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1 July, 2016  ▪  Oleksandr Kramar

The fine art of compromise

Although his powers are president of Ukraine are quite limited, over the last two years Petro Poroshenko has learned to use them like a virtuoso, allowing him considerable influence over the legislature and Government

After the mini blitzkrieg that resulted in Yuriy Lutsenko being named Prosecutor General showed just how much power the President has over the Verkhovna Rada, fears have grown that Petro Poroshenko was beginning to usurp power. Some quarters have even begun to compare him to Viktor Yanukovych.

Before his second anniversary had come around, Poroshenko really was able to break the resistance of Arseniy Yatseniuk and to reshuffle the Cabinet, eliminate his dependence on a recalcitrant minority from the previous coalition, and demonstrate his ability to persuade the legislature to support those decisions he needed, such as the vote on the new PG. In fact, what happened was only the result of shifting situational deals that took place in a more favorable Rada environment after the first coalition fell apart.

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In his platform during the presidential campaign in 2014, Poroshenko promised voters that he would, among others, “guarantee the preservation of the recently-renewed parliamentary-presidential model of government...” and that he would “not try to gain greater powers than those for which I am elected.” In April 2015, when he launched the Constitutional commission, he once again assured Ukrainians that “the move to a parliamentary-presidential model of government is and remains a reliable guarantee of Ukraine’s European, democratic development.... As President, I have more than enough powers to carry out my job.” And he repeated this when he presented the constitutional changes ushering in decentralization to the Verkhovna Rada as well: “I have enough powers. I call on politicians not to anger Ukrainian society but to learn the fine art of compromise.”

It’s worth noting that, so far, Poroshenko has kept his promises, placing his bets not on expanding his own formal powers but on finding alternate, indirect leverage on other government agencies.

Powers on paper

During the Euromaidan Revolution, Ukraine returned to the parliamentary-presidential model of government, which restricts the powers of the president to foreign policy and national security, and to function as a check and balance against the other branches of government.

In the current version of the Constitution, Art. 106 states that the President is the Commander-in-Chief, that he appoints and dismisses the higher command of the Armed Forces of Ukraine and other military formations, that he heads the National Security Council, that he represents the state in international relations, that he directs foreign policy activities, negotiates and signs international agreements, that he determines whether or not to recognize other countries, that he appoints and dismisses the heads of diplomatic missions, and that he approves decisions to grant or withdraw Ukrainian citizenship, and to grant asylum in Ukraine. In addition to this, he exercises clemency, confers national awards, appoints and dismisses one third of the Constitutional Court, half the board of the National Bank of Ukraine, and half the board of the National Broadcasting Council, and establishes courts according to the procedure established in the law passed by the Verkhovna Rada.

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In all other matters, the Head of State depends on the Verkhovna Rada and the Government. Even the ministers of defense and foreign affairs, heading the agencies that are responsible for policy in his two constitutional spheres of direct power, the President’s nominee must have the support of the legislature. The same is true of the Prosecutor General, the head of the Security Bureau of Ukraine, and the National Bank. The Head of State also declares states of emergency, which also requires the approval of the legislature. He also determines to declare a partial or full mobilization and a state of war, but only in line with legislation that is passed by the Rada.

At the same time, the Verkhovna Rada may declare non-confidence in the Prosecutor General, which automatically results in that person’s dismissal. Where the President initially appoints judges for a five-year term, subsequent lifetime appointments are approved by the legislature.

Any constitutional changes are also completely in the hands of National Deputies and the President’s only option here is to exercise informal influence over members of the legislature, because at least 301 deputies must approve any amendments to the Basic Law. In the current Rada, this means nearly 3/4 of the actual sitting deputies, not 2/3, because for a variety of reasons there are only 418 seats filled today, rather than 450.

The President has the right to dissolve the Verkhovna Rada and to call snap elections, but only if the legislature itself provides the necessary conditions: if it is unable to form a coalition and Government within a specific timeframe. The President presents a candidate for Premier to the legislature, but this can only be someone whom the factions in the ruling coalition nominate. The President can also refuse to sign bills into law after the Rada has passed them and to veto them, but both these decisions can be overruled by a vote of 301 deputies to do so. The President also has the right to curtail any acts issued by the Government, but only if they are in violation of the Constitution and only until such time as the Constitutional Court of Ukraine issues a final ruling.

By contrast, in many instances, the President is not just dependent on the legislature but on the Cabinet as well. For instance, presidential decrees that affect certain spheres need the signature of the Premier or the line Minister.

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Although local state administrations are the sphere of influence of the Head of State, the Constitution states that their bosses are appointed and dismissed by the Cabinet of Ministers. Moreover, their decisions can only be overruled by the President if they are in violation of the Constitution or other laws. Finally, the Constitution states that the heads of local state administrations depend even more on local councils than on the President: if 2/3 of the deputies on these councils declare non-confidence in the head of any local administration, the President must dismiss that individual, regardless of personal preferences.

