Ukrainians will almost certainly get major changes to the Constitution, whether they like it or not.
To change the Constitution in a way that gives him and future presidents more power, President Viktor Yanukovych will benefit greatly from a friendly Constitutional Court that ratifies any new document.
But have his supporters stacked the 18-member judicial body with Party of Regions supporters to ensure that the court sanctions whatever the Presidential Administration wants?
That’s what it looks like after four new justices were sworn in by parliament on Sept. 21, only days after Ukraine’s Congress of Judges dismissed their predecessors who may have been obstacles to strengthening presidential power.
The four replacements are seen as likely to favor the annulment of the constitutional changes agreed to in 2004 as part of a rushed compromise agreement ending the democratic Orange Revolution.
Mykhailo Gultai, Oleh Serhiychuk, Natalia Shaptala, Mykhailo Zaporozhets
Ukrainians will almost certainly get major changes to the Constitution, whether they want them or not, as President Viktor Yanukovych is determined to strengthen presidential powers. Four new appointments (shown above) to the 18-member Constitutional Court give the president a commanding majority of loyal judges to ratify anything the administration wants, court watchers say.
The changes were adopted as demonstrators took to the streets to protest the Nov . 21, 2004 presidential vote rigged in favor of Yanukovych.
They took effect in 2006, diluting presidential powers and strengthening parliamentary ones.
“In 1996, we had the best constitution in Europe (…) I acknowledge the mistake [we made in 2004], now it’s time to correct it.”
– Olena Lukash, Yanukovych’s representative at the Constitutional Court.
They were supported strongly by Yanukovych, who sought to limit the authority of his rival, Viktor Yushchenko who became president after winning a repeat vote on Dec. 26, 2004.
But more than five years later, Yanukovych has flip-flopped on the issue. Now, as president, he is pushing for stronger presidential rule and appears to have stacked the Constitutional Court with enough judges to make it happen.
After monopolizing political power in Ukraine by forming a dominant coalition in parliament by bending the rules of Ukraine’s existing constitution, Yanukovych now appears close to grabbing the strong presidential rule that former president Leonid Kuchma had during his notoriously corrupt and authoritarian 10-year rule.
The new composition of the Constitutional Court comes as the justices started on Sept. 23 to rule on whether the 2004 agreement to shift powers to parliament should be canceled. A majority of the 450 national lawmakers last summer asked the court to rule on the issue. A decision is expected within days.
“In 1996, we had the best constitution in Europe (…) I acknowledge the mistake [we made in 2004], now it’s time to correct it,” Olena Lukash, Yanukovych’s representative at the Constitutional Court, said on Sept. 23.
Yanukovych is believed to now have commanding control over the loyalties of the newly constituted Constitutional Court – with 15 of 18 justices in his favor, according to one court watcher.
“There are now only three judges left who are critical of Yanukovych. These are judges appointed by [former President Viktor] Yushchenko.”
– Vladimir Fesenko, director of the Gorshenin Institute.
“There are now only three judges left who are critical of Yanukovych. These are judges appointed by [former President Viktor] Yushchenko,” said analyst Vladimir Fesenko, director of the Gorshenin Institute.
Many experts and pro-democracy activists, including David J. Kramer, who takes over this month as executive director of U.S. based Freedom House, see the stacking of the Constitutional Court as the latest of a series of anti-democratic steps.
“The internal developments this year in Ukraine concern me more than any foreign policy issues,” said Kramer, who served as Assistant U.S. Secretary of State for Democracy, Human Rights, and Labor from March 2008 to January 2009.
“The way the government was formed in March, the postponement of local elections until the end of next month, the ramming through the Verkhovna Rada of the Kharkiv deal, efforts to change the Constitutional Court and the constitution itself, pressure on journalists and the case of the missing journalist Vasyl Klymentyev, and [Security Service of Ukraine] harassment of non-governmental representatives add up to a disturbing pattern that, taken together, do not bode well for Ukraine’s democratic development and threaten to reverse many gains in the area of democracy and human rights over the past five years,” Kramer added.
