Volume 9 Numbers 1/2

Winter/Spring 2000

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

Ukraine - The presidential election, a dramatic parliamentary crisis, and a controver-sial constitutional referendum have shaken the Ukrainian political scene. In the election's first round of voting for the presidency on October 31, 1999, incumbent Leonid Kuchma received 36 percent of the vote, while his main rival, Petro Simonenko, of the Communist Party (CP), garnered 22 percent.

In the November 14 runoff, Kuchma scored a convincing Ukraine.WINTER/SPRING 2000 41 victory, winning 56 percent of the vote, against Simonenko's 38 percent. The election was monitored by more than 500 observers from 37 countries. As expected, the fairness and legitimacy of the election were questioned immedi-ately after the first round. On October 31, several candidates reported violations of electoral regulations. Kuchma's unsuccessful rivals complained in particular about biased media coverage, claiming that the incum-bent had received more television time than the 12 other candidates combined, and that pro-Kuchma advertisements were broadcast right before the vote, despite the ban on campaign advertisements 24 hours before the opening of the polls.

According to a joint statement issued by the OSCE and the Council of Europe's Parliamentary Assembly, voting was orderly, and there was no imme-diate reason to doubt that the first round of the election reflected the electorate's will. The statement described the campaign, however, as "highly questionable." The head of the OSCE monitoring mission, Simon Osborn, said that serious campaign-period violations included forged newspaper articles, confiscation of campaign materials, improper involvement of public officials in campaigning, and various media violations. According to the head of the Central Election Commission, Mykhaylo Ryabets, the commission received 37 reports of violations but found no evidence of serious fraud.

The political wrangling did not end there. Kuchma's inauguration developed into a confrontation between the president and the Verkhovna Rada (the Supreme Council, or parliament). On November 19, parliament passed a resolution declaring that Kuchma's inauguration would take place on November 30, in the parliament. The same day, however, Kuchma announced that his inauguration would be held in the Ukraine Concert Hall, saying that he would take his oath in front of the people not the legislature. This deci-sion provoked bitter criticism, mostly from leftist deputies. Deputy Oleksandr Yelyashkevich commented that Kuchma's inauguration in the concert hall would signal the "beginning of the end of parliamentarism" in Ukraine. The inauguration was, nevertheless, celebrated in the concert hall. Some 160 Communist and leftist deputies refused to attend.

Political tensions grew in the next months, leaving parliament's work paralyzed by one of the biggest crises in post-Soviet Ukraine's short history. On January 13, 241 deputies (a parliamentary majority) from 11 right-wing and centrist factions and groups announced the creation of a progovernment majority coalition. The majority was formed by representatives of the Social Democratic Party (United) (SDP[U]), the Revival of Regions (RR), the Fatherland Forum (FF), the Popular Democratic Party (PDP), the Labor Party, the Green Party (GP), both caucuses of the Popular Rukh (PR), the Gromada Party (GP), the Reforms Congress (RC), and the Independent Party (IP). The coalition deputies pledged to end the continuous confrontation between parliament and the executive and establish constructive and cooperative relations between the two. At the same time, the coalition requested that President Kuchma guarantee that the current parliament would serve its full term, which ends in March 2002. The new parlia-mentary coalition, led by former president Leonid Kravchuk, immediately began collecting signatures to oust parliamentary speaker Oleksandr Tkachenko and his deputy, Adam Martynyuk, from their posts. On January 20, the majority attempted to drive through a motion (supported by 235 deputies) calling both for amendments to the parliamentary voting procedures and the resignation of Tkachenko and Martynyuk. However, Tkachenko refused to put the motion to a vote and was supported by Communist and other leftist deputies who physically blocked access to the parlia-mentary presidium and the speaker's rostrum.

Facing fierce resistance from the Communists, the majority of MPs convened an alternative parliamentary session at a separate location. The following day, January 21, they gathered separately in the Ukrainian House exhibition center in Kyiv. There, they voted unanimously (239 votes in favor) to oust both Tkachenko and Martynyuk.

Tkachenko denounced the alternative session as illegal, noting that the Constitution and parliamentary regulations stipulate that only the speaker has the right to convene legislative sessions. All resolutions adopted at other sessions were illegitimate, he claimed, even if adopted by a majority of deputies. On the same day, Tkachenko appealed to the nation, accusing President Kuchma of provoking the parlia-mentary crisis and of attempting to create a puppet legislative body to legalize his dictatorship. On January 22, the leftist minority appealed to the Council of Europe, seeking its support to prevent the "violation of freedom and democracy" in Ukraine.

