Lack of clarity lends itself to greater confusion in relations between Parliament and the president.
“THE CONSTITUTIONAL AMENDMENTS, AS ADOPTED, DO NOT YET … ESTABLISH A BALANCED AND FUNCTIONAL SYSTEM OF GOVERNMENT.
– Venice Commission
Under amendments to Ukraine’s constitution, which kicks in after the new parliament is elected on March 26, lawmakers will be invested with many powers previously held by the president, such as the right to choose the prime minister and cabinet ministers. However, international experts say the country’s transition to a parliamentary republic may not be as clear cut or smooth as the architects of the amendments planned during the peak of the Orange Revolution.
After the votes have been counted at the end of this month, President Viktor Yushchenko will lose significant authorities enjoyed by his predecessor, Leonid Kuchma, who got the reform wagon rolling as he was about to leave office. Yushchenko was forced to agree to the constitutional amendments in order solidify his final bid for power in December 2004.
Supporters of the amendments, including parties that supported Yushchenko for president like the Socialists, have argued that the extensive presidential powers enjoyed by Ukrainian presidents had to be checked. However, experts familiar with the issues say the changes are at best unclear and might introduce even greater tension to relations between the executive and legislature.
Incomplete
Bohdan Futey, a judge on the United States Court of Federal Claims who helped draft independent Ukraine’s first constitution, described the country’s main law, which is not even 10 years old, as “incomplete.”
“Whenever you are trying to do something very hurriedly, under great pressure and amidst political turmoil, you really do not finish what you started to do,” he said.
The first attempt to change the Ukrainian Constitution was initiated by Kuchma, soon after he was re-elected as president in November 1999. In a controversial referendum held in August 2000, Kuchma proposed introducing a bicameral parliament and reducing the number of lawmakers from 450 to 300. Kuchma would have also gained the right to dismiss the legislature if lawmakers failed to create a majority or approve a state budget in a set time period. Moreover, Kuchma wanted to strip lawmakers of their immunity from prosecution. But in the end, lawmakers blocked the amendments.
Kuchma again proposed constitutional change in June 2003, the year before his final term was due to end, calling for local, regional and national elections to be held simultaneously. The opposition accused him of trying to prolong his presidency, or stay on in power as prime minister. By April 2004, Yushchenko rallied enough lawmakers to shoot down the legislation.
Then, on Dec. 8 2004, when Yushchenko was about to face Kuchma’s handpicked successor and prime minister at the time, Viktor Yanukovych, in an unprecedented third tour, the future president was forced to support a package of constitutional reforms hastily cobbled together on the basis on early legislation.
According to Judge Futey, it is precisely the conditions under which the amendments were passed that make them so sketchy and poorly thought out.
The European Commission for Democracy through Law, more commonly known as the Venice Commission, has also criticized the changes.
“In general, the constitutional amendments, as adopted, do not yet fully allow the aim of the constitutional reform of establishing a balanced and functional system of government to be attained,” reads a report by the Venice Commission.
One of the Commission’s main concerns is over a restriction introduced, which no longer allows lawmakers to leave the factions in which they were elected to parliament. According to the Commission, this provision infringes on the deputies’ right to a free and independent mandate, which they argue should be explicitly guaranteed in the Constitution.
Some Ukrainian lawmakers had claimed that they were forced to change factions under duress from former authorities, while others have long been suspected of doing so for financial incentive.
Judge Futey doesn’t have a problem with the restriction, saying that lawmakers frequently “sold” their votes, switching allegiance from faction to faction based on personal financial interests rather than political belief. Now this will no longer be possible.
Also, unlike in previous years, the next parliament will be elected strictly according to party lists and not half according to single seat constituencies.
Another concern about the amendments is exactly how lawmakers will go about forming a majority among themselves. The new rules say they must do so within 30 days after the new parliament convenes. If they don’t, the president can dissolve the Rada and call new elections. But fine points like how often such a turn of events could be repeated have not been spelled out.
The Venice Commission noted that Article 90 states that the inability of parliament to form a coalition or the government will result in its dissolution and extraordinary elections. However, paragraph 4 of the same article introduces a one-year ban on the early termination of the re-elected Parliament.
This lack of clarity lends itself to greater confusion in relations between Parliament and the president. Futey suggests that this confusion has arisen because Ukraine is caught in the middle of a transition from a presidential to parliamentary system.
Too much power
The increased powers of Ukraine’s Prosecutor-General as stipulated in the amendments also raise concerns. Now, the Prosecutor-General has the power to challenge court decisions. This provision practically puts the Prosecutor General above both the executive and the judicial branches. The prosecutor can now also oversee the observance of constitutional, human and civil rights and freedoms, which overlaps with the obligations of the Ombudsman. Rather than clearly delineating responsibilities, this provision appears to undermine separation of powers, Futey said.
The additional powers of the Prosecutor General have also been criticized by the Venice Commission.
“In this respect, the Commission cannot but recall once again that such an extension of the power of the Prosecutor General goes against European standards in this field as well as against the Ukrainian commitments made when acceding to the Council of Europe.”
“All of that, in my view was adopted illegally, because it was not adopted in conformity with the Constitution,” Futey said.
According to the U.S. judge, the previous Constitution was pretty good as it was, even though it needed some refinement in order to meet European standards.
“So you have a system that is somehow approved in my view illegally, and only time can tell how it is going to work,” he added.
Vadim Karasyov, a political analyst running for parliament on the opposition Viche Party’s list, said that overall the new amendments to the Constitution make Ukraine’s political system more polycentric. But he agreed that some provisions still need to be clarified and addressed.
After the election
As Ukraine’s various blocs now brace to compete for a place in the newly empowered parliament, President Yushchenko has long hinted that he may try to change the country’ main law once again.
Yushchenko would have attempted before the March 26 poll but was prevented from doing so by parliament, which is holding up the swearing in of new Supreme Court justices. It is the Constitutional Court which could decide whether the amendments had been introduced legally in the first place.
The president could also try to hold a referendum or attempt to get 300 lawmakers to change the constitution again; however, these would be more difficult.
After the Verkhovna Rada flexed its new muscles in early January by ousting Prime Minister Yuriy Yekhanurov’s government, Yushchenko has seemed more resolved to reverse the events of December 2004. The president’s Our Ukraine party has said it plans to introduce legislation on holding a referendum after the March 26 elections.
Futey said that if a pro-presidential coalition emerges with at least 300 votes after the election, Yushchenko has a good chance of reversing the amendments.
