Yevhen MARCHUK : “The constitutional struggle today means a struggle for power tomorrow”

In the following interview Yevhen MARCHUK comments on current constitutional mistakes and lessons from the past.

Mr. Marchuk, why do you think that the representatives of various party camps and institutions have started “kneading the constitutional dough” so actively now?

The kind of constitutional struggle that we are having is actually a struggle for power in the future. There is another aspect. The average Ukrainian may get sick and tired of this struggle, so he will no longer care about the constitutional problem as such. On the other hand, in the conditions of popular apathy, it will be very easy for someone to use spin technology or good organization to come up with any kind of version of the constitution and people will vote for it. I believe that President Yushchenko and his team made a tactical mistake at the start of the constitutional campaign when they declared that the constitution will be adopted without parliament. They overlooked the fact that the president’s overt and concealed opponents would be in parliament, speak from its rostrum, and have extensive media coverage and other tools that President Yushchenko would be hard put to counteract. For example, when parliament passes a resolution, that’s it! It won’t be vetoed, as we all know.

Does this mean that the president is actually pushing the BYuT and the Party of Regions into each other’s embrace?

Not in the logical and political sense; otherwise, such a situational alliance is quite possible. I believe that the BYuT has enough political figures that have not been caught up in the fervor and can convince Tymoshenko that this kind of collaboration, even if it is situational, may have an effect on the electorate, and this is the last thing she would want to happen. However, this kind of situational collaboration between the BYuT and the Party of Regions could be an attractive proposition in their struggle against President Yushchenko, including the Presidential Secretariat and Our Ukraine.

By the way, I think that the OU people are making a very bad mistake by representing themselves as a powerful political force. It is true that they have their electorate, but we know its percentage, and we also know that quite a few OU sympathizers among their electorate have many doubts, regrets, and disillusionments. All things considered, it won’t be long before Our Ukraine proves unable to adequately assess our citizens’ support for its platform, what we call the electoral base. By posing as a powerful political force, OU representatives look like people who are assessing the situation unrealistically. To the active part of the electorate this is another signal of disillusionment.

Getting back to the constitutional issue and Viktor Yushchenko’s start-up mistake that I mentioned earlier, many people will immediately draw parallels with Kuchma in 2000. No further comment.

Considering the polarized views of the key players in the Ukrainian constitution game, how would this fundamental law stand a chance of being recognized, respected, and implemented by everyone? Or will even this constitutional project not be accepted?

In principle, at this stage it would be reasonable to have a time-out. It is necessary to take two steps backward and assess the political prospects. What we have is a situation resembling a racecourse, with dozens of horses galloping along. Who will try to stop any of them? Halting this race would have been the wisest decision at this stage. This does not mean stopping the whole process. If either of the sides pushes through its version of the constitution, many questions will emerge. By the way, it should be noted that Ukraine has a very bad image in the eyes of Europe. No big investor will conduct long-term business in a country where there is a pitched struggle for the constitution, not just a political struggle but a struggle within the ruling coalition.

Why do you think there is such a substantial divide between constitutional theory and constitutional practice in Ukraine?

I am not dramatizing the situation, considering that it takes decades to achieve serious constitutional stability. To a large extent, the process we have is an objective one. There is a normal logical aspect to it. Naturally, all of us desire stability and the final resolution of the constitutional issue. But who can show us the best way? Perhaps we should let the constitutional passions and extremist moods roil, boil over, and wear off. Most Ukrainians will plunge into this process and realize who really wants what. This is number one.

Number two: we remember what happened in 1996 and 2004. Today the situation is somewhat repeating itself. Remember how persistent President Kuchma was in pushing his redaction of the constitution through a referendum? Prime Minister Lazarenko and his team traveled to Cherkasy and held a cabinet meeting there so as to prevent the MPs from the government structures from taking part in the parliamentary session so that it would lack a quorum. Kuchma, unfortunately, involved certain well-known democrats in this process. I was an MP at the time and took part in the Constitutional Night. I remember the offensive attacks against parliament by Kuchma and his team. We know the outcome.

The current situation is strongly reminiscent of 1996. While I agree with many of President Yushchenko’s arguments - it really should be seriously amended - I cannot accept the technology itself because it smacks of old failed retrospections and similar consequences.

In other words, you could say that the government’s view of the constitution is quite often banal: the view depends on where one sits.

The point is not even the retrospections that we are talking about. It is that the lessons from the recent past of our modern political history are not being learned. We know what happened to the referendums of 1996 and 2000. We are fully aware of the reasons behind their fiascos. Of course, there is no avoiding a referendum in this case, but not at the beginning - at the end of this process. The first attempt to create a political coalition was made in 1991, known at the time as the Kaniv Four. Its experience had to be repeated in 2006 with Oleksandr Moroz in order to realize what was understood even back in 1999.