The majority, paying no attention to these protests, kept on working. On February 1, it elected Ivan Plyushch (PDP) as parliamentary speaker. Viktor Medvedchuk (SDP[U]) was elected first deputy speaker, and Stepan Havrysh (RR) became deputy speaker. The heads of 21 parliamentary committees, all of them deputies from the majority, were also elected. The work of the parliament resumed later in February, after the newly elected speaker managed to force his way into the speaker's office with the help of his bodyguards. Nevertheless, many analysts doubt that parliament will be capable of productive work after this confrontation and predict it will be dissolved before the end of its term in 2002. Such fears have been heightened in the wake of the April 16 constitutional referendum (see below).

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President Kuchma, on the other hand, wasted no time getting to work, forming his new government and issuing controversial decrees. Valeriy Pustovoitenko, Kuchma's initial nominee for prime minister, was rejected by parliament (before it bifurcated in January); Kuchma then nominated national bank chairman Viktor Yushchenko for the premiership. Many analysts believe that Yushchenko's nomination was aimed, in part, at pleasing international financial institutions. Yushchenko is considered a strong proreform politician and enjoys a good reputation in the international finan-cial community. On December 22, parliament approved Yushchenko's candidacy by a vote of 296 to 12. He stated that the government and parliament needed to sign an agreement on "setting up joint responsibility" for the state of affairs in Ukraine. Next, Kuchma nomi-nated three deputy prime ministers and 11 ministers. The three deputy prime ministers-Yuriy Yekhanurov, Yuliya Tymoshenko, and Mykola Zhulynskyy-are new figures in the government (for Tymoshenko, however, see Ukraine Update, EECR, Vol. 7, No. 2, Spring 1998). Kuchma also appointed a new education and science minister, Vasyl Kremin, and culture minister, Bohdan Stupka. Eight ministers from the previous cabinet retained their portfolios: the minister of fuel and power engineering (Serhiy Tulub), the minister of the interior (Yuriy Kravchenko), the foreign minister (Borys Tarasyuk), the defense minister (Oleksandr Kuzmuk), the labor and social policy minister (Ivan Sakhan), the finance minister (Ihor Mityukov), the transportation minister (Leonid Kostyuchenko), and the justice minister (Syuzanna Stanyk). Former deputy prime minister Serhiy Tyhypko was nominated to head the economy portfolio.

Kuchma also signed a decree reducing the number of ministries and other central executive bodies from 89 to 35. The number of ministries was reduced from 18 to 15 and the number of cabinet members from 24 to 20. Ukraine is pursuing administrative streamlining in an effort to meet the IMF's conditions for the continu-ation of its loan program.

Ukraine has also ventured into the political mine-field of land reform. On December 4, Kuchma issued a decree introducing radical reforms of the agricultural sector. Ukrainian agriculture is still based on the old Soviet system of collective farms. The decree abolished collective farms and promised to divide the land and property among the workers who will be able to orga-nize private enterprises or agricultural cooperatives on their plots. The decree also orders the government to supply the owners of the plots with ownership certifi-cates by the end of 2002. Needless to say, the decree met with strong resistance from leftist MPs. On December 15, Petro Simonenko appealed to parlia-ment, demanding it launch impeachment proceedings against Kuchma and declaring the decree an "act of national treason." On December 16, representatives of the leftist factions threatened to boycott parliamentary sessions unless a discussion of the decree was included in the parliamentary agenda. After a majority of MPs voted against any discussion, some 100 deputies appealed to the Constitutional Court, asking it to rule the decree unconstitutional. The Court has not yet considered their appeal.

This controversy was soon thrust into the back-ground by an even bigger one: Kuchma took the first steps toward amending the Constitution and recali-brating the balance of power between parliament and president. He has long claimed that parliament has blocked him from pursuing the necessary economic and political reforms. On January 15, he signed a decree to hold a nationwide referendum on April 16 to introduce major constitutional revisions. According to Kuchma's initial proposal, the referendum would put six questions before the public. The most dramatic was a vote of no-confidence in parliament-if the public voted a lack of confidence, parliament would be dissolved. Also dramatic was whether a new constitution could be adopted by means of a referendum. Another question asked whether the president should have the right to disband the parliament if it failed to form a majority within a month after its election or to adopt a budget within three months of its submission. A fourth ques-tion asked whether parliamentary deputies should be stripped of their immunity from criminal prosecution. The last two questions sought public opinion on major restructuring: slashing the 450-seat parliament to 300 seats, and creating an upper chamber to establish a bicameral legislature. The decree was signed in spite of a January 11 decision of parliament (307 votes to 24) declaring a temporary moratorium on local and national referenda in an attempt to block Kuchma's plan. Kuchma's action met with harsh criticism from politi-cians of both the left and right. Its opponents described it as the first step toward dictatorship, and many warned darkly of parallels to the "Belarus variant"-in 1996 democratically elected President Lukashenka held a referendum on a new constitution that gave him greatly increased powers. Kuchma's plan also earned him a sharp rebuke from the Council of Europe, which warned that the proposal was unconstitutional and threatened that it might suspend Ukraine's membership.

