Wednesday, March 10, 2010

Troubling Signs in Ukraine As New President Flouts Constitution

By Tammy Lynch

On Tuesday, Ukraine’s parliament passed a blatantly unconstitutional law allowing its deputies to form a majority coalition and government made up of individuals without regard for parties or blocs. The move sends worrying signals about new President Viktor Yanukovych’s intention to honor the law and respect the nascent democracy he inherited. The law also allows for an increased level of political corruption in a country already drowning in it.

The new law, which passed with 235 of 450 votes, was immediately blasted by numerous political leaders. Acting Prime Minister Yulia Tymoshenko called the move an “undemocratic” attack against all of Ukraine.

Third-place presidential election finisher Serhiy Tyhypko (and Yanukovych’s former 2004 campaign manager), called the law an unconstitutional “political raid.” And he is correct. The new law, which amended the Law on the Regulation of Parliament, unabashedly contradicts Article 83 of the Constitution of Ukraine. This article clearly states that majority coalitions must be formed by “a coalition of parliamentary factions.” The just-passed law ignores that constitutional requirement.

Meanwhile, Tymoshenko and others have their own reason to be worried about Ukraine’s nascent democracy. The country’s recent democratic strides have developed partially thanks to Article 83, which was introduced in 2004 with the support of Western organizations, and created the basics of a European parliamentary system.

The system rests on parties and blocs. As such, individuals may not split from their parties/blocs to join majority coalitions. And they may not refuse to join a coalition if the majority of their bloc is in favor. They must remain within the party/list on which they were elected.

Moreover, only a parliamentary coalition of factions can nominate a prime minister, who then nominates a cabinet. The system is designed to discourage individual deputies from trading their support in return for financial or professional gain.

This vote trading was the norm in Ukraine prior to 2004, and while it still exists significantly on many individual votes, Article 83 (generally) has ensured that a majority is created based more on political, party and personal considerations than on financial needs. In essence, it’s much harder to buy or intimidate an entire bloc than it is to pick off individual deputies one by one from around the edges.

This means that, while Ukraine’s parliament is unquestionably as corrupt as ever, parliamentary control has not been consolidated in the hands of the politician with the richest allies, most ruthless “enforcers” or most powerful office. A leader cannot simply buy a coalition to do their bidding.

So, why did the new president decide to do an end-run around the constitution?

Prime Minister Tymoshenko’s majority coalition was dissolved on March 1. The constitution allows 30 days for the creation of a new coalition before new parliamentary elections can be triggered. Yanukovych faces the possibility of losing seats in any election.

But, perhaps more important for Yanukovych, one day after the majority dissolved, parliament voted no-confidence in Tymoshenko’s government. The now acting Premier immediately went on leave, as did most of her cabinet, leaving the country without the force responsible for domestic policy. In essence, nobody is minding the store. Yanukovych desperately needs a new coalition to name a new government.

“Desperate” may be the operative word. Clearly, even some of Yanukovych’s former allies view the law as a huge error.

Serhiy Tyhypko predicted serious losses for Yanukovych as the result of this move. “It’s amazing how stubbornly the team of Viktor Yanukovych is making the same mistake,” he said. “In 2007 they tried to create a constitutional majority by using political corruption and getting individual lawmakers involved. … this option… will cost the Regions Party more than the early election.”

And Western Media Failed to Notice

One of the biggest disappointments of the new law’s passage has been the utter confusion and misreporting by the Western, English-speaking media.

Several media outlets, for example, reported that Ukraine’s constitution had been amended to change Article 83. It wasn’t. Yanukovych and his allies simply ignored the constitution, while passing a law on regulations.

The BBC, meanwhile, suggested that the change would help usher in a new government, without mentioning the lack of constitutionality. In fact, the law could allow a new government. But, it will be a wholly illegitimate government formed in violation of the constitution. What better ammunition can be provided to opposition forces? That’s if, of course, the Constitutional Court doesn’t overturn the law.

The Epoch Times reported that the parliament had “tweaked the constitution.” This is entirely untrue, of course. The constitution itself was untouched because to amend it would take 300 votes – which Yanukovych does not have.

Even the usually reliable Reuters reported that lawmakers had “loosened rules on the formation of coalitions on Tuesday,” without a mention of the constitutional requirements of coalition formation. Instead the agency predicted the rules would “ease” Yanukovych’s attempts to form a new government.

True, this could happen. But at the same time, this move could spur a major court challenge and protest rallies, as the law helps unite the opposition against the new president. Tyhypko may be correct – the unlawful move may represent only a pyrrhic victory.

Regardless, any government formed now will be a government formed using pre-2004 tactics. Those tactics were far from democratic at that time and are far from democratic now.


  1. I would like to thank you for a great analysis of our coalition-battles, though I don't agree with all the statements. Meanwhile, Tigipko has agreed to become a Vice-Prime Minister in the future 'unconstitutional' government, despite of his own criticism.

  2. Outstanding analysis. As a non-Ukrainian speaker and a non-Russian speaker, I am in the position of relying on unreliable Western media. I am glad that there are those like you who monitor the failures of the media and correct them. I urge you to pitch an op-ed piece to the Wall Street Journal, New York Times, or Washington Post readers of large mainstream media outlets can read this cautionary message about trusting coverage of various places and events. It makes me wonder what other shoddy reporting we read without knowing better.

  3. Thanks very much Tetyana and Brian. It's unfortunate news that Tyhypko appears (although not confirmed, as far as I can tell) to have been enticed by one of Yanukovych's personnel incentives.

    It does feel as if Ukraine is stuck in a bit of a loop - Yanukovych in government, Tymoshenko the fiery, more radical opposition leader, with the position of Yushchenko perhaps now played by Yatsenyuk.

    Thanks for the suggestion, Brian. I'll give it some thought. And Tetyana, I really appreciate alternative analyses and opinions, even if I don't fully agree. Will be looking forward to your comments on your blog.


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