Back from the brink in Ukraine?

Constitutional reforms are needed for a lasting solution in Ukraine.

Strengthening the powers of the parliament might be a long-term solution to the crisis in Ukraine, writes the author [EPA]

On January 28, Ukraine stepped from the brink of a disaster, at least temporarily. The national parliament met for an extraordinary session and cancelled the package of anti-democratic laws it adopted with massive procedural irregularities on January 16. Popular outrage at these laws galvanised protests, turned them violent, and threatened geographic breakup of Ukraine.Protesters in western and some central regions took over government buildings and vowed to recognise the People’s Council – a de-facto parallel government proclaimed by protest leaders on January 19 – and not the authority of the government of President Viktor Yanukovych.

Prime Minister Mykola Azrov, particularly despised by protesters, also stepped down on the same day and the president accepted his resignation. Negotiations are still underway both on the terms of amnesty for arrested protesters (dozens have been detained since protests turned violent on January 19), and on possible changes to the constitution to reduce presidential powers. The parliament has also extended its extraordinary session to continue the search for a political solution out of the current crisis.

Threatening democracy

These steps are a welcome diffusion of the crisis that threatened the very existence of Ukraine as a state. They also indicate that the government may be finally ready to take the protesters seriously and acknowledge the depths of popular discontent with Yanukovych’s autocratic and corrupt rule. Up until now, the authorities pretended to carry on with business as usual while insisting that the protesters are a minority of radicals, while life in Ukraine outside of the Independence Square (the Maidan) continues as normal [Ua].

Ukraine scraps protest laws as PM steps down

Unfortunately to reach this point, it took two months of protests that paralysed the centre of the capital; street clashes never seen before in Ukraine; at least five protesters and two policemen dead; hundreds of people injured; dozens of journalists beaten by police, takeovers of government buildings across the country; and violence and torture unleashed on protesters and activists by the police and unidentified thugs-for-hire often working in tandem with police [Ua]. 

The situation remains fragile, but if a search for a  solution continues at the political level, the most important elements of a comprehensive solution would be constitutional reform reducing presidential powers. Since coming to power in free elections in February 2010, Yanukovych gradually rolled back Ukraine’s democratic process. The most significant blow to democratic power-sharing in Ukraine has been the procedurally dubious annulment by the Constitutional Court in September 2010 of the 2004 constitutional reform that established parliamentary-presidential system in Ukraine. 

The 2004 reform – itself adopted as a compromise to resolve the crisis following rigged 2004 presidential election and the “Orange Revolution” – created an imperfect balance of power between executive and legislative authorities. This in turn prevented any one party, business clan, or individual from usurping political power in the country.  By rolling back the reforms, Yanukovuch sought to monopolise control of Ukrainian politics. 

Super-presidency has been a successful strategy for consolidation and maintenance of political power for virtually all autocrats in the former Soviet space, including in Ukraine’s neighbouring Russia and Belarus. In Ukraine, however, historically-formed cultural divide between the north-west and the south-east of the country presents any president with latent, if not active, opposition in roughly half of the country. In this socio-political reality, only true power sharing at the top can give the governing elites lasting legitimacy nationwide.

The solution: A parliamentary system 

Ongoing negotiations include a possible return to the 2004 Constitution and the parliamentary-presidential system. The negotiators should consider the abolition of the post of presidency altogether and the establishment of a parliamentary form of government in Ukraine. This may be the best institutional solution for the long term for several reasons.

Inside Story – Deadlock in Ukraine

First, it avoids the dual executive model which, while more pluralistic than super-presidential system, can lead to conflict between similarly and independently powerful prime minister and president and generate political stalemate. This is exactly what happened in Ukraine during 2005-2010, when the country lived under parliamentary-presidential model. During that period, the government was virtually paralysed by perpetual conflict between then President Viktor Yushchenko and Prime Minister Yulia Tymoshenko.

Secondly, a move to parliamentary system would be a compromise by all political actors involved in the current conflict, and thus is more likely to be accepted since there will be no obvious winners and losers. All three leaders of the opposition – Vitaliy Klytchko, Arsenii Yatseniuk, and Oleh Tyahnybok have presidential ambitions – and so does President Yanukovych since he is nearing the end of his first term in office. The inability of the opposition leaders to agree on a single candidate to challenge Yanukovych caused much frustration among protesters. It also complicated possible defections by dissatisfied business elites from the Yanukovych camp, as there is no one who can credibly give guarantees to those who would contemplate defecting, and no clear camp for them to defect to. 

Getting rid of the post of the presidency altogether would be a compromise for the opposition leaders, demonstrating their willingness to give presidential ambitions for the long-term stability of the country. Parliamentary system itself would also ensure political survival of elites in the Yanukovych’s party since they will be virtually guaranteed seats in the future parliament based on stable electoral support the Party of Regions in the south and east of the country.

These political prospects may make them more willing not to back any further use of force or other steps favoured by “hawks” around president Yanukovych that would escalate tensions.

Thirdly, a move to parliamentary system could be face-saving for Yanukovych himself who, as a part of this compromise, could remain president for several more months, possibly till the end of his term a year from now. Keeping office but with reduced powers could be presented as an acceptable compromise to the protest movement which has been demanding the president’s ouster but does not have ways to force it.

For Yanukovych himself, staying in office for now provides time to negotiate terms of exit for himself and his family. Furthermore, as the head of the Party of Regions that maintains strong support in the east of the country, he and his party could come back to politics in parliamentary elections.

Yet another benefit of a parliamentary system is that it ensures that all parts of the Ukrainian society are represented in political power. Up until now the president would be elected by one or the other half of the country. Thus there was always the danger that the new president would be seen by the losing half as not representing them.

Ukraine’s regional divisions, which are destabilising in a presidential system, can prove to be stabilising in a parliamentary system. The geographic divide would ensure that in the parliament any majority will always be narrow and opposition strong. To prevent narrow majority from usurping political power – this danger exists in a purely parliamentary system – minority in the parliament should be legally given formal guarantees, for example control of some power ministries, of the institutions regulating the media, and seats in constitutional and other higher courts.

A move to a parliamentary system should come in combination with other important reforms. It is important to implement a judicial appointment system to end the total control of the courts by the president. There needs to be a new electoral code that would create political balance in election authorities at all levels and a new electoral law based on open list proportional representation.

Finally, political commitment by all key players is needed in order to work towards broad cultural and budgetary autonomy for Ukraine’s diverse regions. All this could not only be an acceptable compromise to end the current crisis, but a recipe for a democratic and peaceful future in Ukraine for years to come. 

Oxana Shevel is an Associate Professor of Political Science at Tufts University and an Associate at the Davis Centre for Russian and Eurasian Studies and the Ukrainian Research Institute at Harvard University. She is the author of Migration, Refugee Policy, and State Building in Postcommunist Europe(Cambridge 2011).