The CP immediately appealed the referendum to the Constitutional Court. On March 29, the Court handed down a ruling that declared two of the ques-tions- the no-confidence vote and the adoption of a new constitution by popular plebiscite-unconstitu-tional. The no-confidence vote was found unconstitutional because Ukraine's Constitution does not stipulate that such a vote-whose result could suspend the activities of a state body-can be held via a referendum. The question concerning the adoption of a new constitution by means of a referendum was disal-lowed because it put the cart before the horse. In the words of the Court, asking the people if they wished to adopt a new constitution by referendum without first asking if they wanted to change their constitution "casts doubt on the force of the Basic Law and may lead to weakening the foundations of the constitutional system." The Court ruled that the four remaining ques-tions were constitutional and could therefore be put before the public. As some observers have pointed out, the Court's reasoning is mystifying. It offers no convincing distinction between the allowed and disal-lowed questions. The four questions that were put to the public can just as effectively amend the Constitution as the disallowed questions. Some observers character-ized the decision as politically driven: the Court simply struck down the two most troubling questions.

In any event, on April 16, Ukrainians (who typi-cally do not hold their politicians in high esteem) turned out in high numbers to approve the four questions put before them. The Central Electoral Commission announced a turnout of nearly 79 percent, well above the required 50 percent. Over 90 percent of voters supported cutting the number of parliamentary deputies from 450 to 300; 81 percent were for the intro-duction of a bicameral legislature; and 89 percent favored stripping deputies of their immunity from crim-inal prosecution. Most significantly, 84 percent of voters gave the president the right to dissolve parliament if it fails to form a majority within one month or pass the budget within three months. The referendum-which is binding, according to the Constitutional Court's March ruling-is a resounding personal victory for Kuchma, who has struggled continually with a hostile and bitterly divided parliament. It remains to be seen whether he will now steer the country safely toward much-needed economic and political reforms. More likely, the referendum will precipitate a major constitu-tional and political crisis.

The looming question is, what happens now that the people have spoken? In theory, their wishes need to be implemented by parliament. This will require a majority of deputies to draft the necessary bills and two-thirds of deputies to approve each amendment to the Constitution. If the deputies fail to do so, Kuchma might dissolve the parliament. Whatever the outcome, Ukraine's political troubles seem destined to stay center stage for some time.

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The Constitutional Court also made news with another ruling, in a move that shows Ukraine has finally taken steps to meet its obligation under the European Convention of Human Rights. On December 30, the Court ruled the death penalty unconstitutional. The ruling instructed parliament to amend the Criminal Code to remove any references to the death penalty as soon as possible. The Court noted that Art. 27 of the Constitution recognizes the right to life and does not contain any provisions for applying the death penalty as an exception. The Court also pointed out that Ukraine had pledged to abolish capital punishment when it joined the Council of Europe in 1995. The Court's deci-sion is final and cannot be appealed.

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Former prime minister Pavel Lazarenko-who is seeking political asylum in the United States-leveled serious allegations of corruption against Ukrainian governmental authorities. On January 28, the Financial Times reported that Lazarenko was preparing to testify before the US House of Representatives that President Kuchma's government was engaged in embezzlement and money laundering. Lazarenko claims that $613 million in IMF funds were diverted from the central bank in December 1997 and invested in speculative government bonds that yielded a 66 percent rate of interest. Approximately $200 million was made on the operation and allegedly was deposited in the Belgian and Swiss accounts of persons close to Kuchma, including Kuchma's aide Oleksandr Volkov. Experts believe that Lazarenko's testimony could postpone his extradition to Switzerland and might complicate the resumption of the IMF loan program to Ukraine. (For more on the allegations of money laundering and embezzlement leveled against Lazarenko himself, see the Ukraine Update, EECR, Vol. 8, Nos. 1/2, Winter/Spring 1999.) President Kuchma immediately denounced Lazarenko's allegations, calling them a "complete absurdity" and a "provocation against the Ukrainian president and the entire course of economic reforms." Nevertheless, the IMF announced its inten-tion to audit its 1997 credits to Kyiv.

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