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30 May, 2012  ▪  Oleksandr Kramar

The Backup Plan

As the Presidential Administration begins to doubt its ability to stay in power after the parliamentary and later presidential elections, the current authorities are under pressure to pursue alternative scenarios, a key one being changes to the constitution

On 17 May, the Constitutional Assembly, which was initiated in early 2012, will be complete. Under a presidential decree, it will function as a special auxiliary body attached to the president and tasked with preparing amendments to the Constitution. The assembly will be headed by Leonid Kravchuk, who until recently was an ardent supporter of the repressed opposition leader Yulia Tymoshenko. Kravchuk will be the façade of a body that will be completely controlled by the Presidential Administration and will help present it as a kind of “council of politically uninvolved specialists and public figures”.  Kravchuk insists that the Constitutional Assembly will be guided by “the inherent interests of the Ukrainian people”.

However, the assembly is made up of people most of whom are either directly subordinate to the powers that be or who will be unable to resist pressure from the Presidential Administration. Maryna Stavniychuk, an advisor to Yanukovych and head of the Chief Directorate for Constitutional and Legal Modernisation of the Presidential Administration, has been appointed secretary of the assembly. Other members include representatives of the National Academy of Sciences, specialised academies and academic research institutions, other research and institutions of higher education, “relevant NGOs and independent expert analytical centres” but only those that “submitted their proposals to the president of Ukraine by 16 April 2012 according to the procedure established by the Concept of Forming and Organising the Activities of the Constitutional Assembly”.

Furthermore, Kravchuk envisions involving Viktor Medvedchuk, the odious chief of the presidential administration under former President Leonid Kuchma, in the process.

The assembly would have to include, by design, representatives of both pro-government and opposition political parties. But last winter the latter refused to co-opt their members to a body in which they would have a tiny representation (5-6 per cent). Kravchuk then said in public that he was very skeptical of this decision, suggesting that the assembly would manage even without them: “There are representation quotas for five parties. If they (representatives of the opposition parties. – Ed.) are not there, we will have 95 rather than 100 members. But this does not in the least mean that the Constitutional Assembly will not operate.”

Formally, he is right. The assembly will operate, but its activity will be perceived by the thinking public not as a certain civil and political national consensus but as another project to change the constitutional order to suit the needs of President Yanukovych. In the wake of juggling Constitutional Court decisions over the past two years, that will not come as a surprise to anyone. After the presidential decree to establish the assembly was published, sources in the opposition confirmed that they had no intention of delegating their members to a body with the pompous name “Constitutional Assembly”. The opposition interprets the assembly as an “unconstitutional body”, and makes use of every opportunity to stress that it is an internal service of the Presidential Administration. The opposition notes that the current Constitution can only be amended by the Verkhovna Rada, so such advisory assemblies would have to be attached to parliament.

Even though Kravchuk has assured that the assembly will merely prepare — and not pass — decisions on changing the constitutional order and thus will not replace the parliament in this function, it is quite likely that the Presidential Administration views it (as it did also under Leonid Kuchma and Viktor Yushchenko) as a mechanism for overcoming parliament’s monopoly on constitutional change. For example, by putting a draft new Constitution to vote at a referendum and making the parliament more pliable.

Previous experience, such as with the constitutional referendum organised by the Kuchma Administration in 2000, showed that provided several populist items are included and proper informational support is secured citizens will most certainly vote in support of the new Constitution “developed in the interests of the entire people”. Nothing will prevent the Presidential Administration from including several fundamental changes to this draft that will go unnoticed by the wide public. (Polls show that 80 per cent of citizens have never read the Constitution.)

However, the difference is that Kuchma did not have sufficient “political will” and was sensitive to international reaction dare  change the constitution in violation of due procedure. The current president of Ukraine has no such “scruples”.

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