11.05.04
Mihail Pogrebinsky

Theses of report on Berlin conference, May 3, 2004

1. Main provisions of the constitutional reform

A) extension of parliamentary powers, creation of legal conditions for the constitutional transformation towards the European parliamentary model in Ukraine:

• the Verkhovna Rada appoints the Prime Minister whose candidature will be put forward by the President as proposed by the fractions of political parties having majority in parliament;

• the bulk of the Government’s complement is appointed by parliament upon submission of the Prime Minister;

• a decision about the resignation of the Cabinet, the Prime Minister and individual ministers will be taken by parliament;

B) limitation of the head of state’s powers, dismantling the autocratic super-presidential system, tailored after Russian models, which gives possibilities to manipulate administrative levers for the benefits of the presidential team;

• the President will affect only the appointment of the Ministers of Defense and Foreign Affairs and also the Head of the Security Service. But here too, parliament shall have a final say and shall appoint these persons upon the presentation by the head of state;

• thus the President shall be devoid of a possibility to control the main part of the law enforcement machinery and the taxation service, which in the post-Soviet countries was the basis for the head of state’s absolute power;

C) greater influence of the political parties, transition to the effective multiparty system:

• as was stated above, it is planned to form the government, which would reflect the electorate’s will. It is planned to compose the Cabinet from the representatives of the political parties that will win the elections;

• the parliamentary elections should be held under the proportional system. Under the conditions that have taken shape it will make it possible to promote the influence of the political parties that won the elections;

• the parliamentary elections should be held under the proportionate system. Under the current conditions it makes it possible to enkindle the influence of the political parties and curb possibilities for the bureaucratic machinery to manipulate the electorate.

2. Who is for, who is against and why

In Ukraine don’t exist influential or organized political forces, which would stand, in principle, against the main provisions of the reform. Furthermore, these provisions were incorporated into the program agendas of all political parties, which have been elected to current parliament according to the party lists. Criticism has been directed mainly against the motives of the reform’s initiators and "hastiness" of conducting it. As for "hastiness", then under the above circumstances ("everybody are pro"), the criticism seems to be phony. The more especially as Kuchma put forward his initiative in August 2002, i.e. more than two years before the presidential elections.

Today the supporters of the reform are:

a) president Kuchma and his political apparatus;

b) pro-presidential political forces ("centrists"), which lean upon their own political parties: the Party of Regions supporting Prime Minister Yanukovich, the Social-Democratic Party of Ukraine (united); the Labor Party of Ukraine, NDP and some others.

c) the left-hand wing of the opposition - the Socialist Party headed by Oleksandr Moroz and the Communist Party under the leadership of Petro Symonenko.

The reform is opposed by:

a) the right-hand wing of the opposition - the "Our Ukraine" movement headed by Viktor Yushchenko. A true reason of the their resistance to the reform lies in that Our Ukraine’s leader, as they believe, has very high chances to win the presidential elections and they do not wish to give up effectively unlimited power in case of elections. Yuliya Tymoshenko and the bloc named after her counts on power’s "a piece of pie", which they expect to receive as a result of V.Yushchenko’s victory in exchange of Tymoshenko’s abstention in a bid for the presidential position.

b) a part of the "centrists", mainly big businessmen, who do not belong to large political parties and were elected to current parliament by majority districts;

c) bureaucratic circles whose position weaken owing to the strengthening influence of the political parties on the government. Parliament speaker Volodymyr Lytvyn, in fact, is their exponent.

3. Will the reform lead to the democratic system of rule?

If one uses the Wolfgang Merkel’s (the Heidelberg University) terminology, as a result of "hybridization of political" domination in Ukraine today there has formed a regime of "defective" democracy. It is neither classic authoritarianism, nor "hundred percent" democracy as understood in Western Europe.

The implementation of the reform weakens authoritative tendencies in the Ukrainian political system. It opens opportunities for transition in the future from the "defective" democracy to the sound democracy. This process will be gradual and one cannot expect that on the day after realization of the political reform Ukraine will conform to all European standards.

One must not rely on the arguments of the adherents of "cultural fatalism", who believe that many cultural standards and stereotypes, intrinsic to the Western protestant-catholic world, are not typical of Ukraine and, accordingly, one cannot expect successful reception within its boundaries of a model of political democracy and effective market economy. One may speak about the issues of such type of reception, but any fatalistic arguments in this context cannot be recognized as relevant.

One of the developers and theoreticians of reforms in Ukraine Oleksandr Paskhaver noted that the starting conditions for social transformation in Ukraine were extremely unfavorable. Influential forces interested in the reforms did not exist at the very outset. Transformation at first was caused, mainly, by the external factors. Under these conditions the reliance on the belief that in Ukraine it will become possible at first to create new sound social and political institutions before a social entity appears, that will have a stake in holding the reforms, was a naïve utopia.

According to Paskhaver "when changes are not a natural result of the society development, but are rather determined by external challenges, side effects and extremely painful social deformations, most likely, are inevitable... A foreign nature of new institutions in an obligate way causes the rejection phenomena. Then, if their introduction is inevitable there comes a stage of their perverse usage, when the users seek to adapt the new institutions to their old stereotypes and habits. At this stage the results obtained from the development of new institutions very often are opposite to the expected ones, while the institutions themselves undergo quite unexpected changes. Finally, in the course of the historical development the adaptation stage sets in. And only then the new institutions start to show their potential")¹.

