Constitutional self-deception

Ukraine is rapidly following the footsteps of Asian or Latin American countries. Yanukovych’s constitutional reform envisages coming back to a superpresidential republic, stepping into a post-Soviet reality where most decisions are made by autocrats. In fact, nothing else was to be expected from Yanukovych’s presidency, considering his and his sycophants’ banking on the iron hand. Putin-like powers, once vested in the head of state, tend to expand ad infinitum, setting the overall tune in the country, with the president’s unaccountability turning into irresponsibility, and his popularity into self-deceit.

THE MORE POWER YOU HAVE, THE MORE YOU WANT

While having de facto control over all branches of power, Yanukovych wants the irksome political reforms abolished, and a return to Kuchma-style practices. This desire is partially accounted for by the psychological trauma of the Maidan, which continues to haunt him. His retinue capitalizes on these feelings of hurt, convincing him that it is necessary to reinstate Ukraine’s second president’s autocratic powers. Yanukovych basks in the memories of Kuchma’s omnipotence, especially since he sees that he is in a better position than his former boss. It is true that Yanukovych is at the top of a solid vertical chain of command as the leader of a strong, rich, and tenacious party, something Kuchma always lacked, and which ultimately caused his downfall. Yanukovych may well harbor the illusion that he will eventually slip from under their control, and become a truly independent politician after being vested with the coveted powers, aided by his Parteigenossen. This scenario might be possible. However, due to the man’s character and modus operandi, it is not optimal for Ukraine.

Even now that Yanukovych appears to have become omnipotent, quite a few politicians and analysts opine that he isn’t an independent decision maker yet. His dependence on the Firtash-Liovochkin group is clearly apparent, although this group may be eventually replaced by another one. Rinat Akhmetov can also expect to see his influence on Yanukovych reinstated, as can Andrii Kliuiev. Yanukovych doesn’t want to bother with the practical aspects of presidency, so he is unlikely to discharge even effective controlling functions, something Kuchma did quite well. In other words, the 1996 constitutional model was good for Kuchma, but not for Yanukovych. The current head of state can wreak havoc, whether he remains under the control of an oligarchic group, or attempts to rule this country single-handedly.

Yanukovych’s current attempts to assume full leadership may be sincere or just a campaign stunt. At this stage he is being skillfully manipulated, prompted to make the decision to maximize his presidential powers, which is simple and logical enough for him. This is how his closest associates expect to assert and enhance their influence on Yanukovych. Herein lies one of the basic distinctions between Yanukovych’s and Putin’s political models.

WHY UKRAINE IS NOT RUSSIA

Russia’s big business helped Putin come to power, in order to retain its influence and financial independence. Almost instantly the tail began to wag the dog. Russian oligarchs knowingly shared their power with the law enforcement agencies, clandestine organizations, and the military. They resolved the Chechnya issue so that these agencies would find themselves in a stable position. Then they proceeded to run the country, leery of encroachments on the part of external and internal enemies, and focusing on extracting as much money as possible from Russia’s vast natural resources. Nevertheless, those law enforcement agencies, clandestine organizations, and the military — hired as watchdogs and managers — inevitably grew tired of being vassals and started going after their employers. After an example was made of Khodorkovsky, Russia’s big businesses had to make a nonaggression pact with the special services and agree to shared administration. With time the system of delimitation of political power was turning Russia into a police state, in which the power structures began to act as leaders rather than subordinates. This resulted in Dmitry Medvedev’s presidency — an attempt to stop Russia from falling under an FSB colonel’s absolute rule.

At this stage the confrontation between Putin’s and Medvedev’s groups — rather, between big business groups that had bet on different members of this tandem — became increasingly obvious. Russian oligarchs tried not to wash their dirty linen in public by putting forth the interests of a certain group. Their private-business-state-partnership and system-corporative pattern makes this impossible, because it may result in turf wars that will inevitably weaken their oligarchic positions and help the power structures grab control of everything, thus turning the Russian Federation into an outright dictatorship. Although there was an analog of this kind of Oligarch under President Putin — namely, Abramovich — the man was most likely a go-between in the money-laundering scheme, a liaison with Western capital, who never wanted to run Russia behind the president’s back or on his behalf. All his might notwithstanding, he was content with his anecdotic “Chukotka mayor” status. No such favorite intellectuals in sight among Medvedev’s capitalist sharks.

