ANALYSIS: Constitutional debate begins in Ukraine's Parliament (05/05/96)

ANALYSIS: Constitutional debate begins in Ukraine's Parliament

by Markian Bilynskyj

On April 17 the Supreme Council finally began to debate in plenary session the draft constitution of Ukraine approved by the Constitutional Committee. The rancorous debate on what is essentially a modified presidential draft begged comparison with the futile military campaigns of World War I: heavy barrages of rhetoric and frontal verbal assaults against the opposition's well-established positions and convictions - with little or no progress. A genuine compromise continues to lie somewhere out there in political no-man's-land.

The week ended with the Parliament voting to create a compromise, or accord, committee - no easy task in itself - that will attempt to resolve the outstanding differences when the session resumes.

A temporary, unofficial initiative group consisting of 10 Parliament factions - minus the Agrarians and Communists but with the Socialists participating as observers - had in fact already gone a long way to-ward reconciling the majority of the draft's provisions. But a highly charged meeting of the Supreme Council's presidium on the eve of the session focusing on the procedure for reviewing the draft confirmed that the floor debate would be far from temperate.

Convinced that developments in the Russian presidential campaign can only bolster their domestic position, the Communists tried to delay the proceedings. On the morning of the constitutional debate, they refused to register - thus preventing a plenary quorum - unless the approximately 60 deputies simultaneously holding positions in the executive branch (and sure to vote for the official draft) were stripped of their parliamentary mandates. (This step had originally been used by the center-right just after this Parliament was elected in 1994 to block the then more monolithic left. The tactic had then been referred to as "constructive destruction."). They were persuaded to register only when Parliament Chairman Oleksander Moroz proposed a compromise in the form of a letter to President Kuchma asking him to explain his stance on the matter by May 20.

(The Communist argument, which draws upon the Constitutional Agreement, is not without merit. Their opponents counter that the sanction should also apply to the left, many of whom double as enterprise directors and heads of collective farms. Neither side has been willing to concede anything on the matter. And with the constitutional debate raising the stakes, a compromise seems even further away.)

Essentially, the Parliament decided to treat the draft constitution as an ordinary piece of legislation. Procedure, therefore, required that it first examine the four alternative draft constitutions, including one from the Communists as well as the 1993 draft constitution (re)introduced by a social-democratic deputy. But the official draft was always the principal point of reference. Among the major points of contention were: the form and function of the Parliament, particularly whether it should be a uni- or bicameral body; the role of the presidency; the correct legal definition for the population of Ukraine; the status of the Russian language; and whether the constitution should contain references to rights versus guarantees in, for example, health, education and employment.

At present, the most likely scenario for the constitution's adoption is that following approval by the Supreme Council (by a straight majority vote) it will then, in consultation with the president over the wording, go to a national referendum. However, it is not at all clear yet how many readings the draft will require to win the Parliament's approval. That President Leonid Kuchma is preparing for such an eventuality became clear three weeks ago when he instructed the Regional Council, consisting of the powerful oblast council chairmen, to intensify public awareness efforts. Two weeks ago the president also issued a decree creating a committee charged with explaining the draft's content to the population. Government sources claim that hundreds of citizens' groups have already formed spontaneously and are actively debating the official draft (despite the fact that the final version of that draft has not yet been agreed to).

Under the scenario currently taking shape, any draft constitution will require 209 votes to progress beyond the Parlia-ment. While more attainable than the 301 votes that a constitutional majority would have required, this total might still prove difficult to reach. The working compromise reached by 10 factions within the unofficial initiative group should transfer more or less intact to the compromise committee. But it will still require an unprecedented show of discipline on their part to deliver the necessary vote, particularly with some of the center/left-center factions, such as the Interregional Group and the Independents, wavering.

The nature of the coalition supporting the official draft is, as has always been the case on important issues, very conditional. Many center-right deputies appear to be siding with the president principally because - although they believe his draft is far from ideal - it is, as the work of the Parliament initiative group has shown, open to revision. Moreover, even given the weaknesses of the provisions on human rights, the judiciary and, most strikingly, local government, the official draft is much more palatable than the left's alternative.

