Ten steps towards one another
Despite the MPs’ well-creased suits, their crowding in the corridors of courts and the Central Election Commission, despite the pre-paid marches, most Ukrainians tend to perceive the current political crisis as a storm in the officials’ teacup.
Despite the MPs’ well-creased suits, their crowding in the corridors of courts and the Central Election Commission, despite the pre-paid marches and demonstrations around the Presidential Secretariat and Parliament, most Ukrainians tend to perceive the current political crisis as a storm in the officials’ teacup. The fierce fight for power is aggravated with the post-Soviet syndrome that most of the political leaders involved suffer from: “the winner takes all”. Yuliya Tymoshenko has never concealed her penchant for concentrated power, which accounts for her unswerving opposition to the constitutional reform. Viktor Yushchenko dreams of a Constitution that would restore the maximum scope of presidential authority, empowering him to appoint and dismiss every man of consequence in the state. Viktor Yanukovych, by recruiting a constitutional majority in the Rada, has been erecting a pyramid of his own power for eight months in the hope that it will one day provide him with leverage equal to that of [former President] Kuchma’s.
Every time these processes intensify, I recall my conversation with [ex-Prime Minister] Pavlo Lazarenko:
— What are you after, Petro Ivanovych? — I asked him in the winter of 1997.
— Staying in the Premier’s office for eight years.
— That is impossible.
— For many reasons; one of them being that you won’t share anything with anyone.
— In order to share, I should first have everything to myself.
In fact, today nobody is going to share anything, either, which is one of the main reasons for Ukraine’s constitutional, political and psychological crisis. The leaders of all the various political forces have been working for a few years now to concentrate all kinds of resources (financial, administrative, electoral, etc) under their control. Moreover, they invest in people – judges, lawyers, journalists, political analysts and consultants, sociologists, spin doctors – as one would invest in real estate. As a result, politicians have entrapped themselves: there are practically no individuals or legal entities in the country who could arbitrate between the opposing parties and win the trust of both. Hence a lot of skepticism about the forthcoming Constitutional Court judgement. No instrument of authority, unless it works in the “papal conclave” regime, can be totally objective or unprejudiced. No court has a reputation for impartiality and trustworthiness.
On the one hand, the country needs people and organizations capable of finding legal and moral solutions to regularly erupting crises. On the other, the political elite, unskilled in finding compromises within the frameworks of legislation, heavily depends on sponsors and legal advisers. Of course, one could wait for the CC ruling and hope all the concerned parties will abide by it: we are a civilized nation, after all; we should not repeat Russia’s mistakes of 1993. However, some people could view the CC ruling only as an indicator of the winning party’s greater clout…
It is not up to courts to settle the current crisis and satisfy our leading politicians’ ambitions. A new political generation could do the job, but it will take years for this generation to come to the fore and grow into an influential movement. We have to live those years with the leaders available today, harbouring no illusions about them but counting on their self-preservation instinct. They might survive if they achieve a political compromise. It should be a broad, stable and conscious compromise, whereby there would be neither absolute winners nor total losers but, instead, everyone gaining a little something. However, that is some way off. Meanwhile the three players – President, Prime Minister and opposition leader – are keeping to a hard line that could well bring them to a dead end, together with the rest of the country.
Naturally, we would prefer the constitutional grounds for the President’s decision to dissolve Parliament to be more solid. Alas! Yet Yushchenko is essentially right: not only does the formation of a 300-man strong coalition destroy the “checks-and-balances” system but it also distorts the election results and creates preconditions for the Premier’s usurping an almost unlimited power. This would be detrimental to both the President and the nation at large. Until the Constitutional Court rules otherwise, the presidential decree is in effect, and it should be enforced. Failure to comply with it is punishable under law, including criminal law as Yushchenko emphasized in his address to the nation. The Supreme Rada, Cabinet of Ministers or other local governments, while passing collective resolutions on defying the decree, could take this scornfully—but as soon as it became endorsed with the NSDC decision, the responsibility become personal… The presidential decree enacting the NSDC decision allocates responsibilities to particular state officials, who are in charge of funding the election campaign with reserves, as well as procuring what the CEC needs. Names and timeframes are specific: Yanukovych, Azarov, Kopylov, Davydovych, Kharchenko; by 7 April, by 10 April, by 11 April, etc. For example, if prime Minister Yanukovych, First Vice Prime Minister Azarov, State Treasury Head Kharchenko, First Deputy Minister of Finance Kopylov, CEC Chair Davydovych fail to meet the clear deadlines set in the decree, Prosecutor General Medvedko must send his people to them… Is the President prepared for this scenario? Can he rely on Medvedko to do everything right? If yes, how will the coalition respond to the information on penalties against their fellow party members? What will the consequences be?
The latter circumstance lays special responsibility upon the prime minister of Ukraine. Yanukovych rejects the elections flatly. Proposing a “zero option”, he is not playing fairly, as the adoption of the “imperative mandate” law by the Rada (a concession he is ready to make) will not prevent the formation of a constitutional majority. The law will prohibit MPs from switching factions but it will not prescribe how they should vote. According to the Constitution, MPs are free to vote “at will”.