Influence as a numbers game

Despite these formal limitations on his powers, in the last two years President Poroshenko has displayed enormous virtuosity in his ability to effectively use those powers that he does have over the Rada and Cabinet. This multiplied his options severalfold and had brought virtually all the branches of government under his effective control—other than perhaps the judiciary. Despite what the opposition has been saying, the judiciary remains a closed corporation of judges who serve the interests of those who might “interest” its individual members. The President still has no whip over them. His formal influence over the Supreme Council of Justice, which has real influence over the body of judges, is very limited, as he appoints less than half of its members.

The key trump in President Poroshenko’s hand is that, unlike the first three presidents of Ukraine—his predecessor being the other exception—, he has his own substantial faction in the Verkhovna Rada, whose size, at 143 deputies, is nearly 1/3 of a Constitutional majority, but in actual fact even more because 32 seats remain empty in the legislature. This means, in effect, that no bill passed in the Verkhovna Rada will become law if Poroshenko is against it: there simply won’t be enough votes to overrule his constitutional right to veto, even if all the other deputies except for the Bloc of Petro Poroshenko (BPP) vote unanimously in favor. This also means that no workable coalition can be cobbled together and form a Government today—without the support of the President.

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The only other president in modern-day Ukraine who had this powerful a presence in the Rada was Viktor Yanukovych, Poroshenko’s predecessor. Neither Viktor Yushchenko nor Leonid Kuchma prior to 2002 had anything closely resembling this, which forced them into situational alliances and cooperation with rivals who had the support of the majority in the legislature at one point or another. Even after 2002, when he had far broader constitutional powers than Poroshenko today, President Kuchma had to share power with Premier Yanukovych and his Donetsk team in order to gain a majority in the Rada.

The formation of a Government under Poroshenko ally Volodymyr Groisman is the clearest demonstration of the President’s influence in the legislature. This makes the President the most influential player in the camp that prefers to maintain stability and the current composition of the Rada. Even when Arseniy Yatseniuk headed the Government, he was not playing at Poroshenko’s level in this camp, and since his dismissal, he has been rapidly losing position. If the leaders of his Narodniy Front wanted to dissolve the legislature now, such a move would be unlikely to gain support from a majority even of its own faction because the Front’s prospects are so uncertain today.

Déjà-vu all over again?

The situation in the “mature Poroshenko” legislature, meaning as of spring 2016, looks very similar to the situation in the “early Yanukovych” Verkhovna Rada in 2010-2012. The majority of deputies then, too, were doing everything they could to avoid a snap election and so they demonstrated amazing “constructiveness.” And until a critical mass of today’s lawmakers finds an alternative leader, the chances of the opposition forcing a dissolution of this Rada are marginal. All the more so, because the socio-economic situation in Ukraine is expected to improve, however gradually, in the next while.

In the meantime, for Poroshenko too, whose influence is based mostly not on the powers of the Head of State but on a powerful position in the legislature, the chances of increasing his numbers in the Rada at the next election are negative. This means that everything is currently working to keep the current convocation of the Verkhovna Rada for its full term and that means it will support the President.

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Given that the legislature and Government cannot function without his support, Petro Poroshenko can now extend his influence to other government agencies as well. Under these new circumstances, there is no basis for a battle over local government control, for confrontation between the Government, Rada and President, or for using this situation in the interests of outside players.

This vicious cycle, in turn, increases the opportunities for the Head of State to influence every government agency in the land, because he can simultaneously make use of the potential provided by all the others to curb any individual agency. In the current interlinked mechanism of power, the President himself, despite his minimal formal constitutional powers, is the key link, without which the functioning of the entire system becomes impossible. What’s more, that very fact that his influence on nearly all branches of power is informal provides the President with a very convenient out from real accountability: he can always claim that his own powers are highly limited and shift any blame to the Government or the Verkhovna Rada.

Consolidation vs usurpation

Still, unlike Yanukovych, Poroshenko cannot be accused of trying to usurp power. So far. To control the situation in the country, he has not resorted to altering the Constitution by stealth in order to grab the powers of others, but is consolidating power within the limits of the existing parliamentary-presidential model. In short, this is a necessary process of concentrating powers in order to progress along his lines without disruption. And if his approach is upsetting, the problem is not with concentrating powers but with the platform, the politicians and the parties that Ukrainians voted for at the last elections to reach certain goals. After the current terms end, voters can change all of these for others.

After all, it’s far worse when a government is unable to carry out any systemic policies during the course of its constitutional term because of internecine warfare. This is exactly what went wrong over 2005-2009 under President Yushchenko, when Yulia Tymoshenko and Viktor Yanukovych were his disputatious premiers, and, to a much lesser extent, when Arseniy Yatseniuk was premier under Poroshenko.

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This problem, incidentally, is hardly typical for just Ukraine. It can be seen in all representative democracies, such as when the US President fails to find support in a Congress that is dominated by his opponents and has a hard time carrying out his platform. Even there, decisive changes are possible only when the Head of State enjoys a loyal majority in the legislature.

Yes, such a consolidation of power can at times transform into a usurpation of power, but only if the mechanisms of democratic transfer of power are blocked. Efforts by the opposition to complicate the work of a “president-centric” government in a parliamentary-presidential republic come across, not so much as “preventing usurpation” but as simply the typical political struggle to accelerate a change of government.

Translated by Lidia Wolanskyj

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