Volume 10 Number 4

Fall 2001

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Ukraine - Most of the celebrations for the fifth anniversary of the adoption of the Constitution, on June 28, were muted because of both the ongoing Gongadze affair and the failure to meet the five-year deadline originally set in 1996 for the all-important project of legal reform. Among the fifteen "Transitional Provisions" attached to the 1996 Constitution, number 13 had declared that "the current procedure for arrest, holding in custody, and detention of persons suspected of committing a crime, and also for the examination and search of a dwelling place or other possessions of a person is preserved for five years after this Constitution comes into force." In other words, the draconian post-Soviet practices were retained, but only until June 2001. Even more fundamentally, provision 12 promised that the whole post-Soviet structure of justice would survive "for no more than five years" (that is, 1996-2001) "until the formation in Ukraine of a [new] system of courts of general jurisdiction."

A total legal meltdown on June 28 was avoided when parliament (the Verkhovna Rada) passed a series of emergency measures on June 21. Three out of eight sections of a new Civil Code were approved (on general provisions, individual rights, and property rights); the new Criminal Code was adopted, allowing it finally to come into force on September 1 (replacing the one dating back to 1960); but, on the whole, the package on legal reform was little more than sticking plaster. The current system therefore survives under a suspended sentence until parliament can do the job properly. The proposed Law on the Judiciary failed to pass after its third reading, on May 24. The Law on the Procuracy only passed its first reading, on June 7.

The constitutional changes proposed in the referendum of April 2000 (collectively a considerable expansion of presidential power; see Ukraine Update, EECR, Vol. 9, No. 3, Summer 2000) are now clearly on hold, at least, until the March 2002 elections. The last attempt at implementation was on January 18, when only 204 deputies voted for the proposals-down from 251 in July 2000 and way short of the necessary two-thirds majority, that is 300 out of 450. The referendum has proved an embarrassing failure, crossing an essential threshold of fair-voting credibility and painting Kuchma as an autocrat even before the Gongadze scandal broke. Even in 2002, the proposals are only likely to be reintroduced if the pro-Kuchma forces decisively shift the parliamentary arithmetic in their favor (parliamentary elections are set for March 31, 2002). The opposition has talked of amending the Constitution to reduce presidential power or even abolish the presidency altogether, although it is very unlikely that the opposition parties will have the necessary votes.

Kuchma, however, was not inclined to give up so easily in his campaign to increase presidential power and simply changed tack. In May, he announced a surprise plan to introduce a system of state secretaries in all government departments who would act as the president's plenipotentiaries, "organizing" the work of the executive and controlling the distribution of all state funds. There was, of course, no such institution envisaged in the Constitution (Art. 113 declares that "the Cabinet of Ministers of Ukraine is the highest body in the system of bodies of executive power"). The new system was even supposed to outlive Kuchma, as appointments were to be made for five years (to 2006, with the next presidential election scheduled for the fall of 2004). An appeal to the Constitutional Court seems likely, but the first round of appointments had already been made in July, albeit after some compromises to ensure accountability through the office of the prime minister rather than depending wholly on the president. The prime minister also proposed the appointees, most of whom were career bureaucrats, with the notable exception of Oleksandr Lavrynovych in the Ministry of Justice. A member of Rukh, the national-democratic opposition, Lavrynovych had headed the parliamentary committee investigating the Gongadze affair.

Kuchma also scored a notable victory with his choice of prime minister to replace the great liberal hope Viktor Yushchenko, dismissed on April 26. Most of the oligarchic clans pushed their own candidates, with speculation centering on that of the largest, Labor Ukraine's choice of the banker Serhiy Tyhypko. But Kuchma clearly preferred to continue the game of balancing the clans against one another. His chosen candidate was Anatoliy Kinakh, like himself a former head of the clan-dominated Union of Ukrainian Industrialists and Enterprise Bosses but not linked to any one group in particular. Kuchma also triumphed with an unexpectedly easy endorsement, on May 29, with Kinakh receiving 239 votes on the first ballot (two voted against, twelve formally abstained, Rukh and the Communist Party did not vote; the Socialist Party surprised many by voting in favor). Kinakh pledged not to turn the clock back and to continue implementing Yushchenko's program, a promise given some substance by his reappointment of most of the ministers from the outgoing administration. Few took comfort, however, from the early announcement of a suspension of Oblenergo (the state electricity monopoly) sales. In round one, before Yushchenko, most had gone at bargain prices to the individuals associated with the Social Democratic Party (United) (that is, the Kyiv business clan). Yushchenko had secured higher prices and sold key stakes to foreign investors (Slovakia's VEZ and the US company AES) in round two. The prospects for round three are uncertain.

Kinakh's appointment also reflected the changing balance of forces in parliament since the beginning of the Gongadze scandal. The center-right New Majority created in January 2000 has now been replaced by a much more informal alliance, rooted chiefly in circumstances rather than ideology, between the oligarchic parties of the center and the Communist Party, which claims to dislike the pro-Western and promarket Yushchenko even more than they do Kuchma. Sparse publicity was given to the failed vote for Kuchma's impeachment on the same day as Kinakh's appointment. With the Communists voting in favor, the motion was backed by a surprisingly high 209 deputies out of the 350 officially present. There is no likelihood of higher numbers being reached before March 2002, however.

