room into a cemetery for Ukrainian democracy!”
