Wednesday, April 30, 2008

Changing Constitutions

Details of proposed reforms begin to leak-out

Nerkalo Nedeli has published an informative article on the game play that is about to unfold and with it some of the details of the proposed reforms and the alliance to divide the spoil of office.

One Step forward one step back

Ukraine could become a two party state with only Bloc Yulia Tymoshenko and Party of Regions being represented in the Parliament

On the positive side the proposal would see Ukraine become a Parliamentary democracy with the President losing authority and power.

The down side is that the Parliament will no longer provide a checks and balance against the executive. Instead it will be a mere rubber stamp for the executive of the day.

The main criticism with the proposal is the model of representation and method of election.


"We held a discussion within the party, within the bloc, and came to a firm decision: we'll be arguing for the present threshold of 3%. It is absolutely affordable for most of the political forces. The choice must be left with people," he said.

This statement does not preclude the proposal of a second ballot based on the two highest polling parties.

President in Deep Water?

Parliament sets up a constitutional commission in mid-May; in late May the new version of the Constitution is okayed by the Constitutional Court and gets preliminary approval from a simple majority in parliament; in September the document collects the required two-thirds of votes and goes into effect; preterm presidential, parliamentary, and local elections follow.

More and more politicians are calling this scenario quite realistic, considering a factual alliance of the two most powerful political forces – the Yulia Tymoshenko Bloc and the Regions Party. According to reliable and competent sources, their leaders have basically agreed upon the text of the new Constitution offered by Viktor Medvedchuk, ex-chief of Leonid Kuchma’s administration. There is another version: the text was written by a group of authors headed by MP Olexandr Zadorozhniy, the former presidential representative to the parliament, while Medvedchuk acts as an intermediary – a kind of communicator among Tymoshenko, Yanukovych, and the authors. The latter promptly make all corrections suggested by either leader, leaving fewer and fewer unsettled items. Well-informed sources are sure that the text will be finalized in early May.

These allegations are unconfirmed and representatives of both forces flatly deny the very fact of active contacts between the two formal antagonists.

The National Constitutional Council [set up by President Yushchenko] was due to present a “concept” of the new Constitution on Wednesday, but the presentation never took place. The official explanation – Parliament Speaker Arseniy Yatsenyuk’s “illness” – looks too awkward. Events of such a scale are never canceled for the absence of one person. Most probably, Yushchenko and Yatsenyuk must have refused to attend the presentation because Tymoshenko’s and Yanukovych’s demonstrative refusal to attend reduced its scale to an ordinary news conference.

It may as well have been Yushchenko’s demarche, but it is more reasonable to presume that he simply did not know how to behave. When he was setting the date of the pompous presentation, the political circumstances were different: the Constitutional Court had not yet passed its verdict, prohibiting him to change the Constitution through a national referendum instead of the parliament; Tymoshenko and Yanukovych were not yet so unanimous on the contents and mechanisms of adopting the new Constitution.

Besides, Yushchenko’s pause provoked Tymoshenko to act. Bankova [a street in downtown Kyiv, seat of the Presidential Secretariat – A.B.] waited, believing that the one who would make the first move would get into the losing position as the kindler of a new political war in the public eye. Tymoshenko understood this and did not want to pose as the initiator of the parliamentary commission. She must have planned the following scenario.

Step 1: the first move would be made by the People’s Self-Defense – the wing of the pro-presidential bloc disposed critically to Bankova.

Step 2: the Tymoshenko Bloc would support the ally’s “rational initiative.”

Step 3: the Regions Party would join the project as co-authors.

Step 4: the Communists and the Lytvyn Bloc would join the project at the final stage. That would look very democratic.

Tymoshenko tried to stir up Lutsenko and his team several weeks ago, but they were reluctant. Some of them supported her idea of making Ukraine a parliamentary republic but hated to pull chestnuts out of the fire for Tymoshenko (let alone Yanukovych and Medvedchuk). Other members of the PSD were more pragmatic but had their own reasons. They were definitely against Yushchenko’s attempt to change the Constitution bypassing the parliament and the very idea of direct presidential rule in the country. Seeing that threat, they were even ready to take part in the parliamentary commission’s work but by no means to initiate it. When the cloud passed over, they wondered why they should play stunts in someone else’s game with vague goals and slim chances.

Sources with the Tymoshenko Bloc confirm that she means to use the fortnight’s pause in the parliament’s work for “individual work on members of the allied faction” in order to persuade them to join the parliamentary commission (which she plans to set up on May 14).

What trump cards does she have? Seeing Yushchenko’s grim political future, she may try to win over some of “the king’s men.” After all, many of them would gladly “sell their souls” for a guaranteed pass to the parliament in the next election or for promotion to higher executive posts.