Viktor Yanukovych, who informs society of internal developments in the Constitutional Court ahead of the CC press service (Sic!), must be sure the CC will rule in his favour. Yet one should bear in mind that, say, 15 minutes before the CC verdict is announced, the President could sign another decree on disbanding the Supreme Rada, amended so as to incorporate the CC recommendations. A bit later the Constitutional Court could become non-operational again – some justices could decide to quit, just getting out of the harm’s way… One should also remember about the invisible internal opposition in the Party of Regions headed by Rinat Akhmetov, who said he would not support the concentration of the state power into the hands of one leader, be it Yanukovych, Yushchenko or Tymoshenko.
Persistently refusing to comply with the presidential decree, the Prime Minister is in violation of the law, meanwhile exacerbating problems within his own party and practically assuming responsibility for the mounting tensions that could spiral out of control. Today Viktor Yanukovych seems to be a tool used dexterously by the Parliament Speaker, and this belittles him in the public eye.
Yuliya Tymoshenko’s prospects are not as bright as one might think, either. Even if the early elections do take place on 27 May, their legitimacy could easily be challenged at a later stage. The election law allots 90 days for election procedures. According to the Constitution, extraordinary elections should be prepared and held within a shorter term of 60 days. Should all branches of power interact productively to assist the CEC (which is doubtful), the latter will have to allow for numerous minor irregularities and cases of non-compliance anyway.
On 3 April political parties and bloc were to nominate their candidates for district election commissions. So far only two blocs – YTB and OU – have done it. Parties will have to hold extraordinary assemblies in order to form election blocs, but their legal correctness and compliance with the party charters cannot be guaranteed. Election experts argue there will be no time to review and update the lists of voters. District commissions will not be able to arrange for voting at home for the disabled; nor to print absentee ballots. The elections could turn from a competition amongst parties and platforms into a contest of skills to use administrative pressure and ballot-rigging techniques, to “count” votes and fight in courts. Who can guarantee that Yuliya Tymoshenko will not end up with 6% instead of what her bloc really gets? Who can guarantee that she would win her case in court? Even if the elections are held throughout the country, their results could be deemed illegitimate, which means that the international community might hesitate to recognize them as well. The least lucky players could appeal the election results in courts, both Ukrainian and European, right after the elections or even some time later. Two quite recent examples of such deferred actions involved the dismissal of the chief judge of the Pechersk District Court by the President and of the incumbent CEC – by the Supreme Rada: in both cases earlier decisions, made in 2005 and 2004, respectively, were repealed. At the end of the day, the political elite and society at large would blame Yuliya Tymoshenko for poorly prepared, non-transparent elections.
Furthermore, Yuliya Tymoshenko should be worried about the manner in which negotiations on crisis management are being conducted. Yushchenko meets with Yanukovych but Tymoshenko is not invited. Why is it so? Why doesn’t the opposition leader take part in those talks as an equal player alongside the Constitution guarantor and the ruling coalition head? It is fundamentally wrong and ethically flawed. Suggestions of a new “orange” coalition in Parliament are mere declarations, and not even made by the President. Most probably, Yuliya Tymoshenko expects Viktor Yushchenko to keep his promise this time and the “orange” coalition to elect her prime minister. These are her plans, but what are the President’s plans? He wants to have the coalition re-formatted, yet his idea of the ideal coalition might differ from Tymoshenko’s.
In view of the above, one could presume that neither the Constitutional Court judgement (especially given the conditions under which it operates), nor the 27 May elections will terminate the permanent power struggle, nor yet secure the kind of stability that ensues from intensive reforms instead of punitive sanctions.
A palliative solution, of sorts, would be to put off the early elections. Speaking at the NSDC session, Yushchenko made it clear that the date of the elections was negotiable. His message seems to have gone unheeded. We have not found a plain, non-controversial legal provision for postponing the election, although in the times of crisis the search for a compromise could go beyond formal articles and clauses. The 1996 Constitution, the 2004 Constitution and the 2004 Supreme Court decision were all trade-offs made by persons whom the society vested with power – Parliament, president and government. The rescheduling would allow them to optimize the shortened procedures for early elections and to ensure transparency.
Well-prepared and transparent early elections could “inoculate politicians against treachery”, as somebody in the Presidential Secretariat is quoted to have said. It is important because new MPs, aware of the threat of losing their seats in the Rada prematurely, would stop changing factions. The problem of loyalty would be addressed, albeit formally. However, early elections would hardly be conducive to ensuring the devotion of political forces to their voters. Neither would they contribute to safeguarding society in the fight for absolute power during the process of adopting a new Constitution.