The creation of a constitutional commission in the form of a parliamentary miniature is a priori doomed to grapple with complex problems. The intensity and effectiveness of the commission’s work became the butt of jokes, especially after the Party of Regions withdrew from it. The question is, “Can 150 Members of Parliament table their version of the constitution in parliament?” The answer is yes. Can anyone prevent them from doing this? The answer is no. Was it possible to predict that the Verkhovna Rada would form its own commission and that it would be impossible to prevent this from happening? It was, especially considering our current political realities.

Everything that is happening in the constitutional realm is cause for sadness because, in my opinion, the best option would be to have not only the Constitutional Council but a team of top-notch independent foreign experts, people who would be able to draft their own version of our constitution, with an eye to 30-year prospects, for example. Then this draft constitution should be discussed by experts and the public. Only then should this bill be submitted to parliament and duly substantiated. This option would offer more guarantees that such a version of the constitution has been formulated not in order to play into the hands of this or that political force, but in order to take into consideration prospects for Ukraine’s development, with an eye to our history, mentality, and so on.

In view of global trends, which form of government do you think would lead Ukraine along the path to progress?

In my understanding, it should be a presidential-parliamentary model, but it is no longer possible at this stage because Ukraine has passed through part of the process of parliamentary-presidential reform. It is very difficult to turn this machine back, although it is possible. But permit me to say that the current version of today’s situation is not a dramatic one.

A number of politicians are constantly saying that the reason behind the troubles of recent years is the constitution, which in 2004 led to a misbalance in the power vested in various branches of government. Do you agree with this statement, or is it an exaggeration, a search for a scapegoat?

I don’t accept this statement in its categorical form because a lot of things depend on certain individuals who hold certain posts. Tell me: is our constitution to blame for the situation in which the prime minister wants to summon the heads of all regional administrations to give them a dressing-down for the gas payments, while the presidential structures suddenly adopt a technology whereby all trips by heads of administration are to be coordinated with the head of state? So a head of an administration has to coordinate his trip with the Secretariat in order to visit an oblast counterpart. Considering that these heads of regional administrations are appointed by the president as submitted by the prime minister (that’s the legal procedure that should be observed), they have to take orders from both. Given a normal situation, such matters could be resolved in a five- minute telephone conversation between Bankova Street and the Cabinet of Ministers of Ukraine.

Does this mean that there is a human factor in the crises of recent years?

Without a doubt. It is true that the 2004 version of the Constitution of Ukraine caused a serious power imbalance. There truly is a problem in it, but the ongoing pitched struggle for power provides grounds for exploiting this circumstance in order to hyperbolize it. It is worth mentioning that Tymoshenko and most of her fraction did not vote for these amendments. Neither did she support the famous declaration whose pitiful results are well known.

Clearly, the finale of this show will take place in 2010. How will it end?

I believe that the current situation is objectively helping Tymoshenko’s ratings because in the public consciousness the government’s statements and deeds have a simplified formula. People see a “poor” prime minister who wants to refund their lost savings, who wants to pressure the bureaucrats to settle our gas debts with Russia, while the presidential side is preventing her from doing all this. Neutralizing this simplified formula at the level of daily consciousness takes a long time and is not always effective. Tymoshenko must have had good consultants, considering that for quite a long time she did not respond to the numerous verbal attacks from the presidential camp. This has resulted in the strengthening of Tymoshenko’s positions and the weakening of Yushchenko’s positions.

I am not saying that this is good or bad, I’m just saying that this is a situation that has developed objectively. Developing parallel to this process was the active schooling of our citizens, who earlier were not very conversant with all the subtleties of political tenets. Now what do they see? Tymoshenko did not support the amendments to the 2004 constitution and the president’s declaration, and she was proven right. The conclusion, which is even a bit simplified for the public, emerges that Tymoshenko is a more realistic and more farsighted politician. Naturally, this translates into support for her current position on the constitutional process.

Considering that the Verkhovna Rada has not been working for a year and a half, would you describe Ukraine as a parliamentary-presidential republic?

I would not describe it strictly as that. Ukraine is no longer a presidential-parliamentary republic, nor is it a parliamentary-presidential one. What we have now is a complicated transition period.

Viktor Baloha, the head of the Presidential Secretariat, said a few days ago that Prime Minister Tymoshenko is planning to leave her post so as not to lose her popularity on the crest of a wave of electoral popularity ahead of the presidential elections. Is the resignation of the Cabinet of Ministers a realistic scenario?

I think that Baloha’s statement is premature, and even if Tymoshenko is planning such a move, she is no position to do this now. After the latest developments in parliament it is clear that she has no intention of doing so. I think that, for objective reasons, right now Tymoshenko is not interested in slamming the door and leaving the government.

The time may come when Tymoshenko will have to make a choice between flying toward the sun like Icarus or leaving her post as prime minister.

As for Baloha’s statement, I would describe it as a clever move aimed at blocking Tymoshenko’s room to maneuver. But I still predict that the name of Ukraine’s prime minister will not change at least until this summer.