Shortly before June 28, Constitution Day, Maryna Stavniychuk, Secretary of the Constitutional Assembly, announced that the latter had finalized the agreement of draft amendments to the Constitution, which would reform the system of governance in Ukraine. They entail the weakening of the president and reinforcement of parliament and the Cabinet of Ministers. If adopted, the Verkhovna Rada will appoint and dismiss the Cabinet based on the president’s recommendations. The same procedure will be used for the Prosecutor General, SBU chiefs, Antimonopoly Committee, State Property Fund and the National Bank of Ukraine. The president will retain the right to appoint and dismiss judges and dissolve parliament if the latter fails to provide a quorum to appoint the Cabinet. These aspects make the draft amendments similar to the Law on Amendments to the Constitution of Ukraine No 2222 dated December 8, 2004, enacted from 2006 through 2010, better known as the political reform, and the draft law to amend the Constitution developed by the National Constitutional Council under Viktor Yushchenko. In addition to the redistribution of power, the new draft amendments proposed by the Constitutional Assembly entail the “improvement of direct democratic procedures” through the introduction of public legislative initiative and public veto. Another component to the improvement would be to make decisions passed in national referendums mandatory, not requiring any approval from other government bodies or officials.
At first glance, the amendments suggest that their authors prefer the European political system. This is obviously necessary to gain positive – or moderate – reaction from the West, including the Venice Commission to the constitutional amendments. However, the fact that the model of governance set forth in the Constitutional Assembly’s draft amendments is completely out of character for the Donetsk elites gives rise to suspicion. Given the experience of the past three years, including that in legislation, they have been re-designing the political system following the pattern of authoritarian regimes. However, everything falls into place when one considers that, firstly, Yanukovych retains his right to revise draft amendments. Leonid Kravchuk, the first president of the independent Ukraine and Chairman of the Constitutional Assembly, once commented that he could guarantee the quality of the document but couldn’t say how it would look once it leaves the Presidential Administration. Secondly, the desire to “democratize” the political system may well be dictated by cold political calculation, should the Yanukovych team lose the 2015 election. The amendments proposed by the Constitutional Assembly will be “put up for national discussion”, which will last until September 1 in an as yet unknown format. Then, according to Yuriy Miroshnychenko, the president’s representative in parliament, finishing touches will be made to the draft. It will take nearly a year to prepare the text; through late 2014 or early 2015. Thus, the changes are likely to take the current political situation from the perspective of Viktor Yanukovych’s personal potential position into account rather than Ukraine’s strategic interests. This follows the “if I can’t have it, neither can anyone else” principle, when considering the vast powers that the current president gained as a result of the 2010-2011 amendments to the Constitution.
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The current Constitutional Assembly has a similar status to the National Constitutional Council established by Viktor Yushchenko in 2007. Maryna Stavniychuk was then Deputy Chief of Staff for President Yushchenko and contributed significantly to the National Constitutional Council, as she does now to the Constitutional Assembly. Back then, the National Constitutional Council drafted a new Constitution that was supposed to introduce a parliamentary system. When the current regime came to power in 2010, it did not find this change beneficial to it and abolished the National Constitutional Council, embarking on changing the Constitution the way it saw fit, i.e. aiming to reinforce the role of the president. Two years later, Yanukovych essentially revived the National Constitutional Council in the form of the Constitutional Assembly. He clearly expected it to become an effective tool to legitimize the regime’s political initiatives in the eyes of the Western community, or in the eyes of local voters. The fact that the Venice Commission welcomed the Assembly and called on the Ukrainian opposition to engage in it is notable.
However, the passing of the anti-constitutional Law on the all-Ukrainian Referendum in November 2012 crystallized the role of the Assembly as a tool to legitimize the new version of the Constitution as a document drafted by “authoritative experts” rather than the Presidential Administration through a referendum. On June 19, the Venice Commission promulgated its opinion on the new law stating that it carried a high risk of the usurpation of power and “could result in the politically motivated manipulation of the referendum, notably, in changing the Constitution”. Thus, the Venice Commission considered that the possibility of amendments to the Constitution which bypass parliament is unconstitutional. Meanwhile, Oleksandr Yefremov, Head of the Party of Regions faction in parliament, stated that “MPs will take decisions in the session hall as they see fit”, essentially making it clear that the Venice Commission’s opinion did not please those in power much, and that changes are being planned to the constitutional order of the state to conform to the interests of the ruling regime through national referendums.
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If the current regime realizes that an opposition candidate will inevitably win the 2015 presidential election (despite all of the Party of Regions’ administrative leverage, election rigging and other tools), it is likely to implement operation “Premier Yanukovych” by once again amending the Constitution to restrict the president’s powers while extending the premier’s authority. Under the new system of power that has been further elaborated by the version of the Constitution drafted by the Constitutional Assembly and “finalized” by the Presidential Administration, Yanukovych as premier could end up with the power of the key person in the state. Vladimir Putin did this in 2008-2012. Moreover, this scenario has been used in post-Soviet states and largely tested in 2006-2010 in Ukraine when the 2004 political reform was in force. Mikheil Saakashvili’s team tried to enact a similar scenario in Georgia. Since one person could not be elected president for three consecutive terms under the Constitution, Saakashvili’s circle tried to push through the Law on Amendments to the Constitution of Georgia whereby the centre of executive power in the state shifted from president to prime minister, restricting the president’s powers while expanding those of the prime minister and parliament. This scenario failed when Saakashvili’s party lost the parliamentary election: his team needed a parliamentary majority to pass the law.
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If the Yanukovych regime tries to implement this scenario, it has to hold an early first-past-the-post parliamentary election before 2015. Embarking on this risky political undertaking with the shaky majority it now has in parliament would not be wise. For the Premier Yanukovych project to succeed, the parliamentary majority must be very disciplined, dependent on the leader, and made up of at least 270-280 MPs of the current 450.
This scenario may be implemented either independently, or with the weakening of the central executive branch and the transfer of power from local state administrations to executive bodies of local governments.
Of course, a new president could try to overturn amendments to the Constitution, as Yanukovych has already done. But will anyone from the current opposition risk taking this step – anti-European in its essence – should they win the 2015 presidential race?
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