Bankova may play into her hands as well. Prosecutor General Olexandr Medvedko’s recent statement (which reconfirmed the version of “premeditated poisoning” of Yushchenko in 2004) was not just his banal wish to make an appearance and put himself make himself known. Bankova may be planning to initiate a lawsuit against one MP (a PSD member) allegedly involved in the poisoning case. After more than a hundred hours of “conversations” with investigators, that person ignored prosecutors’ summons. This circumstance may serve as a formal pretext for the Prosecutor General to petition the parliament for stripping that MP of immunity and the parliament is obliged to put this issue to vote. Then Yushchenko would demand, “Now, guys, who are you with – the hero of the Orange Revolution or the man involved in his poisoning?” With one of its most influential members “on the hook,” the PSD would stop behaving so high-handedly and keep away from the parliamentary commission. Tymoshenko counts on a negative reaction. Time will show whose plan is more feasible, but so far there is no serious proof of the petition being prepared. If Bankova does mean to start a war by such a move, Tymoshenko should be on alert, because that MP is her main communicator with the PSD.

They say Tymoshenko is not afraid of a war, knowing that it is inevitable and that she will win. They say Yushchenko’s recent irate utterances about the commission and the idea of a parliamentary republic only spurred her on. Several members of her faction immediately confirmed their intention to set up the commission right after the holiday break – regardless of the allied faction’s position and in defiance of Bankova’s pressure.

According to sources involved in the negotiating process between the RP and the TB, the sides are expected to reach full consensus in the next few days. Their penmen rewrite the text every day with corrections proposed by either side, but several serious contradictions still remain unresolved.

The two political forces are unanimous that Ukraine must be a parliamentary republic with the president retaining representative functions. In a parliamentary republic the president is elected by the parliament, but neither the RP nor the TB takes the risk of abolishing the direct national vote – they are unsure about the electorate and are not ready yet to go against the grain of public sentiments.

They are both for “relieving” the president of executive functions and depriving him of the right to appoint and dismiss ministers, governors, local executive chiefs, etc. He is only supposed to retain the right to initiate legal acts, the right of suspensive veto, and the right to dissolve the parliament. The latter right, however, is rather limited as the president may dissolve the parliament in strictly determined cases and by a rigid procedure. Besides, the authors draw a dividing line between the cases in which the president “may” and “must” dissolve the parliament.

There was a proposal to liquidate the National Security and Defense Council, but finally the authors decided to leave that body intact, delimitating its competences and functions and allowing it to convene only in national-scale emergencies.

There are quite a few differences between the RP and the TB. The draft version of the new Constitution provides for the partisan election model with a norm binding individual candidates to their respective administrative regions. Neither leader likes the idea: firstly, closed candidate rolls make party members more dependent on their leader; secondly, they make it easier to replenish the party’s budget. For the same reason both leaders easily agreed to introduce the so-called “imperative mandate” – the norm prohibiting MPs to desert the faction of the party which earned them their mandates. However, neither the RP nor the TB has said “no” yet – they have a couple of days to think it over and discuss the possibility of applying a similar election mechanism to local elections.

The two forces differ on the election technology. The initial idea was to set a one-percent threshold for political parties and blocs running for parliament in general two-round elections. Two winning parties or blocs would compete in the second round. Thus, the winning party would get at least 226 seats in parliament – the simple majority – and 224 seats would be distributed among the rest proportionally to their results in the first round. This approach satisfied both the TB and the RP, but the latter demanded a ten-percent threshold. So far they have agreed on four percent, but impartial observers warn that this politically diverse country may thus receive a bipartisan system.

The draft version has other interesting innovations. Should one political force collect enough votes to get at least 226 seats, the second round would not be held. The winning party or bloc would appoint its leader Prime Minister, and if the leader refused to head the government for some reason, it would choose another candidature.

The President would stay “outdoors,” deprived of the right to nominate or endorse any candidature for premiership or any ministerial post. The choice of ministers and their deputies would be the Premier’s prerogative. District administrations would be liquidated and executive functions would be vested in local executive committees staffed by respective local councils. Regional administrations would be transformed into prefectures staffed by the Cabinet. They would coordinate and monitor actions of central and local authorities and control observance of laws. They would also have the right to challenge and suspend decisions made by local authorities.

The Prosecutor General would be appointed by the parliament upon nomination by at least 150 MPs. This measure is supposed to make him more independent. The Prosecutor General Office would no longer have the function of general supervision but would conduct prejudicial investigations. So would the Interior Ministry, the Security Service, the State Customs Committee, the Chamber of Accounts, and the parliament’s ad hoc investigating commissions. The idea is to leave no pretexts for different law enforcement bodies to accuse one another of unfounded (or ordered) institution or closure of legal proceedings.

There is also a far-reaching plan to reorganize the judicial system. It is supposed to be a pyramid with local courts as the foundation (their judges would be elected), appellate courts at the higher level, and the High Court (divided into the civil, criminal, administrative, and economic boards) at the top. The higher the level, the higher the requirements for candidate judges – from education background to service record. Judges would be appointed, controlled, and dismissed by special qualification commissions. Their members should hold degrees in law, have substantial experience and authority, occupy responsible positions in various sectors and fields, and have the wish to be impartial arbiters.

Their names and other personal data would be on a special database. In case a judge of an appellate court, the High Court, or the Constitutional Court has to be appointed, a commission would be set up. Its members, chosen by sortition, would consider candidate’s qualifications and select a certain number of those who meet the requirements. Then a judge would be chosen, and again by sortition. The same method would apply to dismissals (which may not be challenged in other courts).