‘Losing independence’
Yaroslava Machuzhak, one of the more independent-minded judges recently replaced, was also visibly distressed when discussing the future of the court.
“I am not an optimist about the ability of the Constitutional Court to withstand pressure and make a decision … purely based on jurisprudential criteria. I fear the Constitutional Court is close to losing its independence.”
– Yaroslava Machuzhak, an independent-minded judge recently replaced.
“I am not an optimist about the ability of the Constitutional Court to withstand pressure and make a decision … purely based on jurisprudential criteria,” Machuzhak said. “I fear the Constitutional Court is close to losing its independence.”
Machuzhak said she resigned when it became obvious that the invitation-only Congress of Judges, which decides judicial appointments, would replace her and her colleagues on Sept. 16.
Delegates voted overwhelmingly to replace Machuzhak and her three colleagues – Ivan Dombrovsky, Anatoly Didkivsky and Vyacheslav Dzhun – who all have resigned since August.
The congress voted in three new judges – Mykhailo Gultai of Kharkiv, Mykhailo Zaporozhets of Lugansk and Natalya Shaptala of Donetsk. All come from the heartland of support for Yanukovych and his Party of Regions, and from regions long notorious for lacking independent courts.
The candidacy of a fourth judge, Oleh Serhiychuk, from the Supreme Administrative Court, was supported by Serhiy Kivalov, the Party of Regions parliamentarian and head of the Verkhovna Rada justice committee, according to the Ukrainski Novyny news agency. Kivalov became notorious as head of the Central Election Commission during the rigged Nov. 21, 2004, second-round presidential election in which officials declared Yanukovych the winner, triggering the Orange Revolution that led to Yushchenko’s ultimate victory in the infamous Dec. 26, 2004, repeat vote that followed.
Whatever the new qualifications are for getting on the Constitutional Court in the Yanukovych era, it appears that constitutional expertise and independent decision-making are no longer desired.
Machuzhak said that she and the other departing judges had opposed the Constitutional Court ruling earlier this year that sanctioned how Yanukovych’s allies formed a ruling coalition in parliament in March.
In contradiction to an explicit law and a 2008 Constitutional Court ruling on the matter, the justices this year allowed coalitions to be formed by individual deputies – regardless of party affiliation – even though voters elected them on the basis of political party lists.
No longer on the Constitutional Court
Anatoly Didkovsky, Ivan Dombrovsky, Vyacheslav Dzhun, Yaroslava Machuzhak
This ruling, derided by critics as the start of judicial decisions that rubber-stamp administration policy, allowed Yanukovych’s Party of Regions to unseat the government of arch-rival Yulia Tymoshenko, who as prime minister held on to a shaky majority before then.
According to media reports, three of the four departed Constitutional Court judges – Dombrovsky, Didkivsky and Machuzhak – had also opposed Anatoly Golovin’s candidacy as chairman of the Constitutional Court in June. The opposing judges were effectively sidelined from participating in court work in the run-up to the vote on the new chairman, the reports suggested.
Like three of the four new judges, Golovin also hails from Yanukovych’s stomping ground in eastern Ukraine. His career started in the Soviet KGB and after independence he served 13 years in the Donetsk branch of the Security Service of Ukraine, or SBU. Golovin then switched to the state prosecutor’s office, where he rose to become deputy head prosecutor before joining the judiciary.
The independence, honesty and competence of the Constitutional Court have been challenged for at least a decade. And the latest developments will likely sully its reputation further.
In 2004, the judges ruled that ex-President Leonid Kuchma, in office from 1994 to 2005, was eligible to run for a third term.
“Most judges now have backgrounds in state prosecution and security services.”
– Serhiy Vlasenko, a deputy of the oppositional Bloc of Yulia Tymoshenko.
The ruling came despite the Constitution’s stipulation that a president should be limited to two terms. The court further damaged its reputation in 2007, when Yushchenko fired four of the 18 justices to avoid the prospect of an unfavorable ruling on his right to disband parliament and call early elections that year.
According to court watcher Fesenko, only three of the current members of the constitutional court can be considered experts in constitutional law.