Add to this the fact that Russia’s natural monopolist is Gazprom, so that control over Russia’s main assets explains the inter-tandem confrontation in Moscow. In Ukraine, the situation is simpler, more trivial, which makes it especially dangerous for this country, especially in the presence of the Russian factor. Apparently, none of the Ukrainian oligarchs has become any wiser. They still want to be the tough guys in the neighborhood, an obsession among certain boys before they grow old enough to know better. Firtash makes no secret of his desire to restore his monopoly on the gas market, and that he wants more than that; he wants revenge for what he suffered during last year’s gas war with Russia. At the same time, the head of the Security Service of Ukraine (SBU) Valerii Khoroshkovsky happens to be a member of this group. He wants to use Russian methods of dealing with the opposition, media, and civil society elements that took root, however weak, under President Yushchenko. This copycat tactic of our clandestine agencies leads one to conspiratorial suspicions and betrays the current president’s milieu’s inability to think even two moves ahead. Their determination to get the upper hand, forcing Ukraine to play the game by their rules, serves to rally the remaining groups of oligarchs against them. However, these groups appear determined to solve their problem using the good old backstage methods. In other words, before long there will be some hullabaloo about the Ukrainian head of state being manipulated. The winner of this campaign may be annihilated, as an economic actor, if not physically. This will, of course, affect the ruling party’s image, as well as Ukraine’s domestic and foreign policy.

LOOKS GOOD ON PAPER…

That is precisely why the reinstatement of powers vested in Yanukovych a la Kuchma, which now seems inevitable, may turn out to be easier said than done. Moreover, the consequences, from the standpoint of legitimacy, may prove different than anticipated, primarily because the law has no retroactive effect.

Revising 2004 constitutional amendments is rooted in breaches of the established amendment procedures. The Constitution of Ukraine has a clear take on such procedures. The Verkhovna Rada (VR) must vote for the political reform bill twice, during two sessions, with the second session requiring two-thirds of the votes. In between these sessions, the bill must be verified by the Constitutional Court. Therefore, the current “backward” amendments must be exercised in keeping with these procedures.

Perhaps the authors of the bill envisaging the abolishment of the 2004 reform believe that the instant the Constitutional Court returns its verdict the situation in Ukraine will go back to December 7, 2004, so no other measures will have to be taken. In fact, proceeding from the primacy of the law, the said procedures will have to be observed with regard to the political reform, so everything goes by the book this time, and the next head of state will not have any reasons for questioning the legitimacy of the 2010 procedures. I believe that the Constitutional Court, the MPs, and all those supporting the idea of revising the Constitution must be fully aware of this.

Also, some experts believe the Constitutional Court has no right to amend the Fundamental Law, that it can only pass rulings on the constitutionality of some or other documents. Among these experts is Mykola Onyshchuk, ex-Minister of Justice of Ukraine (2007-10), and Volodymyr Lytvyn, albeit with his own arguments. He wants the political reform abolished by the VR, so as to once again stress his role in the decision-making process, considering that his personal and political influence has been practically reduced to nil. Submitting this bill to the VR will allow the MPs to stage a gala show haggling over their powers. Considering that the VR is where one finds Ukraine’s richest and most influential individuals, working with them over this bill will take quite some time. Counting on their obedience, especially on that of the “carcass coalition,” during two VR sessions, is very risky and unreliable, the more so that the local elections are forthcoming, and their outcome will have a strong influence on the MPs’ goodwill.