Coalition politics make the potential role of Chairman Moroz significant. He recently spent a week in the hospital, reportedly recovering from acute hypertension. Some commentators argued that Mr. Moroz's indisposition had more to do with politics than with his health. Interestingly in this regard, at the end of that week the Socialists became observers in the initiative group, thus signaling that perhaps a sufficient number of them might, at Mr. Moroz's prompting, eventually throw their weight behind the official draft. That this might happen was suggested very strongly by the events on April 20 when the more radical Socialists split away from Mr. Moroz's wing to form the Progressive Socialist Party of Ukraine.

It is difficult at present to see the Communists and Agrarians conceding anything. In fact, there appears to be a growing opinion among the left that the ideal option would be for the constitutional process to become bogged down to the point where the president might be provoked into dismissing the Parliament; the argument being that should parliamentary elections be held later this year - or early next - the left would make considerable gains. But it is unlikely that the Kuchma administration would swallow such bait. Moreover, the administration realizes that given current social and political realities, the Parliament must be seen to be an integral part of the formalities in order to enhance the legitimacy of the constitutional process, and, hence, of whatever draft is eventually adopted. Thus, if the constitutional debate becomes deadlocked and the needed vote proves impossible to achieve, the administration may resort to the expedient that eventually forced passage of the Constitutional Agreement: painstakingly, individually, cajoling enough deputies into putting their signatures to the draft constitution for the vote to become a formality.

Even allowing for the fact that time-horizons can be very compressed in the often seemingly four-dimensional world of Ukrainian politics, a draft constitution offered jointly by the president and the Supreme Council would undoubtedly, for the foreseeable future - defined in this case by the Russian presidential elections and a little beyond - receive the overwhelming support of the population. (The Crimea being the obvious candidate should there be any regional exceptions.)

The adoption of a constitution will be an important landmark in Ukraine's search for a post-Soviet identity. Nevertheless, its significance should not be overstated. The constitution cannot and will not in and of itself resolve satisfactorily the very deep, persistent differences within the Ukrainian political elite(s) and society in general. Paradoxically, historical precedent suggests that it could even exacerbate some of these tensions. The American Constitution, for example, did not resolve the arguments over states' rights - probably the most divisive issue confronting the young republic. If anything, the Constitution focused, consolidated, and even sharpened the seemingly intractable differences by allowing each side to frame its arguments with reference to the Constitution. This argument was only eventually resolved through force of arms.

The point here, of course, is not that the political differences in contemporary Ukraine can eventually only be resolved through armed conflict, but simply that a constitution is a covenant whose effectiveness - or lack thereof - is crucially dependent on the broader political culture's contemporary characteristics. The fact that the enlightened - on paper at least - Soviet Constitution of 1937 was emasculated in practice by Stalinist political culture further supports this argument.

The major shortcoming of post-Soviet Ukrainian political culture is a persistent, pervasive and often willful lack of respect for the rule of law. Now surprisingly therefore, politics are still more reflective of byzantine Soviet practices than the "Rechtstaat" practices most Ukrainians would like to see their polity develop. Cov-enants are generally observed only in the breach. The major flaw of the Constitution-al Agree-ment, for example, has been that it lacks a mechanism for imposing and enforcing sanctions against violations in the shape of a truly independent, respected judiciary. Such an environment cannot but hamper the effectiveness of the constitution, either. Under such circumstances the character and commitment of the presidency - the strong-est political entity in contemporary Ukraine and one that should soon become stronger still - will be the crucial factors in determining the success of Ukrainian reforms.

Again, none of this is to imply that a rule of law environment cannot eventually evolve; it is simply to point out that the development of post-Soviet Ukrainian political culture has not yet reached the point where legal covenants play the same dominant role they do in mature Western democracies, superficial similarities notwithstanding.

One of the more unfortunate aspects of the constitutional episode so far has been the absence of mature political parties and the lack of an underlying consensus about where Ukraine should be going. This has meant the debate has all too often resembled little more than a dispute over what kind of institutional arrangements will best serve the interests of those elites currently wielding the levers of state power. There is an almost obsessive jostling for advantage. This quest to consolidate the status quo has led, for example, to an inordinate amount of time (and space) being spent on arguments about who has the right to appoint and dismiss whom and under what circumstances - important issues, but surely not central to the long-term general welfare.

Markian Bilynskyj is director of the Pylyp Orlyk Institute for Democracy based in Kyiv.

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