EAU Newsletter “Current political situation in Ukraine”

The current political situation in Ukraine is featured by deep institutional crisis. The reasons of this crisis are in no way related to the consequences of “orange revolution” as some Ukrainian politics are trying to render. The instability of political processes in Ukraine results from implementing an unbalanced constitutional reform in the country. 

Changes to the Constitution of Ukraine were introduced on 8 December 2004 under emergency political conditions in the heat of the orange revolution and were a presentation of a situational political compromise.

The essence of the constitutional reform lied in redistributing powers between president, legislative and executive power branches. The form of government in Ukraine turned from presidential-parliamentary into parliamentary-presidential one. President lost a significant part of his powers which were transferred to the Verkhovna Rada of Ukraine and to the Government. This coupled with the introduction of proportional elective system which resulted in emergence of a new political reality in Ukraine.

After arranging the “anticrisis majority” the Parliament formed the coalition government, which immediately started a tough competition with the weakened president of Ukraine. In the present situation, the current Constitution doesn’t suggest any system of checks and balances for stabilizing Ukraine’s political system.

Faults of the existing political system of Ukraine are illustrated by the long-lasting problem with assigning the Minister of Foreign Affairs of Ukraine and the Head of Security Service.

In fact, now there is a unique situation when the president together with pro-presidential powers, who won in 2004, turned out to be a minority and for today they are opposing the Parliament and the Government.

Oppositional political powers of Ukraine lay their hopes for stabilization of the political system on the constitutional reform revision which should be performed by the Constitutional Court of Ukraine. Obviously, the revision and abolishment of the constitutional reform will lead to strengthening the President of Ukraine and loosing powers by the Parliament and the Government. In order to avoid this the Verkhovna Rada of Ukraine was illegally blocking the formation and operation of the Constitutional Court of Ukraine in 2005-2006. In August, 2006 the Verkhovna Rada of Ukraine adopted a law, forbidding the Constitutional Court of Ukraine to revise the constitutional reform.

At present the Constitutional Court of Ukraine has become the centre of political decisions, which will define the strategic perspective for Ukraine. Evidently, as early as in the nearest future a number of laws which determine political system in Ukraine as well as the constitutional reform itself will be revised by the Court.

In spite of some politicians’ statements that the constitutional reform has made the Constitution of Ukraine more democratic, the Public Committee for National Security of Ukraine is of a different opinion. Redistribution of powers in a closed state system doesn’t make the state more democratic in any way. Besides, there are all grounds to assert that the state power in Ukraine is not controlled by the society in any respect. The society does not have any instruments of influence onto the policy of other state agencies.

The recent story with the election of Human Rights Commissioner (ombudsman) at Verkhovna Rada of Ukraine can serve as a bright example of non-democratic political processes. This position was claimed by Nina Karpachova, who has held this office for many years, and Yevgeniy Zakharov, a leading Ukrainian human rights activist. Zakharov was recommended by NGO, he was supported by parliamentary factions “Nasha Ukraina” and “Yuliya Timoshenko’s Block”. The society has widely supported Zakharov and opposed Karpachova’s re-election. More than 400 leading public figures, politicians and NGOs all over Ukraine and abroad were calling to electing Zakharov to the position of Ukraine’s ombudsman. The Parliamentary Assembly of the Council of Europe representatives were declaring inadmissibility of Karpachova’s re-election, yet the Verkhovna Rada of Ukraine, in defiance of public opinion, elected Nina Karpachova to be the ombudsman.

The present situation in Ukraine demonstrated the necessity of a deep and long-term process of democratization of Ukraine’s political system. It is not only necessary to create the system of checks and balances between power branches, but also to create instruments of democratic influence on the state and of civil control. Neither proceeding with reforming the existing constitution, nor abolishment of the constitutional reform of 2004 will bring the desired result.

New possibilities for solving the political and constitutional crisis in Ukraine may emerge if an absolutely New Constitution of Ukraine is adopted.

The New Constitution of Ukraine should embody progressive legal and political ideas and be grounded on national traditions.

After Ukraine gained independence the Verkhovhna Rada of Ukraine developed a number of progressive projects for the Constitution of Ukraine, which were rejected at Leonid Kuchma’s coming to power in 1994. At present, attention should be paid to constitutional ideas of the beginning of the 90’s and to their implementation in the new Constitution of Ukraine.

For the first time the necessity of adopting an absolutely new Constitution was declared by the Public Committee for National Security of Ukraine in April, 2004. But only in 2006 the idea was perceived by wide political circles.

For today, President of Ukraine Victor Yushchenko has unambiguously stated expediency of developing a project of an absolutely new Constitution of Ukraine. In its turn the community has already begun working on preparing conceptual ideas for the new Constitution of Ukraine, which should:

- envisage extended guarantees of human and civil rights, instruments of their realization;

- formalize provisions on civil society and civil control;

- provisions on interconnection and cross liability of a citizen, civil society and the state;

- envisage instruments and possibilities of civil control of the state activity;

- ensure harmonious division of powers between legislative, executive and judicial branches of power.