Ukraine’s Constitutional Crisis – Analysis and Thoughts after Day 2

Ukraine’s Constitutional Crisis – Analysis and Thoughts after Day 2 by Mykhailo Wynnyckyj for UKL Kyiv-Mohyla Academy

Ukraine is a country that is famous for its corrupt court system where judgments are regularly bought and sold by judges. Yet, paradoxically, in this highly inconsistent judicial environment, fundamental political decisions regularly seem to be left to the courts. One need only recall the fact that the stand-off now called the Orange revolution was essentially resolved in 2004 by Ukraine’s Supreme Court. In an apparent repeat of those events, the resolution of the present disagreement between President Yushchenko and the Parliamentary majority (and the Yanukovych-led government) seems to be in the hands of another judicial body: the country’s Constitutional Court.

For those uninformed, Ukraine’s judicial branch includes 2 separate high courts: cases and appeals involving disputes between individuals and legal entities are heard by the Supreme Court (during the Orange Revolution, candidate Yushchenko launched a suit against the Central Election Commission, and as a private person, his case was heard by the Supreme Court). Cases involving disputes between branches of government as to the constitutionality of legal acts (laws, decrees, resolutions, etc.) are heard by Ukraine’s Constitutional Court. Appeals to the Constitutional Court may be initiated by the President, 45 or more Parliamentary deputies, the Supreme Court, or the Ombudsman. Decisions of both the Supreme and Constitutional courts are final, and cannot be appealed.

Today, 53 Parliamentary deputies officially asked the Constitutional Court to rule on the constitutionality of President Yushchenko’s April 2 Decree dissolving Parliament. Simultaneously, Yushchenko submitted a request to the Court to rule on the constitutionality of the Resolution of the Cabinet of Ministers, passed late last night, which labels the Presidential Decree illegitimate, and prohibits the financing of early elections.

Legally, the Court is obliged to decide whether it will hear either case within 15 days. It is important to be clear on this point: the Court is not obliged to rule on any case within a given timeframe – the law only obliges the judges to decide within 15 days of receiving an appeal whether in principle they will hear a case or not. Hearings on cases that have been opened by the Court can last as long as the judges deem appropriate, and any attempts to accelerate the Court’s deliberations are strictly prohibited by law.

In other words, during the next 15 days (or sooner), Ukraine’s Constitutional Court will decide whether it will act as an arbiter of the current political crisis or not. If it decides to intervene, the crisis could drag out for a very long time indeed.

However, in order to open a case, 10 of the 18 judges of the Court must agree to examine it, and although it is impossible to predict the opinions of the Justices, some speculation is possible. Ukraine’s Constitutional Court judges are appointed according to the following quota: 6 judges are chosen by Parliament, 6 by the President, and 6 by the High Council of Judges. All Constitutional Court Justices are appointed for a 9-year non-renewable term.

Now for the speculation: The 6 judges appointed by Parliament were elected in late 2006 by majority vote, and therefore all are either Party of Regions, Communist Party or Socialist Party functionaries; they are likely to vote in favor of opening deliberations on the petition of the Parliamentarians who have challenged the constitutionality of the President’s Decree. Conversely, the 6 judges appointed by Yushchenko are likely to lean in the opposite direction – i.e. to vote against opening hearings on the case. Of the remaining 6 judges appointed by the High Council of Judges, three (including the Chief Justice of the Constitutional Court) are former Supreme Court judges who served on the other high court in 2004, and were party to the unanimous decision of the Court that led to the third round of voting in the Presidential election at that time. Now, if the above arithmetic holds true, the Constitutional court is currently split 9-9, and therefore cannot open deliberations on the constitutionality of the President’s Decree. Automatically, the Decree is considered valid and enacted: Ukraine votes May 27.

If the arithmetic is wrong, and the Constitutional Court chooses to examine the question of the Constitutionality of Yushchenko’s Decree, one key argument of the President’s legal team may prove difficult to counter: In 1997, the Constitutional Court ruled that the President of Ukraine, in his role as Guarantor of the Constitution and the Rights and Freedoms of the People (Article 102), has the right and obligation to intervene if the Constitution is being infringed. This precedent is a powerful legal justification for Yushchenko’s Decree, and justifies its promulgation – according to his closest advisors.

These same advisors have clearly done a much better job than in the past of planning the seemingly “spontaneous” (or in the words of several members of the Parliamentary majority “chaotic”) events currently underway in Ukraine. At this point it seems obvious that the Yushchenko-Tymoshenko forces have learned from their previous disastrous attempts at improvisation, and have worked things out to minute tactical detail:

1) Two weeks ago, the President signed Decrees that dismissed one of the judges of the Pechersk regional court and appointed a justice more loyal to Yushchenko in his place. Pechersk region is the jurisdiction that all of the central government buildings are located in, and therefore is a key court in which many low-level disputes are often ruled on. Today, this same court pronounced yesterday’s Parliamentary resolution dismissing the current membership of the Central Election Commission, to be illegal. The fact that legal challenges would be heard in the Pechersk regional court was to be expected, and the President made sure that he had friendly backing from the judges in that particular court prior to precipitating the current standoff with his Decree.