The authors of this original idea are convinced that this way it is possible to overcome (or at least reduce) corruption in Ukrainian courts. However, they can hardly answer a serious question: are there enough authoritative and independent professionals in this country?

Interestingly, they are not going to change anything in Sections I, III and XIII of the Constitution of Ukraine since it is necessary to submit the text of these amendments to a referendum, and that is not what the authors of the draft plan to do. However, they propose changing Sections IV and V with amendments that directly refer to Section III. They also intend to change the Constitution by passing a number of laws, direct references to which would be included in the Constitution.

It is hard to asses the prospects of the new draft. On the one hand, Tymoshenko is ready to play the reform-game. On the other hand, she is thinking about early parliamentary elections which would gradually turn into the next presidential elections. They say that 156 deputies are ready to resign after her order. However, no one can guarantee Tymoshenko that she would get the majority in the future Rada and win the presidential elections.

The Regions are thinking too. Yanukovych supports the idea of reforming the Constitution and parliamentarism. Akhmetov is against this idea. It looks like some Regions members are still hoping that the present coalition will break up and a new broad coalition will be created. However, the number of those that believe in this is decreasing. The leaders of the Party of Regions are not sure that Yushchenko is able to control the situation in both the country and his own faction. Additionally, many close to Yanukovych assure him that a considerable part of his electorate won’t excuse his allying with Orange.

Yushchenko is also lost in meditation. He is short on time. He has several options today. The most obvious of them is to dissolve the Rada or to dissolve the Constitutional Court. There is no legal ground for dissolving both the Verkhovna Rada and the Constitutional Court. However, when did such trivial details stop anybody? The result is what is important. No Rada – no constitutional committee. No Constitutional Court – no conclusions on the new draft version of the Constitution.

Nevertheless, he should think about the consequences. If he dissolves the Rada then he will be letting a genie out of a bottle. If he dissolves the Constitutional Court, he may set at least half of the Our Ukraine-People Self-defense Block against him.

Yushchenko is not ready to agree to an honorable post of parliamentary president yet. Tymoshenko showed her readiness to prolong his term as president without any elections under the condition of substantial reduction of his authority, but Yushchenko perceived this offer as an insult.

However, the leadership of BYuT and the Party of Regions think that Viktor Andriyovych will have to accept this offer soon. What his opinion on this matter is, we will find out in several weeks

1 Comment:

Anonymous said...

This article highlight many positive initiatives but there are also some points that are alarming.

The proposal to push ahead and support the adoption of a full parliamentary model in line with the European nations. is worthy of support.

My main concern is the electoral system and the proposed model of representation. The electoral system provides the plan layout and foundations of democracy. It is fundamental that the system adopted seeks to maximise and represents Ukraine.

The proposal of adopting a nation wide party list system with an increased quote of 10% will seriously disenfranchise a large percentage of the Ukrainian electorate. This needs serious review.


There is merit in implementing an open-list system as opposed to a close party list ballot.

The preferred model depends very much on the question does Ukraine adopt a bicameral (two house) Parliament or maintains a single house.

Single House Option

It would be appropriate to establish local electorates with each electorate returning nine members of parliament on a 10% quota.

The method of election should be quota preferential proportional representation (Single Transferable Vote).

This would facilitate accountability reflecting the diversity of the electorate. The determination who is elected is decided by the voters and not the just the party list.

Smaller based electorates provide a means of locally managed campaigns reducing the overall costs of campaigning. (I have undertaken a preliminary analysis of the outcome of such a system and can provide copies should this option be considered seriously).

Two house option

If a two house option is to be considered (not recommended) then Ukraine should consider adopting a system where lower house candidates are elected on the basis of single member electorates (300) elected by a system of preferential voting on a quota of 50% with an upper-house elected on the basis of multi-member electorates. (17 electorates - 153 members each electorate returning nine members of parliament elected on a 10% quota by a system of preferential proportional representation)

Each electorate MUST be equal +/- 10% in number and must be equal in the number of representatives elected per electorate.

Ideally the number elected per electorate is of an odd number so as to ensure that a majority of voters elect a majority of representatives.

Whilst it is expedient in maintaining a direct election of head of state under a parliamentary model it would be preferable and less costly to have the head of state appointed by constitutional majority of the people's democratically elected parliament.

In the event that a direct election of head of state is required then the method of election should be via a single round preferential voting system (See )

A Two round system is unnecessary and cumbersome as the same result can be achieved by a preferential voting system thus avoiding the need for a second round ballot.

The creation of smaller local electorates would make the conduct of a preferential ballot more manageable. The results of the election would be determined within 1 to 2 weeks even quicker with computer based technology.

In most cases the results of the election would be known on election night within 24 hours. By eliminating the need for a second round ballot the costs are significantly reduced and possible political tension between the two ballots would be avoided. A preferential ballot system also limited the possibility for fraud and provides a means of improved detection and identification of any fraudulent activity.