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European Confusion in Kyiv

By       Message Andreas Umland     Permalink
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The West is becoming complicit in the unsettling of Ukraine's fragile democracy

Largely unnoticed in the West, Ukraine's new President, Viktor Yanukovych, has brought to power an illegitimate government, in March 2010. Though being installed via a seemingly orderly parliamentary procedure, the current Ukrainian cabinet headed by Prime-Minister Mykola Azarov has no proper popular mandate. Worse, according to Ukrainian press reports, Yanukovych's actions received first hesitant, and later explicit support from official representatives of Western countries and organizations. How did that come about?

Political Implications of Ukraine's Electoral System
Ukraine has a proportional electoral system with closed lists. Voters do not elect individual candidates, but can only approve of predetermined lists presented to them by various political parties or blocs. The members of the Ukrainian parliament, the Verkhovna Rada, become deputies only in so far as they are included in their bloc's or party's lists the composition of which is beyond the reach of voters. The electoral success and resulting faction size of parties or blocs in parliament is thus mainly determined by the attractiveness of their ideologies, and charisma of their speakers. Individual party list members play little role in Ukrainian parliamentary elections which are contests between large political camps and their more or less magnetic leaders. This is in contrast to majoritarian or mixed electoral systems where the local standing of regional and not only national political leaders plays a prominent role in determining the makeup of the national legislature.
For better or worse, Ukraine has abandoned first its early post-Soviet majoritarian and later its mixed electoral systems. It now conducts (except for a 3% barrier) purely proportional parliamentary elections in which individual list members, other than the small circle of nationally known party leaders, play little role during the electoral campaigns. Accordingly, Ukraine's Constitution ascribes to parliament's factions, and not to MPs, a decisive role in the formation of a governmental coalition. A government has to be based on the support of registered parliamentary groups, and cannot be voted into office by individual MPs. True, such a rule gives excessive power to faction leaders and belittles the role of the deputy as a people's representative. Yet, the factions' exclusive role in government coalition formation is consistent with, and follows from, the electoral system. In so far as voters are not given a chance to express their opinion on individual candidates, the elected deputies have to act first and foremost as faction members. Within proportional electoral systems, it is not them as individuals, but their factions as fixed political collectives recruited from prearranged lists that represent the voters will, in legislature.
In spite of these circumstances, Yanukovych, on March 11, 2010, pushed through a government that is based only partly on party-factional support. The three factions that form the current coalition do, by themselves, not have a majority, in the Verkhovna Rada. Yanukovich's Party of Regions, Ukraine's Communist Party, and Parliamentary Speaker Volodymyr Lytvyn's Bloc comprised after the last 2007 elections only 222 (and now comprises 219) of the 450 deputies. Yanukovich's Party has found a peculiar solution to this problem by luring away a number of deputies from its Orange competitors - the Bloc of Yulia Tymoshenko and pro-Yushchenko alliance "Our Ukraine People's Self-Defense" - in order to form a government coalition. This happened in spite of the fact that these two factions represent exactly those political forces which, during the last parliamentary poll, stood in open opposition to Yankovych's Party of Regions. When voters decided to cast their votes for the Tymoshenko Bloc and "Our Ukraine People's Self-Defense," in 2007, they were clearly also voting against Yanukovych's Party of Regions. Nevertheless, on March 11, twelve deputies who had become MPs on the tickets of the two Orange blocs signed the coalition agreement that laid the ground for subsequent transfer of almost all executive prerogatives to the Party of Regions. The formerly Orange deputies did so against the expressive will of their initial factions and in manifest disregard of their voters' mandate.

