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Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

Stephan de Spiegeleire. Director Defence Transformation у The Hague Center for Strategic Studies

Ukraine needs to design new rules of the game
24 February, 2014 - 18:18

Current discussions about Ukraine often miss one crucially important point. One of the main reasons why the country is in such turmoil is because the entire political system is profoundly dysfunctional. The country - like so many other countries - is shot through with various societal cleavages. But the difference with these other countries is that in Ukraine these fractures can not be adequately mediated by the current political setup. That is why we keep seeing these seemingly unbreakable cycles of radical political alternance (Kuchma-Maydan-Yushchenko-Yanukovych-Maydan-the current opposition leaders)  punctuated by ever more violent eruptions of popular dissatisfaction. If we want to break out of this infernal - and ever more lethal - vicious circle, the country will have to spend some time redesigning more sustainable rules of the game. There has been (and continues to be) too much constitutional amateurism in Ukraine. The lives that have been sacrificed demand a more sustainable and effective institutional setup that is more likely to save than to take lives.

At this particular juncture in time, the political center of gravity has decisively shifted to the Ukrainian Parliament (the Rada). The Rada - in sharp contrast to the executive branch of government (or to most post-Soviet parliaments) in Ukraine - has remained a vibrant (even if often just querulous and irrelevant) forum for open political debate. But unfortunately the Rada reflects the country's aberrant political economy much more than it does the real electoral balance of forces on the ground. That means that important segments of the Ukrainian population are now only perversely represented in this Rada by deputies who care much more about their particularistic (often even purely venal) business interests and clientelist obligations than about their actual electoral constituencies.This structural flaw is in my opinion further triply aggravated by the absence of a bicameral parliamentary system in the form of a ‘senate’ that would represent regional interests more than political ones.  The absence of a bicameral system in Ukraine means, first of all, that there is no formal representation of the diverging regional sensibilities other than through the party system, which itself has arguably become more region-based than it would otherwise be because of this. Secondly, it means that laws do not have to go through some form of substantive ‘quality control’ coupled with a political double-check as to how (also regionally) politically sustainable they would be. Thirdly, it also means that Parliament (and - as a consequence - the entire country) is far too easily swept up in a frenzy of short-term political passions without the benefit of a cooling-off period in a senate. We have seen the pathologies that result from these structural flaws repeat themselves time and time again over these past few years - and even days.

What can be done about this? Two solutions suggest themselves - one in the immediate short term (over the next few days), and one in the more medium-term (in the weeks running up to the upcoming elections).

In the short term, these structural design flaws in the Ukrainian political setup imply that the current majority in the Rada has to resist the temptation to jump ahead of itself. That it has to think hard and deep about how the other, currently essentially disenfranchised, part of the Ukrainian population would respond to any new law it passes. About how such a law would affect the trust of the entire population of Ukraine in the very idea of the rule of law, and also in the credibility of the current (hopefully transitional) political system. A quickly drafted important law like the one passed by the Rada today deposing the president fails these two simple criteria. It is legally highly questionable. It is far removed from (and did not even refer to) the constitutionally established procedure for impeachment. Even its very title would not pass muster in a more quality-insured legal-political system. And it is also politically quite inflammatory, as it suggests that, just like the previous Rada, this one is quite happy to rubberstamp one-sided and ill-conceived documents. Without ANY discussion. The Ukrainian citizens who voted for the Party of Regions have excellent reasons to be legitimately dissatisfied about their representatives. They might even be on board with a number of laws against the kleptocratic Yanukovych-regime of which they too have been the victims. But pre-empting the 24 hours he had to sign (or not to sign) the law returning the country to the more balanced 2004 rules of the game is not legally correct and - more importantly - not politically smart. Especially since this also flies in the face of the European politicians who helped draft the agreement. As Martin Luther King once famously said: “Darkness cannot drive out darkness; only light can do that.” The legislative process today was just too dark. And the majority should really raise its standards.

