Absence of constitutional reform means eternal crisis, and reform in a crisis situation threatens a Moldova scenario
The cassette scandal has proven convincingly that the nation’s political system suffers from the lack of political and legal mechanisms to overcome a crisis. It has turned out easy to paralyze the parliamentary majority, while political responsibility and the wish for a coalition so far remain a handy slogan for the government. Moreover, destructive conflict between the president and parliament has become virtually a trademark of independent Ukraine.
In this context, the round table called Dialog in the Name of Ukraine’s Future can provide a breath of optimism: the point is not that the resolution motes the necessity of a broad sociopolitical dialog “to search jointly for ways to overcome the political crisis in Ukraine” but that the resolution was signed by representatives of fifteen very different parties and non- governmental organizations, including the party of Industrialists and Entrepreneurs, People’s Democratic Party, the Socialist Party, Sobor, SDPU(o), Labor Ukraine, and Ukrainian Republican Party. President Leonid Kuchma and Premier Viktor Yushchenko were invited to attend the second sitting in March. This is a clear attempt to replace confrontation with a normal dialog.
Still to be solved are the problems of shaping the election system, parliamentary majority, and opposition as well as defining the role and place of parties. Obviously, we will have to raise the question of coalitions, political responsibility of the government, the status of ministers, and then of the principles according to which the cabinet is formed. In other words, it is a question of reforming the bodies of government. Whether this will be done by implementing the referendum decisions or by some other means is currently not so important. What is primary is that this will have to be done sooner or later. It is also obvious that the responsibility of those in power and the opposition lies in being able to thwart any Moldova scenario such that the Communists win a majority.
The debate on the necessity and ways to carry out the constitutional reform in Ukraine has entered a new phase. When the national referendum was initiated last year, the idea was to tip the balance of the branches of government in favor of the president. Now the opposition is trying to reverse the constitutional reform and transform the Ukrainian political system into a parliamentary republic.
Let me remind the reader of the essence of the matter. The modern world distinguishes between the presidential, parliamentary, and mixed (presidential-parliamentary and parliamentary-presidential) systems combining the attributes of a presidential republic and parliamentary rule.
The fundamental feature of the latter system is that the government bears political responsibility to both the president and parliament. Specific varieties of the mixed system can gravitate toward either the presidential or the parliamentary form of government. Most postcommunist states have established a mixed form of government, with the post-Soviet states (including Ukraine and Russia) generally opting for the presidential-parliamentary variety.
The minuses of the presidential- parliamentary system are quite obvious. First is the inherent conflict between the legislative and the executive powers. Given the absence of any traditions of political compromise, the equal and independent legitimacy of the president and parliament, elected on the basis of the popular vote, would inevitably engender disputes about which branch is more legitimate, especially during struggle for the distribution of resources or control over the executive. Such dual power engenders another problem: the government and the prime minister fall hostage to the political game or more often than not to a continuing smoldering conflict between parliament and the president. The most recent political history of Ukraine and Russia abounds in examples of premiers and their governments being dependent on the emotions, let alone the will, of the president. Moreover, the disadvantaged status of the government checks and restricts the political weight of parties. The party beau monde is in fact stripped of the possibility to form the Cabinet of Ministers. Parliamentary seats, the ability to influence lawmaking, and perhaps one or two governmental offices are simply consolation prizes, for which Ukraine’s political parties vie.
The objective contradiction and the clash of interests of the president and Verkhovna Rada contributes to the formation and concentration of an anti-presidential political opposition precisely in the parliamentary field. The institutional complexes of social psychology (both anti-presidential and anti-parliamentary, depending on which camp the bearer of such a complex belongs to) run riot in such fertile soil for conflict. This impairs the lawmaking process in the long run. The parties involved in drawing up and approving legislation (the president, Cabinet of Ministers, and parliament) are worried not so much about the coordination of interests and the search for compromise to settle the objective contradictions inevitable in lawmaking as about how to thwart each other.
The evolution of the political systems of the post-Soviet states has exposed an indicative trend. The Western oriented Baltic states, having consolidated their democratic systems, are gradually evolving to a greater (Latvia and Estonia) or lesser (Lithuania) degree toward the classic parliamentary model typical of many European states. Conversely, the making of authoritarian regimes in most of Central Asia, Belarus, and Azerbaijan has gone hand in hand with the abrupt strengthening of presidential powers, with some formal characteristics of the presidential-parliamentary system remaining.
In Russia also the balance of power is shifting step by step toward strengthening presidential powers. Last year Ukraine also tilted toward a presidential republic. Both Russia and Ukraine are de facto ruled under a strong presidential regime. But the juridical specifics of the presidential- parliamentary system, based on the inherent reciprocal restrictions of the powers of parliament and the president, reduce the functional effectiveness of both the legislative and executive branches of power. This is especially evident in Ukraine.
What is the way out of this situation? Above all, constitutional reform should be kept free from politicization. Political struggle on the constitutional field should give way to a consistent and well thought out transformation of the form of rule and the formation of a more effective system of cooperation between the legislative and the executive branches. Here any radical changes are not worthwhile.
The ills of the Ukrainian political system call for a complex regimen of treatment making possible a single and systemic constitutional reform.
The effectiveness of a certain form of government depends to a large extent on whether the election system fits it. For example, in many Western European countries the classic system of parliamentary democracy was organically based on the proportional election system. Simultaneously, the Latin American model, which combines the presidential form of government and the proportional election system, is the least effective. Alas, some Ukrainian politicians and political technologists are in fact trying to apply precisely this model to Ukraine.
Another characteristic example is the status of cabinet ministers. Almost a third of the government has been formed from members of the Ukrainian parliament in the past few years. But, as long as the Constitution forbids people’s deputies to be in the civil service, this creates a number of serious problems. Governments are changed in this country almost every year, which means that the status of minister is very unreliable, while the forfeiture of a far from inexpensive deputy’s mandate would mean suffering a loss. Moreover, losses are also borne for this reason by the majority which delegates its representatives to the government. To fill the vacant seats, by-elections should be held, which requires additional public spending. Meanwhile, in the countries with a parliament-cabinet system of governance, a majority- party deputy retains his parliamentary mandate even if he becomes member of the government. In this case, ministers enjoy political status without being civil servants.
The crucial problem of reforming the political system in Ukraine is to strengthen the reciprocal political responsibility of the Cabinet of Ministers and Verkhovna Rada. A viable, not artificial, parliamentary majority can only be established by negotiating the formation of a coalition government. The example of France shows that, even in the framework of a mixed form of government, the president can reckon with the will of lawmakers members representing opposing political camps. However, if the parliamentary majority breaks up and the cabinet loses its political basis, the president must have the right to dissolve parliament and call early elections.
Coordination of the main principles and guidelines of the constitutional reform could become the object of a dialog between the warring political forces. But if it proves impossible to reach at least a relative degree of mutual understanding on these issues in the current political crisis, it will be better to defer constitutional reform.
What should be decisive is the imperative of a systemic and well- coordinated constitutional design. The Constitution is not only the fundamental law of the state but also a pact of societal concord. Otherwise, we will be destined to wander endlessly in the maze of uninterrupted constitutional “reforms” and political courses without any hope of seeing the light at the end of the tunnel.
