On July 14 the Ukrainian parliament, or Verkhovna Rada, retired for its summer recess. Speaking that same day at a meeting of the Regional Council – the forum of the presidentially appointed oblast chairmen – President Leonid Kuchma declared himself satisfied with the Rada’s work during its fifth session, while the Rada chairman, Ivan Pliushch, reported that the legislature had "accomplished all of the tasks it had been assigned." The parliamentary "Velvet Revolution" at the beginning of the session had produced a pro-reform majority under a new leadership capable of delivering many more than the 226 votes needed for the adoption of most legislation. This enabled the Rada finally to begin to move on such key issues as the adoption of the land and tax codes, passing them in their first reading. Work has also accelerated on the criminal and civil codes.

Most significant, however, in terms of its potential for unraveling the majority - and, as a result, precipitating a renewed confrontation between the Rada and the Presidential Administration – is the fate of amendments to the Constitution proposed by President Kuchma as a result of the April 16 referendum. (Four proposed amendments were overwhelmingly approved. These would: give the president the right to dismiss the parliament if it proves "unable to form a permanently functioning majority within one month.... or if it is unable to approve within three months" the budget submitted by the government; limit the immunity of parliamentary deputies; reduce their number by one third to 300; and, finally, create a bi-cameral parliament). Yet despite some reservations and tension over this issue within the the Majority, intensive consultations with the Administration persuaded enough waverers to ensure that the presidential draft law was approved in its first reading by a comfortable 251 votes on the penultimate day of the session.

Essentially, the amendment procedure is a two step process occuring over consecutive sessions. By squeezing in the vote on the president’s draft law just before recessing the Rada set the stage for the draft amendments to be refined and adopted during the forthcoming sixth session. Yet the relative ease with which the Rada eventually negotiated this initial stage has not removed some lingering doubts over its collective will or ability to produce the constitutional majority of 300 votes ultimately needed to adopt the amendments. Accordingly, some commentators believe that the July 13 vote was deceptive in that it simply deferred until the next session a parliamentary or even general political crisis that the threat of a referendum was averting but the implementation and consequences of which have made inevitable.

II Given the stakes, it is hardly surprising that the referendum initiative generated much controversy from its very inception. It was presented by the official media and spokesmen as a spontaneous popular initiative to redress the Verkhovna Rada’s putative structural and anti-reform biases. These were allegedly preventing the "new" President Kuchma from pursuing the reformist mandate he had been granted with last year’s re-election. However, no number of tediously grave references to the incontestable majesty of the popular will could disguise the fact that the referendum was essentially a gambit by the presidential Administration to bolster the president’s position with respect to the Rada by exploiting a widespread discontent that sees the Verkhovna Rada - even in its new incarnation - as the collective embodiment of Ukraine’s many political and economic shortcomings. There was no attempt by the official media to explain the options in terms of their merits. Complex issues were reduced to simple slogans essentially exhorting people to vote "yes" for a better future. Thus, the outcome of this exercise in the manipulation of the public’s considered ignorance was almost a foregone conclusion. Yet despite objections and accusations from several quarters about alleged procedural violations and doubts over the veracity of the official 81 percent voter turn-out figure, none of the referendum’s opponents challenged the results through the courts.

Since the Constitutional Court had already ruled that the outcome of the referendum was binding the issue then became how to interpret the results in a legally competent and coherent – not to mention politically acceptable – manner, a process that involves changing numerous laws affected by the amendments.

Two alternative draft amendment laws were submitted to the Constitutional Court to review their compatability with Article 157 (which states that constitutional amendments that limit citizens’ rights and freedoms, "liquidate" independence, or violate Ukraine’s territorial integrity are impermissable). One was from President Kuchma and the other was drafted on behalf of the parliamentary opposition by the maverick former minister of justice, Serhiy Holovaty and former Rada chairman and Socialist presidential candidate, Oleksandr Moroz. The former document reflects a very narrow interpretation of the referendum’s outcome. It omitted the question of the creation of a second, upper parliamentary chamber, preferring to await the deliberations of a committee specially formed to examine the implications of this most complex of the proposed amendments. The Holovaty/Moroz (H/M) interpretation was much broader and addressed a whole series of issues relating to the balance of power between the legislature, executive, and the Administration such as, for example, strengthening the role of the Rada with respect to the government.