But even more importantly - and this is an important challenge for the medium term - the country needs to have a much more serious, inclusive and actionable discussion about the fundamental rules of the game. The Rada is clearly not the right vehicle for such a discussion.  There has been too much Rada-driven constitutional amateurism in Ukraine. The so-called ‘2004 constitution’ was a good example of this. This mistake should not be repeated. It is therefore of paramount importance that a broader forum be convened with all key stakeholders to ‘design’ a new constitution. Not just politicians, but also NGOs, business representatives, churches, opinion makers, civil servants,  etc. Every important ‘cleavage’ in the societal fabric of today’s Ukraine should have the feeling that it is represented in such a round-table discussion. The debate should not take place behind closed doors but on a public and televised ‘agora’ (the Greek word for maydan). People’s individual inputs should be encouraged and analyzed. The discussion should not be about individuals, parties, specific groups or regions, but about the fundamental rules of the game that all of these should play by. t would almost certainly benefit from international expert support as resides in the Council of Europe’s Venice Commission (of which Russia is a part). The main topic of discussion should the design of an appropriate governance setup that would allow for a more equitable and efficient aggregation of Ukraine’s society’s different values and interests. Topics to be discussed should include issues such as the advantages and disadvantages of a bicameral parliamentary system, of having two (or more) official languages, of having a more genuinely federal system, etc. It should discuss how to ensure genuine separation of powers (with a special focus on a truly independent judiciary), how to eradicate corruption, the role of business interests, the electoral law, how to find a proper balance between ‘Europe’ and Russia etc. 

The current majority in the Rada is in a great hurry to hold presidential elections. It remains an open question whether this is the optimal course of action. Tensions in the country continue to run dangerously high. Centrifugal forces, especially in the East and South, are real. Yanukovych’ position remains controversial. Russia’s attitude remains unpredictable. Some argue that all of this pleads for ‘locking in’ what they see as the ‘progress’ that has been made in recent days and weeks. I wonder whether a better case could not be made for some strategic patience. The country needs some time to calm down, to lick its wounds and to absorb the changes. The current majority, which now seems more inclined to want to appoint a more ‘political’ coalition. might instead decide to appoint a more technocratic  (but selected and approved by the current Rada) ‘suicide’ government. This government, which could consist of a number of highly and broadly respected Ukrainian professionals without strong political affiliation, could just spend the next few months before presidential elections later this year, to pass a set of politically and economically painful reform laws that have been suggested by the IMF and the European Union for quite some time now.  While this government would be taking these tough but necessary decisions, a constitutional round-table could be designing new rules of the game that could be submitted to a national referendum  at the same time as the presidential elections. Whoever would then be elected the new president of Ukraine would also have to operate by the rules of the game that would have been inclusively designed. This would - hopefully - also diminish the personality factor to the benefit of a more balanced, considered and rule-based approach. None of this would necessarily have to take that long. A deadline sometime in the late fall might focus the minds of all sides and diminish the temptation to stall. And it might incidentally also allow the different sides to take their time to identify their most promising presidential candidates.

There is a general recognition across all of Ukraine (and beyond it - from Vancouver to Vladivostok) that far too much blood has been spilled over these past weeks. There is absolutely no excuse for that. People who have committed those crimes (on both sides) have to be prosecuted to the full extent of the law. Thanks to the unprecedented video footage of these events - in and of itself a tribute to the surprising ‘openness’ of the country - there is more than enough forensic evidence to get to the bottom of these crimes.  Also here international assistance is likely to be helpful. So justice and personal accountability will have to play an important part in restoring the social fabric of Ukraine’s society and in - hopefully - deterring future repeat occurrences.  I for one have little doubt that the country is up to that task. But if we truly  want to forge a more sustainable purpose for the blood that has been spilled so unnecessarily, we really have to go beyond that. It is people who kill. But poorly designed institutions can greatly enhance OR mitigate the likelihood that people will resort to such extreme measures.

The current Ukrainian majority can now go two ways. It can choose the typical 19th century European way: claim victory and impose revenge. If it does so, it will most likely set off the next cycle of political alternance and bloodshed. Or it can opt for the late 20th century European solution and look for a more inclusive and (thus) sustainable redesign of its own institutional setup. The fact that we did not see Middle Eastern (Syria, Iraq, etc.) savagery - even if we came close - suggests that Ukraine is not inexorably doomed to civil war or break-up and that there is a workable and sustainable way out of this crisis.  But in order to give this way a chance, the current majority really has to start thinking  more inclusively about Ukraine’s future.