Proportional Representation and Party Renegades
Party transfers during legislative period, to be sure, are not unusual, in young democracies. They occasionally even happen in consolidated polyarchies, like the Federal Republic of Germany which has also a proportional electoral system (a partly personalized though). However, in mature democracies such political transgressions usually concern only isolated MPs who choose to pass from one to another faction, for personal reasons. Therefore, the German Basic Law, for instance, upholds the MP's unrestricted "freedom of the mandate," in spite of the fact that half of the members of the Bundestag are not elected directly, but collectively, on their respective parties' tickets much like in Ukraine. The idea that a relatively large group of MPs could be purposefully drawn from one to another party in order to effectively cancel election results is so absurd that it has received little attention from constitutional engineers, and political comparativists, of Western states. Should such consequential change in the political allegiance of numerous deputies happen, the violation of the voters' will would be so flagrant to make it appear as a waste of time to seriously consider such a strange, hypothetical case.
In unconsolidated pluralistic states, such things, however, do happen. Moreover, as the pre-history of the Orange Revolution showed, Yanukovych and Co. are no democrats. Their poorly disguised falsification of the first two rounds of the 2004 presidential elections, as well as numerous related actions, indicated the Party of Regions' ambivalent relationship to democratic norms. In principle, it is not necessary that all participants of the political process in a democracy are proper democrats if the framework and incentive structures within which they act are set up well. In Ukraine, an important condition that has facilitated much of the progress achieved in democratizing this post-Soviet country during the last years was the influence of pro-democratic foreign actors whether certain countries such as Poland and Canada, or European organizations like the Council of Europe and EU.

Western Reactions to Ukrainian Developments in 2010
However, the international embeddedness of Ukraine's democracy as a normative frame structuring politics in Kyiv has recently been suffering from ambiguity. A first faux pas was the timing of the European Parliament's recent resolution approving of an EU membership perspective for Ukraine. The resolution as such constituted doubtlessly a step in the right direction, against the background of the EU's earlier policy of indicating much, but promising little, to Ukraine. When the EuroParl resolution endorsing Ukraine's right to apply for full EU membership was adopted, in Strasbourg, on February 25th, 2010, it was immediately and widely hailed in Ukrainian mass media and by Kyiv's experts community. Then Foreign Minister Petro Poroshenko even called, on Ukrainian TV, the date of 25th February 2010 a "historic day" in Ukraine's post-Soviet development.
What, however, is difficult to understand regarding that resolution is that it was adopted not before, but after the Ukrainian presidential elections of January-February 2010. It would have been in the vital interests of both the member states and organs of the EU to send such an important signal to the Ukrainian people and elites in advance of, and not following, the recent standoff between pro-Western Yulia Tymoshenko and pro-Russian Viktor Yanukovych. If adopted before the first round of the elections, say, in November 2009, the EuroParl resolution would have influenced, if not restructured Ukraine's domestic political debate. It might have made the defeat of Yulia Tymoshenko - whose self-styled image is that of Ukraine's most ardent pro-European politician - in the presidential elections narrower or even unlikely. Instead, the European Parliament's resolution adoption after the second round of the presidential elections and victory of Yanukovych can now be interpreted as an endorsement of the election falsifiers of 2004. At least, it appears that Yanukovich seems to have interpreted Europe's new tolerance this way. For instance, on April 2, 2010, he impertinently named Serhiy Kivalov, the former Head of the Central Electoral Commission, i.e. the chief voting falsifier of 2004, as Ukraine's official deputy member of the Council of Europe's Venice Commission for Democracy through Law - thereby setting a fox to keep the geese.
Moreover, the West has apparently played a certain role in legitimizing the dubious government formation of March 2010. Interestingly, Yanukovych seems to have understood the problematic aspects of the planned takeover of the executive branch of government by the Party of Regions with the help of turncoats from opposed parliamentary factions. According to press reports, a day before the approbation of the Azarov government in the Verkhovna Rada on March 11, the new Ukrainian President consulted the Ambassadors of the G8 countries (i.e. including Russia's envoy) about whether their countries would accept a government elected by individual MPs, i.e. including deserters from opposed camps, and not by factions. Allegedly, after some controversial discussion, either the majority or all of the Ambassadors gave Yanukovich green light under the condition that the President would ask the Constitutional Court to rule on the issue of the constitutionality of the new government. The Ambassadors, reportedly, also insisted that the Party of Regions would cooperate with other political forces. While it seems that Yanukovych is largely ignoring the latter agreement, he indeed submitted a request concerning the legitimacy of the Azarov government to the Constitutional Court, as demanded by the Ambassadors.
The Ambassadors' approach to the new President is understandable: They and their governments are, above all, interested in political stability, in Ukraine. And, in Western political systems too, the status of deputies' popular mandate is not well-defined: Are they free to behave as they wish, or bound by party discipline? If the latter: To which exact degree is their freedom of action circumscribed? In the Western context, such questions would be seen as issues to be decided by a constitutional council or court. Review by the Constitutional Court is thus the obvious way to go.