On June 29, the Constitutional Court announced that the presidential version had satisfied the Article 157 criteria, but that some of the terminology had to be refined. It also revealed that it had yet to examine the more substantial H/M draft - but would do so before the summer recess. Not surprisingly, this spurred accusations that the Court had not acted objectively and that since both versions had been submitted to the Court at the same time the verdict on both versions should have been issued simultaneously to allow the Rada to examine them together. The Court’s rapporteur, Justice Mykola Kozubrya, argued, however, that the Court was constitutionally obliged to pass verdicts on an individual basis. The Rada Committee on legal policy recommended that in the interests of fairness the Rada nevertheless examine the two versions together (with a third law from January 20 specifically addressing the issue of the deputies’ immunity).

Yet the Rada’s legal department countered that there was no legal requirement that the two versions be examined simultaneously. With Chairman Pliushch not opposed to President Kuchma’s publicly declared timetable of completing the amendment process before the end of the year and with any grumblings or hestitation within the Majority persuasively dealt with by the Administration, the resolution adopting the presidential draft in its first reading was passed remarkably smoothly. That same day, July 13, Justice Kozubrya announced that the Constitutional Court had decided to halt its examination of the H/M draft because its attempt to address, among other things, the issue of the second chamber was insufficiently precise and would require an almost comprehensive revision of the Constitution. Essentially, the Court approved those proposals of the H/M draft that coincided with the president’s strict interpretation and rejected the rest on the grounds that they did not relate directly to the issues raised in the referendum. III This ruling has added more fuel to the debate over the independence and hence impartiality of the court system in post-Soviet Ukraine. The reason for this, argue some observers, is that in taking a narrow interpretation of what kind of draft law the referendum should have produced the Contitutional Court ignored an essential point of Section XIII of the Constituion (which addresses the amendment process). Article 154 clearly implies that the Verkhovna Rada – as well as the president - can introduce a bill to amend any part of the Constitution at any time. No mention is made of the need for a referendum to initiate the process (even though one is required at the end of the amendment process to approve certain, specified amendments). The requirement for the Rada is simply that any initiative be supprted by "no less than one third of the Constitutional total of... deputies" (150 votes). The H/M draft satisfied this criterion. Thus, the argument goes, the fact that the Court effectively dismissed the H/M draft law on the grounds that it addressed broader issues than those raised in the referendum contravenes the Rada’s prerogatives and renders the ruling essentially a concession to political expediency. In the absence of clear evidence of coercion perhaps the most that might be said is that the Court justices, despite Justice Kozubrya’s denials, could not have been humanly unaware of the political implications of approving the H/M draft - and President Kuchma’s constant public reminders to that effect….

As for the Verkhovna Rada’s behavior, Article 158 implies that the Rada is not automatically obliged to pass a law proposing a constitutional amendment. It also states that any such law not passed cannot be resubmitted for at least a year, something that would clealry upset the Administration’s schedule. The Majority constitutes a jumbled amalgam of pro-reform interests to a lesser or greater degree supportive of the president and/or Prime Minister Viktor Yushchenko – if not necessarily his government – and those that oppose the latter but are guarded in their opposition given the president’s current satisfaction with the premier (if not with the way some of his Cabinet members are handling their portfolios). Party and faction discipline and loyalties remain conditional and volatile. The resultant atomized environment therefore leaves President Kuchma and his more coherent Administration plenty of scope for working with individual as well as groupings of deputies. This was the genesis of the Majority. And it continues to be the defining factor behind the apparent metamorphosis of the Verkhovna Rada into a legislature whose identity increasingly seems to depend less on its prerogatives as the supreme legislative institution than on the role the Administration shapes for it….

Extrapolating from these developments, it seems unlikely that upon reconvening the Verkhovna Rada will ‘wait’ for an improved version of the H/M law to appear before proceeding with the amendment process. Indeed, such a move, unless an act of assertion, would be pointless because the Constituional Court’s ruling implies that it is not prepared to sanction any attempt to tamper extensively with the Constitution. Thus, while there is likely to be much sound and fury around the refinements to the president’s law – concerning, for example, the need to clarify terms such as "a permanently functioning parliamentary majority" or the president’s right to dismiss the Rada if it doesn’t adopt the budget within a three month period (is, for instance, the budget considered adopted when the Rada approves it or when the president signs it?) - any compromise will more likely than not be on the president’s terms.