To avoid making a deal with the VR, Yanukovych may order this parliament to be dissolved, on the strength of the previous Constitution’s clause about the next election having to be carried out in 2011. If he does so, he will face opposition within the coalition, as no one will want to vacate his seat in parliament ahead of time. They would be willing to prolong their term until 2015, so “bribing” the VR by prolonging its term is a very realistic scenario.

Most importantly, all lawyers, among them Serhii Kivalov, the most outspoken member of the Party of Regions, stress that the problem of adjusting the Constitutional Court’s possible ruling to the current political realities, and to the fundamentals of legislation in general: “The president of Ukraine will be vested with new powers only in keeping with the 1996 Constitution, after he wins the campaign following the abolishment of the political reform.” This is a meaningful statement, implying at least that Kivalov is not a member of a group interested in enhancing Yanukovych’s jurisdiction “here and now.”

The current head of state will have to be content with the old powers vested in him until 2015. There is simply no constitutional alternative, other than blatantly pushing decisions through the VR by openly combining violence with bribery. This would require the establishment of a coalition with 300 obedient votes, but without the communists and Lytvyn’s men, considering that they would be opposed to the idea and would try to capitalize on a possible parliamentary crisis before the election campaign. Thus, in order to implement the reform another problem will have to be solved, namely that of expanding the coalition to 300 votes and guaranteeing its 300-vote loyalty during the two VR sessions.

So perhaps making a deal with the Ukrainian Parliament, by securing its integrity until 2015, would be a better idea? In this case, however, Ukraine would face a negative response from the West, as this stand would be at variance with the underpinning principles of law. The VR’s new term — and that of the head of state — could be legally valid only after the next elections.

It is also true, however, that another interesting scenario could be played out, with the Ukrainian MPs first being duped into doing as told by the promise of a prolonged term in parliament, then receiving the expected election results, whereupon the VR would be disbanded, presumably in accordance with the principles of democracy. The new VR will be elected under the new rules, and then the head of state will be vested with new powers. However, the hitch remains the same: the president will be bound by the old constitutional clauses. Have the authors of this top-notch scenario considered this option?

NO STABILITY ON THE HORIZON

Moreover, this constitutional reform will only serve to increase instability on the upper echelons of power. After losing control over the head of state, the groups of oligarchs will have to fight each other using all possible means, taking advantage of the enemy’s every mistake. Practically, all of them are against allowing Russian capital access to the Ukrainian market, which would become possible if and when the Firtash-Boiko group gets the upper hand. As a go-between, Firtash wants a stable, clear-cut vertical chain of command where he can have his way. Other groups that are interested in exporting their products and having normal relations with the EU and US obviously have different objectives in mind.

When implementing the 2004 constitutional reform, Ukraine couldn’t help looking back at Russia, where Khodorkovsky was already in jail. This reform was meant to secure the rights of Ukraine’s big business, the more so that the Orange Revolution was a preventive rebellion on the part of small-time oligarchic groups that were removed from power — their way to protest a single clan attempting to monopolize power and property. Now this clan is once again showing its teeth, including against itself.

It is common knowledge that, given our conditions, the presence of a strong presidential regime implies a redistribution of property, the more so with the head of state being manipulated. When Yushchenko was president, none of this mattered because he dutifully honored his commitments toward those who had secured his office and who ordered reforms. The backstage system of restrictions and counterbalances in the hands of various oligarchic groups precluded a large-scale expropriation for anyone’s benefit. At the same time, this brought forth the problem of political administration. Yushchenko actually let the oligarchs run his country. The current problem is to keep this system without allowing Ukraine to turn into an authoritarian regime. Here our top-notch businesspeople who do not belong to the Firtash group are not sure about what to do next.

On the one hand, they aren’t against the reform, expecting to win the war with their adversaries for the president’s ear. On the other hand, reinstating Kuchma’s powers would ensure the influence of a single group for God knows how long. Moreover, there are no guarantees on the part of Yanukovych. All attempts to bind him with commitments are apparently abortive. After he is vested with these coveted powers, he will go through the motions of honoring his commitments, if only to prolong his presidency and stabilize his ratings. He will then be in a position to blame the Cabinet — or a given ranking bureaucrat — for all the regime’s failures, saying they/he “have/has been throwing monkey wrenches into the works of our living standards.”