The Remaining "Proto-" in Ukraine's Proto-Democracy
Ukraine, however, is not yet a consolidated democracy with a deeply ingrained rule of law. It is a state still in the process of formation, and one of the countries that has, world-wide, suffered most from the financial crisis. Judicial review has started to function in post-Soviet Ukraine, as the Constitutional Court's intervention during the Orange Revolution showed. Yet, it is not clear whether the Court's review on the new Ukrainian government coalition constituted an orderly process solving the current conflict between the political camps, as it had done in 2004. Yulia Tymoshenko has already claimed that individual judges of the Court have received as much as $1 million, for a "positive" decision, i.e. the now adopted ruling legalizing the current government coalition. On April 8, 2010, a majority - 11 of the 18 of the Court's judges provided Yanukovych with a "positive" decision, i.e. ruled that a government coalition can also be formed with deputies not belonging to the coalescing factions.
That is a strange development in so far as the Constitutional Court did already rule on the issue of whether individual MPs may participate in government coalition building. In its decision of 17 September 2008 (http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=v016p710-08), the Constitutional Court ruled that "["] only those people's deputies of Ukraine who are members of the deputies factions that form a coalition can enter the ranks of that coalition. The membership of the people's deputies of Ukraine in these factions underlines the exceptional role of deputies factions in the formation of a coalition of deputies factions." In view of this ruling, the current government appears as not only illegitimate from a democratic point of view, but also as illegal from a juridical standpoint. Yanukovich's recent assurances to the Ukrainian public and Western Ambassadors that he would follow the Constitutional Court's decision always looked empty, in that the Court had already made and published a clearly relevant ruling, in 2008. Yanukovich has been asking the Constitutional Court to either repeat a decision it has already made, or renounce an earlier ruling both of which would have confused Ukraine's constitutional order. It would have either introduced the practice of repeat confirmations, by the Constitutional Court, of decisions already made. Or it will now put under question all previous rulings by the Constitutional Court which, presumably, also could be revoked by the Court, after a second hearing.
What now also follows is an unsettling of the party-electoral system of Ukraine. If elections continue to be held in a purely proportional mode, voters will become unsure what their votes actually imply and will eventually lead to. As voters can only approve of closed party lists, they have no opportunity to punish individual deputies who have renounced the mandate they had received during the previous elections, i.e. who have, in fact, betrayed their voters. Worse, voters of those parties or blocs that have suffered most from enticement of their deputies by competing parliamentary factions will ask themselves why they are voting at all. If the deputies whom they delegate to parliament may later be poached by the opposing camp, and switch political sides, it makes little sense to send them to the Verkhovna Rada, in the first place. As the Constitutional Court has, de factor, now renounced its decision of September 2008, Yanukovych's Party of Regions is a sort of "double-winner": it can keep its hold on the executive with the help of deserters from other factions; this, at the same time, undermines the electoral base of its political competitors. Democratic elections' primary function of constituting a transparent link and effective feedback mechanism between the population and government is diminished.