President Kuchma, Rada chairman Pliushch and his first deputy Viktor Medvychuk, as well as the Rada’s unofficial ‘manager,’ Ukraine’s pre-eminent oligarch, Oleksandr Volkov, have all expressed confidence that enough votes will be found to supplement those of the Majority - approximately 280 deputies - for the 300 threshold to be reached . (Former president Leonid Kravchuk, the Majority’s coordinator, remains less sanguine). Precedent suggests that the combined efforts of the Rada leadership and the Administration should suffice to assure a constitutional majority. These extra votes are likely to come from a disintegrating Left, which has seen the Progressive Socialists as good as vanish, and the Socialists split, with Oleksandr Moroz’s erstwhile colleague, Ivan Chyzh, and his fellow schismatics often voting on reform initiavtives. Moreover, a nationally oriented Renewed Communist Party of Ukraine (CPUo) has just been established to challenge Petro Symonenko’s more orthodox line. And while it is still too early to predict exactly what effect the CPUo’s creation will have on the parliamentary Communists, this development potentially adds to the resources the parliamentary leadership and Administration will have at their disposal. In short, as things stand today, with Chairman Pliushch and President Kuchma in tandem over the amendment issue, it will require a marked change in the trajectory of the Rada’s recent evolution - or a different cause - for the political crisis that some commentators predict for later this year to transpire.

IV President Kuchma has stated that any foot-dragging by the Verkhovna Rada will see him take "appropriate" – though unspecified – measures to expedite matters. Presidential critics take this to mean that he will use the perceived moral mandate of the referendum to take the extraordinary step of amending the Constitution, in contravention of the Constitutional Court’s March ruling, by the unconstitutional means of a decree - or that he might even dismiss the Rada.

Indeed, there is a persistent school of thought that President Kuchma has been systematically working for some time to introduce an authoritarian regime under the pretext of accelerating the reform process; that this is the essential element of the much publicized "new" Kuchma; and that the Verkhovna Rada and the Constitutional Court –its June 29 and July 13 decisions notwithstanding – are the last barriers to this tendency. Such an interpretation is superficially appealing. But it cannot explain why a president apparently so bent on subverting the existing system keeps failing to grasp the initiative. Ukrainian democracy, with all of its imperfections, survived the Constitutional Agreement crisis in 1995 and the confrontation over the Constitution itself a year later, relatively intact. Arguing that the president will act in a manner he has failed to do in the past at the next opportunity (in other words later this year) misses the point that chief executives bent on imposing their will act decisively at the first opportunity. No president bent on imposing authoritarian rule would, for example, ever have allowed a constitutional court to reach the kind of decision taken by the Ukrainian Court back in March when it ordered the two most controversial questions (that favored the president) to be struck from the ballot. One only has to look at how deliberately President Alexandr Lukashenko usurped power in neighboring Belarus to see that making the argument portraying a latently authoritarian President Kuchma who is sure to act "next time" has so far been akin to waiting for a Ukrainian political Godot.

President Kuchma is clearly no Lukashenko (or, for that matter, no Robert Mugabe or Alberto Fujimori), or even a kind of political Harry Potter who finds himself having to confront an evil Rada for the general good (although the image does have a certain appeal….). Instead, he has thus far shown himself to be a man often persuaded by some of the more extreme opinions within his inner circle but not always to the point of conviction; comfortable with words such as "democracy" and "market economy" on the declaratory level but not fully with their implications. He is neither the autocrat some of his critics assert nor fully the democrat he often says he is. His presidency to date resembles more an unintended parody of that much talked about (by Ukrainians convinced that their political system must reflect the alleged exceptionality of Ukraine’s heritage and national character) Ukrainian "Third Way"- a reflection of the indecisive, ambivalent mood of the Ukrainian population as attested to in numerous polls: overwhelmingly desirous of democracy and, in almost equal measure, the decisive leadership of a "firm hand." It is not impossible that there might be a Rada –related crisis later this year and that President Kuchma might yet resort to extraordinary means to resolve it. However in life, and in politics in particular, eventually finding oneself in a given situation - or contemplating a course of action – is not always evidence of a premeditated strategy for arriving there.

August 14, 2000

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