As O.Paskhaver believes privatization in the field of economic transformation in Ukraine has become such type of a process, which was conducive to the formation of an entity interested in reforms. And only completion of such an entity ("player") secured the possibility for the creation of new social institutions emerging initially in a distorted ("perverse" in his terminology) form.

Drawing an analogy with the political field one may say that only the constitutional reform, stimulating the strengthening of the political parties, creates an entity in Ukraine interested in democratic reforms. Following the emergence of such type of an entity one may expect also the formation of new democratic institutions. To begin with such institutions - a coalition government and strong parliament - will have a distorted ("perverse") nature far from European standards and analogies.

Without a developed party system there cannot be full-fledged parliamentarism. However, there cannot be a developed party system until the parties receive incentives for their development and activities. The main and the only incentive is the fact that a successful party, enjoying the population’s support receives a chance to rule. The political reform aims at creating such an incentive.

4. Chances of effecting the reform before the elections

The chances to effect the reform before the elections increase in the case neither of two principal contenders to the Kiev "throne" has an upper hand right to the time of the elections. Then, possibly, that in order to minimize risks from the possible victory of his opponent they will provide a decisive support of at least will not stand in the way of carrying out the reform.

To date exactly such a situation has taken shape: neither leader of the right-wing opposition Viktor Yushchenko nor Prime Minister Viktor Yanukovich have absolute chances to win, their chances are approximately equal.

5. Chances of the candidates

According to the data of the public opinion polls held in April this year by the Kiev International Center of Sociology (KICS) - one of the most competent Ukrainian sociological services - if the presidential elections are held in the near future then 23% of the electorate would vote for leader of the right-wing opposition Viktor Yushchenko, 16% would vote for Prime Minister Viktor Yanukovich, 10% for Communist Party leader Petro Symonenko and 6% for Oleksandr Moroz, leader of the Socialists. Note that even two months ago the rating gap between Yushchenko and Yanukovich was substantially wider (23% - 11%).

In the event Yushchenko and Yanukovich go into the second round of elections the percentage distribution would be as follows: 33% in favor of Yushchenko, 30% in favor of Yanukovich and 15% against both of them.

These data reflect a conspicuous tendency of the last months for the ascending public support of Yanukovich.

One should take into account that the electorate of the third-ranking contender, in terms of popularity, communist Petro Symonenko, do not hold Prime Minister Viktor Yanukovich in high esteem. Still for them the incumbent premier represents a more preferential choice than leader of the right-wing opposition Viktor Yushchenko leaning on the support of the ethno-national forces. Therefore, provided Viktor Yushchenko and Viktor Yanukovich enter the second round this electorate most likely will vote for Viktor Yanukovich.

Thus at present a typical situation of uncertainty has formed and is characterized by two factors: Viktor Yushchenko still holds advantage, while at the same time Prime Minister Viktor Yanukovich enjoys gradual growth of his popularity.

6. The Reform, presidential elections and external expectations.

The West (Europe and the U.S.) openly sympathizing the Ukrainian right-wing opposition expressed negative attitude to the reform interpreting it, just as Yushchenko, as a method of strong hold on power by the ruling top brass. In this case the content of the reforms was ignored while the criticism was directed exclusively to the motives of the initiators of the reform. My counter arguments boil down to the following:

Really, if the reform was carried out then, irrespective of the outcome of the presidential elections of 2004, a significant segment of power in the period before the 2006 elections would be in the hands of the parliamentary majority. But even today this majority is not controlled by the incumbent president! What will happen if the elections are won by Viktor Yushchenko? Obviously, that he without much pain will rearrange the majority and may have a lot of clout when forming the government. However, at that he will, certainly, have to reckon with the interests of a new majority and agree to compromises. In other words, he will not have those almost dictatorial powers, which today Leonid Kuchma has.

Thus the arguments of the reform opponents to the effect that it deprives a would-be president of power are not tenable. The reform will strip the future president of the dictatorial powers - that is true.

The West having provided a moral support for Yushchenko in the struggle against the reform has actually sided with the foes of democracy and quite possible did more harm than good to Yushchenko himself. Firstly, it will be easier for Yushchenko to win if the reform was carried out (the elections will not make sense of "the winner gets all"). Secondly, if he is defeated (and today it is most likely that it will be so!) he will "lose everything".

***

In Russia they do not have "their own" candidate for the president. Russia does not feel good to Yushchenko. Not so much because of his "pro-Western" orientation (the whole Ukrainian elite is more or less pro-Western), but because of a strong Russia-phobic complex characteristic of much of his team of adherents.

As for the reform the official Russia's stance has not been articulated yet. To my mind Russia, in strategic terms, is interested in democratization of the political system even more than the West due to a very simple reason. In the event the Ukrainian authorities have to reckon with the public opinion then Ukrainian policy will never be anti-Russian. Such has been the public opinion today in Ukraine and it will be such for a long time. This, in particular, means that if the reform is carried out, the Ukrainian authorities simply will have to withdraw their peacekeeping contingent from Iraq.

In a tactical plan it would be much simpler for Putin to deal with a strong pro-Russian leader having authoritarian powers. But, first of all, there is no such candidature for the role of the Ukrainian president and, in the second place, the political situation in our country develops in the direction of plurality of political influence and there are no grounds to hope for any changes in the vectors of the internal political development.

That is why I believe that transition to the parliamentary-presidential form of governance in Ukraine is inevitable.

¹O.Paskhaver, Ukrainian Reforms or Nobody Likes Privatization, Zerkalo Nedeli, no. 34 (459), Sept. 6–12, 2003