The European Parliament's "Uneuropean" Ukraine Policy
What is most surprising in this story is that, apparently, the European Parliament has been pushing Ukraine, in exactly this direction. Or, at least, it has done so, in the eyes of the Ukrainian public. On March 26, a delegation of the European Parliament headed by Dr. Adrian Severin, a Romanian law professor, met with President Yanukovych, in Kyiv. Severin is the Vice-Chair of the Group of the Progressive Alliance of Socialists and Democrats the social-democratic and second largest faction of the parliament of the European Union. According to the report from the meeting published by the Press Office of the President of Ukraine (http://www.president.gov.ua/news/16790.html), Severin said to Yanukovych: "We are satisfied that you managed to form a coalition which will now move towards solution of topical political and economic problems. We hope that the Constitutional Court will confirm the legality of the formation of that coalition. Certainly, pre-term elections could be also a constitutional solution, but we are more impressed with stability in the state, than with pre-term elections." Whether this quote on the website of the Ukrainian President is correct or not it has been widely reproduced as well as paraphrased in Ukrainian mass media, and never been renounced by the European Parliament. The Ukrainian public now believes that the EU supports the illegitimate and illegal government creation of March 11, 2010. This impression may have even exerted influence on the recent ruling of the Constitutional Court of April 8, 2010.
As with the reaction of the Ambassadors during their meeting with Yanukovych on March 10, one can understand the West's wish to see, after the years of Orange infighting, finally a stable government in Kyiv. However, there is little ground to believe that the EU's seeming support for the current regime will actually lead to stability. Though it would go too far call the Party of Regions anti-democratic, the political instincts of its leading functionaries are not yet directed by a concern for balance, pluralism and inclusiveness. Rather, the Yanukovych people, like many politicians in the post-Soviet space, still largely think in terms of zero-sum games: they will try to grab as many relevant post and positions as they can believing that the more power they will have the better for them, and the worse for their opponents. For Yanukovych and Co., the idea of "Europe" is certainly a factor, but so far only a constraining, rather than a normative one. Integrating Ukraine into the EU is, to be sure, an important aim of the leaders of the Party of Regions too, but, in most cases, they are more or less deeply impressed by, rather than genuinely attracted to, European democracy.
It looks as if Yanukovych and Co., having received Western approval of their first dealings, have come to believe that "the winner should take it all." Not a single of the seven vice prime-ministers of the new government comes from an official parliamentary coalition partner of the Party of Regions. (The governments 29 prime- and ordinary ministers also do not include a single women.) Moreover, the governmental coalition seems now also aiming to get hold of the chair positions of the most important parliamentary committees that are assigned by law to the opposition. The behavior of the Party of Regions still largely follows the pattern of its 2004 dealings that caused the Orange Revolution.

Lessons to Be Learned for Europe and Ukraine
Western observers and visitors should understand that, for many Ukrainian politicians, the main political question is still not what is legitimate, but what is doable and whether they can get away with it. When dealing with the Party of Regions, European and other partners of Ukraine should keep in mind that the anti-Orange camp led by Yanukovych never actually received a majority in national elections. Yanukovych is the first Ukrainian President elected to office with less than 50% of the votes in the decisive second round of the elections. Nevertheless, Yanukovych has now taken firm control of the entire executive branch, including government, regional administrations, the Central Bank, security service etc. Ukraine's European partners should make clear that a stable government is certainly of value, but that stability "a la Putin" will be unacceptable should Ukraine want to keep its European perspective.
Ukraine's decision makers, in turn, have to understand that semi-formal observance of democratic rules and merely rhetorical acceptance of political pluralism will be insufficient to keep the country on track to eventual EU membership an aim to which all relevant political actors seem committed. Oral agreement to certain actions even by official Western delegations will not be enough to ensure sustainability in Ukraine's move towards Europe, for the next years. Statements, like those reportedly made by Adrian Severin, could eventually even mislead the Ukrainian leadership to believe that everything is OK. Instead, it is possible that the government formation of March 11 will lead to a downgrading of Ukraine in future democracy rankings, like those of Freedom House. Should Ukraine, for instance, be relegated by Freedom House from "free" to "partly free," this could have grave political repercussions for Ukraine. The Western public would again start to see Ukraine as a country "in between" democracy and authoritarianism, and not as a state firmly committed to European values. Ukraine would slide into the category of countries like Moldova, Georgia or Armenia semi-democracies that the EU hopes to include some day, but regards today far from rife to be offered a membership perspective. It is not some selected Ambassadors or EU officials, but the people of Europe including the Ukrainians themselves whom the new political leadership of Ukraine will have to convince of its commitment to democracy and the rule of law.

 

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============================================================================== Andreas Umland, CertTransl (Leipzig), MA (Stanford), MPhil (Oxford), DipPolSci, DrPhil (FU Berlin), PhD (Cambridge). Visiting fellow at Stanford's Hoover Institution (more...)
 

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