There is no telling whether Yanukovych is prepared to finally succumb to the wishes of his closest associates by giving them carte blanche to protect him against any encroachments on the part of his oligarchic comrades in arms. If he is, if he does, then we will have a figurehead president. Otherwise, he will prove a purposeful autocrat. Neither option is acceptable for Ukraine.

Even the current version of governance in Ukraine threatens to destroy the last vestiges of economic independence. Vesting the current head of state with the kind of powers Kuchma enjoyed may well result in a systemic crisis — the exact opposite of what the current top-level vertical chain of command wants. This crisis may have several phases, depending on the potential of the parties concerned, but even now it is clearly apparent that there will be no stability. Vesting Yanukovych with Kuchma-style powers will make the overall [domestic political] situation practically uncontrollable while bolstering repressive measures against the critics or any other potential enemies of the existing system.

WRONG, WHICHEVER WAY YOU LOOK AT IT

Be that as it may, Yanukovych won’t be able to keep a sensitive finger on the pulse of daily political management. He will be needed only as an ultimate punitive tool, as a symbol of that kind of “law and order” which is so close and dear to his electorate. He will continue being useful as that symbol for a while, like Brezhnev was, given that he held no real power. Unlike Kuchma, Yanukovych can’t be described as an adequate manager. He is unable to cope with a big country that is almost evenly divided into two mental paradigms. Hence his desire to simply act as a “thief in law” who keeps a particular prison camp/jail under control [Soviet style, which often meant collaboration with the chief warden]. This kind of governance implies regular cadre replacements, so as to make sure everyone is aware of the iron hand upstairs. This hand would mete out punishments only to those who have been blacklisted, or who had fallen prey to the ruler’s personal wrath.

Unless he learns to manage this country, Ukraine will be run by king-for-a-day executives — the ones who came up with the reform idea. Such temporary executives are probably the most dangerous of all those who have been in control of Ukraine’s decision-making process, because their clumsy performance can only produce negative results. Under the pretext of the president’s new powers they may well take over the country. This will be applauded in Moscow, albeit only by one power player.

Strange as it may seem, Moscow doesn’t need a strong and independent Yanukovych. Turning him into Lukashenka threatens a sequel in the national independence series. What is left to be done is strengthening the in-power status of the Ukrainian president’s current retinue and keeping this status for as long as possible, so that Ukraine can actually be ruled by the Kremlin’s true allies, rather than by an outwardly pro-Russian Yanukovych. However, it is hard for Moscow to keep track of, let alone control, all the wheelings and dealings on Ukraine’s top oligarchic echelons. Undisguised support of the openly pro-Moscow members of this oligarchic community will antagonize the rest. In other words, they will bank on other leaders who will play a moderately patriotic game. The casting is on, with many nominating Tymoshenko. The winner will be announced in 2015.

Yanukovych’s failure to establish an outright police state in Ukraine before this deadline will be a complete fiasco, considering that one-third of the population won’t accept him on what may well be described as the subconscious level, with another third feeling “grateful for a sudden increase in living standards.” The remaining rock-solid one-third of the electorate in the south of Ukraine won’t secure his victory five years from now. If these voters are shown a freshly groomed younger and smarter leader, I think they would avert their attention from the old autocrat quickly enough, given that he isn’t likely to establish law and order in this country anyway. Let him try to start by keeping the Ukrainian city streets as tidy as they are in Belarus, keeping the foreign inland investment climate as inviting. Russia’s glaring poverty and rampant corruption are mitigated by oil dollars and brainwashing verbiage about its imperial grandeur. Nothing of the kind in Ukraine. Obviously, the use of violence, rigged elections, and Tabachnyk’s humanitarian “achievements” won’t get this country anywhere.