The elections will hardly bring more intellectuals to the Rada: according to information from HQs, the party lists will not be revised dramatically. One should not expect new slogans and clearer programmes, either…
There are always two ways out of a crisis: one – by overcoming and developing, and the other – by exacerbating and degrading. The top officials should tell the nation which way they have chosen for it. The answer might be found only in trilateral negotiations resulting in a trilateral distribution of responsibility for the direction and strategy of the country’s development in the next decade, coupled with a clear and open agreement about mutual concessions and portfolio allocations. The compromise could be shaped as a triangle: President Yushchenko – Prime Minister Yanukovych – and Speaker Tymoshenko. It is a utopia, of course. Politically cognizant ZN readers understand fairly well that deep inter-personal conflicts between these three politicians, their mutual mistrust and contempt, make their ambitions incompatible and any agreement almost out of the question. Yet why should the country suffer from this war of ambitions?
Ukraine is stuck because parts of its political elite, unlike their Polish, Estonian, Lithuanian, Hungarian and other Central and Eastern European peers, have failed to agree about aims and objectives, failed to find a common ground. In those countries, the leftists, rightists and centrists united around one goal – building a market economy with the possibility of EU and NATO membership, creating democratic elections and a free press. They focused their effort on what keeps them together rather than on what divides them.
We in this country know the difference between the Communists and the three major political forces (notwithstanding commercial undertones of relations within the ruling coalition). We can still see the difference in opinions between the three major political forces and some Socialists. Yet there is not much difference in mindsets of Yanukovych, Tymoshenko and Yushchenko, and most of the MPs they brought to Parliament. We do not mean their electoral slogans. What we mean is their actual, fairly universal, views on achieving their goals. The core of these three parliamentary factions is made up of wealthy people whose main priority is business. Spokespersons for the factions and those who add ideological flavour are, for the most part, not very affluent. All three factions have similar approaches to property and courts. Their relations with the media are different, mostly due to their varying ability (rather than willingness) to put the media under control. The list of similarities is very long. So let us think about the benefits for the nation in the event of a truce amongst the three forces and their commanders.
First, the country would enjoy a certain period of stability conducive to the implementation of much needed reforms. Sharing responsibility for unpopular measures would facilitate the reforms. You will remember how a year ago, in the height of a coalition-forming debate, the orange team’s Action Programme miraculously coincided with the Action Programme drafted by “Our Ukraine” and the Party of Regions. They did not ally last summer but they were very close to it.
Second, the nation would get an explicit idea of its development strategy and its home and foreign policy involved in moving towards the EU, European values and security frameworks.
Third, the world would get a clear message about who to do business with and what business to do in Ukraine.
Fourth, land would become a transparent commodity, thus putting an end to grey misappropriation schemes (to Moroz and Hubsky’s great disappointment).
Fifth, the unprincipled fight for power would stop, since the authorities would pursue a coordinated course expediting the employers’ interests. Perhaps, the left or liberals will come to power some day. However, as matters stand, three thirds of the Rada are owners of large businesses, and the country’s development policy is dependent on their interests. On the other hand, sustainable development of their business is dependent on the society’s satisfaction with this policy.
Sixth, if three leaders share the power, no particular region of Ukraine would feel underrepresented and vulnerable.
Seventh, the Ukrainian authorities would not be aligned with one specific region. They would expand their geographic base, attaching greater importance to national priorities and the ruling team’s professionalism. This would also enhance the human resources of public administration.
Eighth, the domination of closed clans in certain sectors of the economy would cease to exist. Mutual control of mixed management in those sectors would reduce corruption opportunities and decrease the error rate. This applies not only to the financial, energy and agricultural sectors, but also to uniformed ministries. Multiparty control of them is much more valuable for society than single-party control. With a coordinated action programme in place, the multiple party allegiances of key executives should not bring disorder into the implementation of development strategies adopted by the three political forces. On the contrary, it should proportionally satisfy the three leading politicians’ ambitions for accessing the levers of power. Yuliya Tymoshenko should receive a fair compensation (in terms of key positions for her team members), as the Speaker has fewer powers than the President and Prime Minister.
Ninth, laws earlier adopted by the Supreme Rada to the detriment of the opposition and the president should be brought in accord with the Constitution. In particular, the law on the Cabinet of Ministers should be amended to exclude provisions infringing on presidential authority.
And finally, tenth, the constitutional majority formed by these three forces should amend the Constitution, ridding it of indefiniteness and compromise. The Constitution should give a clear answer to what kind of republic Ukraine will be: parliamentarian or presidential. Two alternative versions of the Constitution could be put up for the referendum, but both should be clean and clear. As we know now, the palliative nature of the Constitution could cause a serious crisis.
A road to understanding, let alone implementing, this roughly outlined solution for the deadlock will be long and difficult. We have driven ourselves into a dead end, and are likely to do so over and over again. If ideas voiced in this article are agreeable with the leading political players, they should answer the following question: do we really need an election before the new Constitution is adopted?
By Yulia Mostovaya,
This article was monitored by the Action Ukraine Monitoring Service for the Action Ukraine Report (AUR), Morgan Williams, SigmaBleyzer, Editor.