2) Four weeks ago, the Presidential Secretariat submitted an application to register a new newspaper to the appropriate government agencies. The registration certificate for “Ofitsiynyj Visnyk Prezydenta Ukrayiny” (Official Bulletin of the President of Ukraine) was issued on March 30, and issue No. 1 was printed today. It’s contents consists only of the text of President Yushchenko’s April 2 Decree. Given the fact that the two official newspapers of the Ukrainian government are controlled by Parliament and by the Cabinet of Ministers, Yushchenko’s team clearly foresaw problems with the publication of the Decree dissolving Parliament (according to Ukrainian law, Decrees are not valid until published by an official government newspaper), and acted accordingly – well in advance.

3) President Yushchenko’s Decree was issued on the day before a planned visit to Moscow during which the President was to meet with Putin. This trip was widely publicized by the President’s press office as a key foreign policy event. Clearly, the Yanukovych government and the Parliamentary majority were not expecting the President to cancel such an important trip, and therefore did not take the rumors of Yushchenko’s intention to dissolve Parliament prior to the trip seriously. In fact, the President’s intention was a very poorly kept secret: last week, I was personally present at a conference where a high-level official of the Presidential Secretariat stated publicly that Parliament would be dissolved on Monday (few believed him at the
time). Nevertheless, the high-level visit to Russia seems to have served as a smokescreen that encouraged the Yanukovych forces not to believe the rumors. On Monday, having achieved the element of surprise, Yushchenko immediately cancelled his trip to Russia. Simultaneously, his Secretariat sent telegrams to all of Ukraine’s oblast governors ordering them to come to Kyiv the following day.

Today, 24 of 27 regional leaders (all local executive branch leaders except the mayors of Kyiv and Sevastopol, and the Prime Minister of Autonomous Crimea) were present in the Presidential Secretariat where they signed a prepared declaration that supports Yushchenko’s Decree, and obliges them to begin preparations for a May 27 elections. Seemingly magically, during their meeting with Yushchenko, the oblast governors were able to locate sources of funding for the elections in their local budgets – thus enabling the upcoming vote to take place regardless of whether the Ministry of Finance cooperates or not.

Given the stakes, let’s hope the President’s team has planned for a variety of upcoming contingencies because keeping the Parliamentary majority off guard seems to be an excellent means of ensuring peace on the streets.

Finally: what happens if indeed the Decree is deemed constitutional, and elections actually occur? What happens if the Orange forces actually win? Have they planned that far ahead?

Sources close to Yushchenko and Tymoshenko claim that both leaders have learned from their previous mistakes, and they have made very concrete (though secret) plans. If Tymoshenko becomes Prime Minister she apparently has vowed (privately) to refrain from the economically disastrous policy of “reprivatization”(i.e. the re-examination of Kuchma-era privatization deals with the intent of nationalizing certain cheaply purchased companies followed by their subsequent resale at auction). This scheme, though popular among ordinary Ukrainians seeking “justice” from the “oligarchs”, led to a complete collapse of investor confidence in early 2005, and to significant erosion of perceptions of the security of property rights in Ukraine during Tymoshenko’s term as Prime Minister.

For his part Yushchenko has promised Tymoshenko, according to these same sources, a post-election government free of the President’s “dear friends” – i.e. those individuals who were sidelined from the Presidential Secretariat in 2005 after being publicly accused of corruption by its former Head, Oleksander Zinchenko.

It is possible that all of the above was relayed by Tymoshenko to the highest of authorities in the US executive branch during her trip to Washington two weeks ago, and to EU officials during her visit to Paris last week. If in fact the Orange forces have planned events as masterfully as they seem to have, and if in fact Western governments already know of such plans, then these same governments have an obligation to send a very clear message to the Yanukovych camp: violence will not be tolerated, and any moves toward advocating violence will only result in a Belarus-style reaction by the West (i.e. seizures of bank accounts, visa refusals, etc.).

Furthermore, the leadership of the Party of Regions (particularly its primary financier – Rinat Akhmetov, Ukraine’s richest individual) needs to be sent a clear signal from Europe’s business and political elite: peacefully agreeing to early Parliamentary elections will serve to legitimate the Party of Regions as a European political force, and will foster the acceptance of its leaders by western elite circles.

During the disputed Presidential election of 2004, no one in the Orange forces seems to have planned beyond the initial few days of the Revolution. Recognizing the improvisation, the West played a key role both in resolving the crisis (through roundtables, and informal pressure on the Kuchma regime), and in ensuring a fair election during the third round of voting (by sending thousands of international observers). Two years later, Ukraine needs help again, but this time the Orange leadership seems to have learned from its past mistakes. Will the West respond as it once did? Or is the unfinished saga of the peaceful Orange Revolution destined to degenerate into violence and/or authoritarianism during its (well planned, but belated) final act?

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