We all have repeatedly heard allegations from the opposition to the effect that the political reform has been conceived by Medvedchuk and Kuchma to refuse the people access to power through its best representatives, Our Ukraine. We have also heard that a fair reform can be implemented only by a leadership that enjoys broad popular support. Yet all this talk has proved fruitless, with the Constitutional process continuing and gaining more and more support from the leftist opposition. The latter, according to Socialist Valentyna Semeniuk, considers it better to take a stand than strike an attitude. Meanwhile, Our Ukraine obviously prefers the latter.
JOINING THE PROCESS
However, all this talk of the opposition has in a certain way affected the process of implementing the Constitutional reform. Talk of using the Constitution to seize power became deeply rooted in the minds of Our Ukraine jurists. The moment of truth has now come, when a year and a half after the beginning of the political reform Our Ukraine ventured to voice their view of what the Constitutional amendments should look like. A relevant bill has been presented by Mykola Katerynchuk.
Thus, what does Our Ukraine propose?
1) Our Ukraine has long disapproved of curtailing presidential powers. Yet they did not venture to follow in the footsteps of Georgia’s Mikhail Saakashvili, who has forced his docile parliament to pass Constitutional amendments that have significantly broadened his powers.
Thus, under the Our Ukraine reform bill the new president would lose many of his powers. Yet he would still keep something, namely, the right to appoint the Foreign Minister, Defense Minister, chairmen of local state administrations, and the prosecutor general. Notably, the latter would be appointed without the parliament’s approval (which is now done with the approval of Verkhovna Rada) and for an indefinite term (now only for five years).
One may, of course, chuckle up one’s sleeve at the fact that quite recently the opposition lashed out against the presidential reform bill, in particular because it envisioned a composite Cabinet of Ministers, formed partially by Verkhovna Rada and partially by the president. But things are much more serious than they seem. Under the bill, the next president would retain his grasp on a major set of election campaign resources. Could that be to ensure the best conditions for his bloc: votes of the military, administrative resource, and timely neutralization of too enterprising opponents? Or, conversely, could that be that Yushchenko followers want their president to concentrate in his own hands all these resources so that the evildoers would not use them? The latter seems more like it. But what if someone other than Yushchenko is elected? After all, as the experience of Natalia Vitrenko has shown, high standings in opinion polls do not always mean victory. What if, for example, Medvedchuk is elected president? Is Our Ukraine ready to grant him such powers?
2) The allegation that the new president needs these powers only to organize fair and democratic parliamentary elections in 2006 is confirmed by the fact that the president would lose these powers after the parliamentary elections. However, for some reason in the bill the period “after the elections” begins not on April 1, 2006, when the relevant amendments are automatically made to the Constitution, but on November 1, 2006, when these amendments become effective.
Thus, after the parliamentary elections the new president will retain control of the administrative resource. What for? Could that be not to overburden the newly elected deputies with the laborious task of appointing a new prosecutor general, and the government with appointing chairmen of local administrations? Or is it to give the deputies an additional stimulus to join the government coalition that would form around Our Ukraine?
Conceivably, a Constitutional majority could form in such a way, which would be able to return to the president the powers that he has been stripped of so unfairly. To this end, aside from the administrative resource all the possibilities to dissolve the current Verkhovna Rada could be used.
3) Under the Our Ukraine bill the president would receive the right to dissolve the parliament should the latter fail to begin its session within a month or form the government. There is nothing special about this clause, as Bill No.4105 vests the new president with the same powers (except that under Bill No.4105 the president can dissolve the parliament if it fails to form a stable majority). Yet there is a certain nuance to the Our Ukraine bill, under which the government would be headed by the leader of a party or bloc that has garnered the most votes in the previous election.
As a result, should the parliament (above all the current parliament) fail to understand the hints from the new prosecutor general, the president could submit the candidacy of a new prime minister from among the representatives of Our Ukraine. This creates good possibilities: either the parliament jawboned by the president forms the government from among representatives of the current opposition or the parliament is dissolved and early elections are held, with Our Ukraine controlling the prosecutor general and local state administrations. Incidentally, the same scenario could be employed should the people treat the responsible matter of electing a new parliament without understanding and elect all the wrong people again.
4) But what if nothing comes of it? What if the new president fails to dissolve the current Verkhovna Rada and the next parliament is again composed of those they consider the wrong people? What if the arguments of the new prosecutor general do not prove convincing enough for the deputies of the current majority to join Our Ukraine? Even for such a case the bill envisions a back door — a new impeachment procedure.
The bill has made the procedure simpler and more understandable, except that the number of deputies whose votes are needed to begin the impeachment procedure has been increased from 300 to 350. That is, to block the impeachment procedure far fewer votes would be needed — only 100. Coincidentally, the Our Ukraine faction has as many members now.
REVERSING THE REFORM
In conclusion, consider two closing remarks concerning the bill in question.
First, there is a minor (purely moral) problem with the reservations Our Ukraine had concerning the provisional clauses of Bill No. 4105. Recall the wrath of the opposition forces when Symonenko’s proposal to elect a provisional president for a year and a half was approved. This, of course, is undemocratic. But then, in which case did Our Ukraine fool their colleagues and the public at large: when they criticized Symonenko’s clause or when they devised a scheme whereby the citizens would elect the president with one set of powers, who would then exercise different and significantly curtailed powers during the three-fifths of his term?
Incidentally, in my view this could be used as a quite convincing argument in favor of reversing the reform in the future. It would be enough to stage several rallies with the demands like “Return Us Our President.”
Secondly, Our Ukraine representative Mykola Katerynchuk expressed his intent to submit his bill to Ukraine’s Constitutional Court and the Venice Commission of the Council of Europe in order to have it adopted before the presidential elections.
Meanwhile, the major reservations of Our Ukraine (and, incidentally, those of PACE) concerning the political reform underway were that it is not the best time to implement the reform in the election year. Note that Bill No. 4105 was to be adopted during the current parliamentary session (in March, according to Yuliya Tymoshenko), that is, before the official presidential campaign. Meanwhile, the bill from Our Ukraine can be adopted only during the fall session. That is, until the very last moment neither the presidential contenders nor the voters will know who they are about to elect. Will PACE and OSCE raise objections in this case?
WHAT NEXT?
A logical question of what all this is needed for arises.
I am loath to believe that Our Ukraine has drafted this bill to seize power in the country. After all, thus far there have been no reasons to question Yushchenko’s democratic principles. Yet this bill obviously raises such doubts.
It is also unlikely that the goal of the Our Ukraine bill is to prevent vote rigging during the 2006 elections by the so-called “enemies of democracy” in the parliament. Yet some politicians will say precisely this. What else can they do? They must explain somehow the oddities mentioned above. Again, it sounds like a new slogan for the election campaign: the bearer of the people’s trust as the guardian of democracy.
I am not inclined to think that the Our Ukraine bill is a parody of the presidential reform bill either. Although, there are no doubts many among the jurists who would just for a laugh draft a bill “on how I would extend Kuchma’s powers.”
Well, no. Yet individual clauses of the bill (for example, 2006 as the date when the law takes effect, specifics of appointment of government members, a sizeable chapter on the local government) are obviously designed to please Oleksandr Moroz. Sooner than not, the aim of this odd document is rapprochement with the Socialists, who, as we know, have been offended by Our Ukraine’s persistent reluctance to recognize the need for a reform of the political system. It is quite probable that they want to lure Moroz to their side so as to create conditions for the disruption of the political reform. Yet whether this will work is anyone’s guess.