Parliamentary arithmetic was also reflected in the likely election lineup. In de facto alliance since 1998, the Communist Party and the Socialist Party now seem determined to run separately. The possibility of an overall left majority has therefore effectively disappeared. Yuliya Tymoshenko, out of prison but with new corruption charges against her (allegedly brought on Kuchma's behalf) by the Russian procurator in August, has appropriated the National Salvation Forum label for her alliance with a number of mainly small right-wing parties. Yushchenko has labeled his bloc Our Ukraine. Despite his expressed hope that "tens" of parties will join, to date support has been confined to traditional national-democratic groups, perhaps missing a crucial chance to broaden the old opposition's appeal beyond the right or center-right.

In the political center still dominated by the oligarchs, two key clans joined forces in June: Labor Ukraine, representing the Dnipropetrovsk region and elements in the Ministry of Interior and security services; and Ukraine's Regions, backed by the rival Donbas clan and Mykola Azarov, head of the state tax inspectorate. Azarov's direct entry into politics raised more than a few eyebrows-given current controversies about politicized tax collection. Weary Ukrainians simply expected the party to be well financed. The party, known as TUNDRA (TU stands for Trudova Ukraina, or Labor Ukraine; ND for the National Democratic Forces; R for the Regions Party; A for the Agrarian Party), still lacks a charismatic leader-it may find one in Kyiv mayor Hryhoriy Omelchenko.

However, the second most powerful oligarchic group, the Social Democratic Party (United) (SDP[U]), the party of Kyiv business and deputy chairman of parliament Viktor Medvedchuk, has to date stood aside from TUNDRA. A former top oligarch and Kuchma confidante, Oleksandr Volkov, has yet to reveal his hand. A few other surprises are also, no doubt, in store. Opinion polls in the summer put the Communists at 20-25 percent, and the well-organized SDP(U) at 5-7 percent. All other parties hovered below the 4 percent barrier for representation-but then the deluge of political public relations has yet to begin. Yushchenko continued to enjoy high personal ratings, but, as when he was prime minister, his reputation for disorganization, even laziness, was making it difficult for Our Ukraine to get off the ground.

All the main clans would like to repeat the success of Russia's Unity in the 1999 Duma elections. None is likely to do so, so long as the president prefers to play divide and rule. The most likely project, a government led by Labor Ukraine, which would then strengthen itself as the largest non-Communist group in parliament and relaunch itself as an authentic Western-style liberal party, was vetoed by Kuchma in the summer. Kuchma is also not willing to contemplate succession scenarios, although rumors of his ill health abound.

Conflict also continued regarding the rules of the game for 2002. On July 5, Kuchma vetoed the draft election law for a third time. The latest version attempted to establish better procedures for election monitoring and envisaged changing the old mixed system used in 1998-half of the 450 deputies elected from territorial constituencies, half from a national party list-to a system more favorable to the established parties. Three quarters of the deputies would now be elected from party lists (335) and one quarter from constituencies (115). Such an amendment would have likely favored the Communist Party. Parliament reiterated its preference for the changes by adopting an only slightly amended version on July 12, which Kuchma again vetoed on August 14. The legislature seemed finally to cave in on September 13, when it voted by 230 to 113 (with 6 abstentions) to accept a reversion to the 50/50 system.

Another crucial element in the preelection maneuvering was the new Law on Political Parties, adopted on April 5. Most observers welcomed the law as strengthening parties' legal status, although several questions were left unanswered concerning the status of party property, the activities of local party cells, and charitable functions. The very existence of section five, "State Control of the Activities of Political Parties," envisaging accountability to the Ministry of Justice and Central Election Commission, was also strongly criticized by many. Under Art. 21, the procurator general was given alarmingly vague powers to ban any party that contravened (his interpretation of) the law.

There was general agreement that the new law should encourage the consolidation of Ukraine's highly fragmented party system (110 parties were officially registered as of summer 2001). However, the smaller opposition parties argued that the chosen means of reducing the number of parties would favor those with access to "administrative resources." Any new party (it was not clear if this provision applied to existing parties) would now require 10,000 signatures of support before its founding congress, "from no less than two thirds of raions of no less than two thirds of the oblasts of Ukraine . . . and no less than two thirds of the raions of the Autonomous Republic of Crimea" (Art. 10). New parties were given six months from the date of central registration to jump through more hoops at the local level (Art. 11): "to secure the establishment and registration in accordance with this law of their oblast, city, and raion organizations in a majority of the oblasts of Ukraine." Not an easy task for most. The highly specific reference to "two thirds of the raions" in Crimea was, no doubt, intended to bring the party system on the peninsula more in line with that of the rest of Ukraine but was also an invitation to chicanery in one of Ukraine's most corrupt regions, where few national parties have as yet any real roots.

Finally, although having the admirable aim of bringing the highly shadowy systems of party finance into the open, the law sidestepped the topical issue of state finance for political parties. By declaring that the "state guarantees political parties the right to costs and other means (maino) for fulfilling their statuary obligations," Art. 14 left open the possibility of support, but the coffers themselves were apparently not opened. Article 6 gave a limited list of certain ex officio prohibitions on party membership-and of legitimate sources of party finance. Surprisingly, the position of head of the State Tax Inspectorate was not on the list.

Of equally far-reaching potential importance was the ruling of the Constitutional Court, on July 4, accepting that Art. 81 of the Constitution could be amended so that deputies elected on party lists would lose their mandate if they attempted to change parties after their election. Parliament promptly gave preliminary approval on July 11 to such a change. This would hopefully reverse the effects of the Court's disastrous previous ruling in December 1998, giving deputies carte blanche to move back and forth among various parties. Since 1998, Ukraine's 450 deputies have managed to change sides a staggering 562 times.

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