Blog of the International Journal of Constitutional Law

Feeble Democracy in Ukraine

A classic episode of the American television comedy Seinfeld finds two of the characters, Kramer and Newman, on a subway car playing the board game RISK. Kramer taunts his opponent for his losing position to which the latter responds “I’m not beaten yet. I still have armies in the Ukraine.” The provocation continues as Kramer responds that “The Ukraine is weak. It’s feeble.” At which point a large and angry eavesdropper with a pronounced Slavic accent comes forth from elsewhere in the car bellowing “I come from Ukraine! You not say Ukraine weak! Ukraine is game to you!?“ The man attacks them and smashes their game board.

With this in mind I will refrain from questioning the Ukraine’s strength. As the largest nation in Eastern Europe save Russia, and possessing a standing army of 1.2 million people (14th in the world) the country is certainly not weak. What does seem increasingly feeble however is Ukrainian democracy which took a serious blow this week when the Constitutional Court, under pressure from President Viktor Yanukovych abolished the liberal 2004 Constitution which had granted checks and balances to executive authority in the wake of the Orange Revolution and replaced it with an earlier (and more executive-friendly) version.

The real story begins in 1996 (a year after the Seinfeld episode originally aired) when Ukraine adopted its first constitution since achieving independence. Up until then the government had functioned under a constitution known as the Fundamental Law, established in 1978 under the Ukrainian Soviet Socialist Republic, which relegated much national authority to the Kremlin. That constitution had already been amended several times as communism began to weaken, and again when the country broke away from the Soviet Union in 1991. Yet five years later it was deemed necessary by the post-independence government to put in place a constitution unsullied by the legacy of the USSR.

Although the new government structure under the 1996 Constitution did go a long way towards asserting the nation’s newfound independence, it inherited from its predecessor a very strong executive function which led to numerous abuses and very high perceived corruption under then president Leonid Kuchma. One of these incidents involved the publication of audio recordings which implicated Kuchma in the kidnapping and decapitation of an opposition journalist, as a result of which he is rumored to have agreed to step down in 2004 in exchange for immunity from prosecution. His handpicked successor, and former Prime Minister, Yanukovych was announced as having won the election to succeed Kuchma by the Ukranian Central Election Committee. Yet the results of that election were challenged by his opponent Viktor Yushchenko who was backed by numerous international observers, this precipitated the peaceful social unrest which became the Orange Revolution.

As might be expected from a country bordering Russia to the east and the European Union to the west, Ukraine has always suffered a bit of an identity crisis. The Western part of the country identifies strongly with Europe and has always viewed Moscow with great suspicion, while in the Eastern regions this dynamic is reversed. This imbalance asserted itself both when Yushchenko, the liberal pro-Western candidate was installed after the Orange Revolution, and when (following four uninspired and unpopular years of his rule) he was defeated by his old foe Yanukovych who promised to return order and strengthen ties with Russia.

This new ruling by the Constitutional Court represents the death knell of the Orange Revolution which led to important constitutional improvements that moved Ukraine away from the type of empowered presidential system common in Warsaw Pact countries (and to a lesser extent in the United States) and towards a Western European style parliamentary democracy. Legislators were granted longer terms, the authority to appoint and dismiss key government positions such as ministers (including the PM) and directors and could override presidential authority in most cases. Opponents complained that the new governmental structure was not well organized, with redundant authorities lending themselves to the inaction and political polarization which marked Yushchenko’s tenure as president. There is some truth to these claims. The 2004 Constitution was a rush job, thrown together in the euphoria following the Orange Revolution and seeking to legitimize the results of the election crisis. It is likely that balancing amendments would have been necessary to streamline governmental procedures and make institutions more responsive.

The return to the 1996 Constitution however, is at best a classic overcorrection and at worst a downright coup by Yanukovych. The reinstated document returns to the presidency a veritable carte blanche for restructuring, dismissing and appointing government positions without legislative consent (requiring parliamentary approval only for a prime ministerial appointment.) Furthermore the empowered executive can strike down parliamentary initiatives it disagrees with in embryo or veto them at will during the legislative process.

It is unfortunate that the events of 2004 have now come full circle and that the Ukrainian people have been robbed of victories which in retrospect may have cost them too much.

~ Daniel Lansberg-Rodriguez

For an English version of the reinstated constitution:


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