The rest, he said, have been appointed for reasons of political loyalty “both under the previous president as well as under the current one.”
At the opening Constitutional Court hearing on Sept. 23, one acknowledged constitution expert among the judges warned of major consequences that could follow if the constitutional changes from 2004 were ruled “unconstitutional.”
“What will we do with the current laws that will no longer conform to the constitution?” asked Viktor Shishkin, who was appointed under Yushchenko’s presidential term.
According to parliamentarian Serhiy Vlasenko of the oppositional Bloc of Yulia Tymoshenko (ByuT), “most judges now have backgrounds in state prosecution and security services.” Vlasenko said he expects them to vote on pro-presidential constitutional changes “with eyes closed and hands raised.”
“In a state that aims to become a state of law, courts have to be authoritative, powerful and self-sufficient – genuinely independent. I believe my presidency’s main goal lies in taking Ukraine out of the group of outsiders among European countries. (…) This can’t be done without independent and professional courts”.
– Viktor Yanukovych, president of Ukraine.
However, while addressing the Congress of Judges on Sept. 16, Yanukovych pledged to support the independence of the judiciary.
“In a state that aims to become a state of law, courts have to be authoritative, powerful and self-sufficient – genuinely independent,” Yanukovych said. “I believe my presidency’s main goal lies in taking Ukraine out of the group of outsiders among European countries. (…) This can’t be done without independent and professional courts”.
Yanukovych also promised to eradicate “telephone justice,” the Soviet-era practice of political interference in judicial decisions.
Back to future
The agreement to change the Constitution came during the 2004 Orange Revolution. The changes were pushed by the tandem of Yanukovych and Kuchma, the outgoing president, on Yushchenko, his successor, as part of a bargain to hold the decisive Dec. 26, 2004, Yushchenko-Yanukovych rematch. Many believe Yushchenko betrayed the Orange Revolution by acquiescing to these changes.
The Kuchma-inspired changes expanded the powers of the Verkhovna Rada, giving lawmakers the right to nominate and ratify the prime minister, as well as ratify the president’s nominations for defense, interior and foreign ministers. The prime minister nominated other government members, subject to ratification by the parliament.
Supporters said the revised Constitution, which took effect in 2006, was more in line with European parliamentary democracies. But a growing chorus of critics argues that the changes muddled authority between the presidency, government and parliament, thereby contributing to the political conflict and gridlock that characterized the ruling tandem of Yushchenko and Tymoshenko.
Moreover, the argument that the procedure for making the constitutional changes in 2004 was legally flawed is not new, said Bohdan Futey, a U.S. Court of Federal Claims judge who is of Ukrainian roots and has advised Ukraine on constitutional issues. Futey, in fact, came to the same conclusion in a legal opinion to Yushchenko in 2005. Among his arguments: the Constitutional Court had already voted against similar changes to the Constitution in May 2004 and, according to the Constitution, a year had to pass before repeat voting is allowed.
In addition, the Constitutional Court ruled in October 2005 that changes to the political system must be approved by referendum before they go into effect. According to Fesenko, constitutional changes have to be approved item by item, whereas the numerous changes introduced in the 2004 agreement were enacted by one vote in parliament. In addition, changes were made to the law after it had been cleared by the Constitutional Court in 2004.
The precise legal arguments may matter little to Yanukovych, who wants stronger political powers to push through urgent changes, but may lack the 300 votes required in the Verkhovna Rada to change the Constitution legislatively. Therefore, a favorable court ruling would be the easiest way. In the very least, it could build moral ground in parliament for Yanukovych’s push to return the country to stronger presidential rule.
But it remains very much unclear if Ukraine’s oligarch-dominated parliament would consent to handing so much authority back into the hands of one individual.
Bitter clashes between parliament and Kuchma during his 10-year reign are still fresh in the memories of many lawmakers. Moreover, many top businessmen could fear the fate of Mikhail Khodorkovsky, the Russian billionaire who was thrown into jail under a strong Russian presidency.
Kyiv Post staff writers Graham Stack, Peter Byrne and Yuriy Onyshkiv can be reached at [email protected], [email protected] and [email protected], correspondingly.
