Can constitutional reform save Ukraine?

When Ukrainians wake up on Monday morning, they may find themselves living under a new constitution that is also an old constitution – courtesy of opposition demands that the country return to its 2004 fundamental law. In this post, Josh Black explains what the change means for Ukraine, and asks whether it will lead to a lasting truce.

Maidan by night, in happier times. Photo by Podluzhnaya.

Maidan by night, in happier times.
Photo by Podluzhnaya.

Violence erupted in Ukraine again this week, but with considerably more serious consequences. Most news agencies are reporting 75 deaths in Kyiv, with more than 500 people injured. Tension has been building in the Ukrainian capital since protests began four months ago, with the Euromaidan having little to show for the hardships it has endured. Yet the cause of these most recent violent outbreaks is perhaps a surprising one. On Tuesday, the opposition sought to register a bill in the Verkhovna Rada (Ukraine’s parliament), seeking a return to the country’s 2004 constitution. The government, fearful of losing the vote, refused to register the bill.

After two days of confrontation between police and protesters, a deal appears to have been reached to bring forward presidential elections (not by much) and to return to the constitution of 2004. However, what that means for Ukraine is unclear, and is likely to require years of political goodwill in order to produce a working body of conventions.

The 2004 Constitution

As part of Round Table negotiations designed to broker a peaceful end to the Orange Revolution, and to win the support of the Socialist Party leader, Oleksandr Moroz, the Orange camp agreed to support constitutional reforms they had opposed during the 2004 election campaign.  Then-President Kuchma performed a similar volte-face on the reforms, leading many to suspect that elements within the government were keen to lessen the impact of defeat in the forthcoming presidential elections.  Indeed, opposition to the reform came from the Tymoshenko (despite the fact that she was likely to be a major beneficiary), and Yushchenko’s close aide, Petro Poroshenko, who insisted on the need for strong presidential in the transition period.

On 8 December 2004, the Rada passed Law 2222-IV by a decisive majority, introducing changes to take effect on 1 January 2006.  The law included a multiplicity of changes with a significant impact on the institutional structure described above.  Firstly, Ukraine became a parliamentary-presidential, as opposed to presidential-parliamentary, regime as the Rada was given increased oversight of presidential prerogatives, and the right to confirm or reject the President’s nomination for Prime Minister.

Secondly, the imperative mandate was introduced (banning MPs from switching parties on pain of facing as fresh by-election).  Thirdly, and perhaps most significantly, the law provided for the election of future parliaments by a fully proportional system on closed party lists. The removal of single-member constituencies should have removed strong local support bases as a factor in domestic politics by requiring political actors to build coalitions likely to exceed 3% of the national vote, or otherwise strike a deal with the leaders of the major electoral blocs to ensure that faction members were placed on these party lists.

The impact
It took just over a year for Ukraine to suffer its first constitutional crisis under the new system, when seven members of President Yushchenko’s party, Our Ukraine, threatened to join the party of Prime Minister Yanukovych. Ukraine’s history of weak political parties and underhanded competition was a major factor in undermining the new constitution, with the partnership of Yushchenko and Tymoshenko divided by a mixture of mutual personal dislike and political competition.
A return to the 2004 constitution does not have the advantage of knowing that it worked, or is workable. Given time to bed-in, it should encourage stronger political parties, more accountable government and more responsible coalitions. Yet much of that will depend on brute politics – who occupies the presidency, the prime minister’s office, and what the make-up of the Rada is. For that reason, a triple whammy of constitutional reform, presidential and parliamentary elections would be ideal, and the sooner, the better.

One thought on “Can constitutional reform save Ukraine?

  1. Pingback: Pot una reforma constitucional salvar Ucraïna? | Extramurs

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