COMMENTARY: Finally, a constitution is born (07/07/96)

COMMENTARY: Finally, a constitution is born

by Markian Bilynskyj

Concluding a marathon session, the Supreme Council of Ukraine adopted a post-Soviet constitution in a purely formal third reading by a vote of 315 to 36. Essentially, the version adopted was the one passed in the June 4 first reading, to which the president had given his unqualified approval.

Following a standing ovation and the playing of the national anthem, Parliament Chairman Oleksander Moroz thanked everyone for their hard work including, with unmistakable irony, President Leonid Kuchma, for his "original contribution" to the constitutional process. While the outcome was never in any real doubt, the speed and manner with which matters were eventually resolved was breathtakingly simple.

When live transmission of the session resumed at approximately 8:20 a.m. on Friday, June 28, Mr. Moroz immediately began justifying developments by announcing to the listeners that contrary to the "lies" propagated by much of the media recently, the Parliament's hyperactivity had not been prompted by external pressure, but had been motivated by a common commitment to the welfare of independent Ukraine. But, given even the publicly available facts, neither the content nor the tone of delivery were convincing.

The second reading of the constitution had required an article-by-article review and approval by a constitutional majority of 301 votes. The left had initially insisted that amendments to the text be made on the basis of a simple majority vote. Such a procedural change would have allowed them to substantially alter the draft text. The rejection of this proposal meant that the left had no real option but to implement the political equivalent of a scorched earth policy to frustrate as far as possible the adoption process in the hope that sometime, somehow circumstances might again present them with the opportunity to take the offensive in a more constructive manner. Given the circumstances, then, it came as no surprise that the second reading proceeded at a glacial pace.

However, by last weekend it had become absolutely clear that the second reading was going nowhere. Although constitutional majorities were cobbled together on some points, the most fundamental - and hence most controversial articles (on, for example, the national symbols and anthem, the state language and property rights-particularly the question of land ownership) were skipped over when it became clear that no compromise could be reached. Although the left presented this state of affairs as a constructive, albeit difficult, search for a compromise, the center-right and the administration viewed it as a charade designed to create an impression of progress behind which the constitutional process was actually being slowly strangled.

To finally force the issue, the president late on June 26 issued a decree stating that a referendum would be held on September 25 on the draft text that had passed the first reading. The decree made it clear that this step had been taken after consultations with representatives of those factions and parties constituting a Parliament majority, the influential Regional Council (consisting of oblast council heads), and, ominously, the National Security Council. Indeed, the latter had apparently recommended that further delays in adopting the constitution would pose a grave threat to Ukrainian national security.

This far from subtle hint that the security forces were lined up behind the president (just in case) was also accompanied by rumors that a decree dissolving the Parliament had already been signed by the president. In threatening to hold a referendum that the left was almost certain to lose the president resorted to a gambit that had served him so well approximately a year ago when he forced the adoption of the Constitutional Agreement by exactly the same means.

[Whether the president would have followed through on the threat is now obviously an academic issue. The point, perhaps, is that everything was put in place to make the threat of a referendum fully credible, and hence effective. However, although the president declared an apparent willingness to by-pass the Parliament and go directly to the population, the history of the confrontation over the constitution strongly suggests that the president was willing to go more than half-way to find a compromise with the Parliament and to adopt the constitution via the legislature. Understandably so. After all, working with, or manipulating a malleable representative body - in confrontations with which the president has had 100 percent success rate - is far simpler and more predictable than having to depend on potentially volatile public opinion, regardless of what opinion polls indicated. Moreover, a referendum would have allowed the left to publicly - and defiantly - display their strength in some localities by delivering an anti-referendum vote in certain parts of the country and hence damaging the image of national unity and consensus that the Kuchma administration has been trying to cultivate.]

It is said that nothing concentrates the mind more wonderfully than the premonition of a hangman's noose or a firing squad. The administration's June 26 activities effectively broke the left's resistance as a kind of institutional survival reflex kicked-in. Had the Parliament shown itself incapable of adopting the constitution it would have rendered itself politically irrelevant to the point of making its dismissal a formality.

Although some left deputies believed - and continue to believe - that the next Parliament would return a proper working majority for the Communists and their allies, the parliamentary hiatus would undoubtedly have seen the Parliament, but especially the left, not only lose the perquisites of office but also cede control over, most significantly, the privatization process to the interests represented in the executive branch.

But why now? Why was the president so determined to force the adoption of the constitution immediately? The short-term reason lies in the fact that after the June 28 plenary session less than two weeks remained until the summer recess. This would have meant Ukraine confronting a likely more assertive post-election Russia (regardless who emerged victorious) without having gotten its internal affairs in order with all of the potentially negative consequences that may have entailed for its sovereignty. The importance of this concern should not be underestimated.

Secondly, and much more significantly in the long run, the administration understands that genuine, structural reforms cannot be delayed any more if Ukraine is to be adequately prepared to face the next winter.

It has become something of a cliché to point out that every winter poses a challenge to Ukrainian sovereignty. But there are serious grounds for concern that the forthcoming winter could actually witness the first serious social unrest in Ukraine since independence. The government, for example, has still not resolved the salary arrears crisis that led to a miners' strike last winter, which damaged the prospects for the Ukrainian economy's projected recovery this year. Moreover, dissatisfaction has spread to other generally more placid professional and social groups, such as teachers and pensioners. (Failure to adequately address this pressing matter was the principal reason behind Prime Minister Yevhen Marchuk's dismissal.) Without the kind of structural reforms that the constitution theoretically permits, last winter's problems, many government officials fear, could return with a vengeance.

The president has emerged as the clear winner from the frantic activity of the past approximately 36 hours. However, whether his victory is as unambiguous as it seems at first glance is far from clear. President Kuchma's track record throughout the constitutional process suggests a man who never quite knew what he wanted but was absolutely certain about what he did not want: a Supreme Council, or more generally a system of councils, that was configured to exercise an almost suffocating control over the executive branch, rather than the classic oversight functions of a genuine Western-style Parliament.

Another big winner was Mr. Moroz, who - within the space of 12 or so hours - shot from being a political creature staring extinction in the face to something of a parliamentary statesman, relentlessly pushing for the adoption of the Constitution out of, in his own words, higher motives transcending narrow party concerns.

Whether he would have undergone such an epiphany without the president's rude reminder of both his and the Parliament's extreme vulnerability is a question that Mr. Moroz might wish to avoid even in moments of private reflection.

The real loser today appears to have been the left and the Communists in particular. It is very tempting to assert that the latter are finished as a national force in their current incarnation. However, the fact that the Constitution was rammed through out of political expediency with almost minimal attention paid to its language means that there is plenty of scope for mischief. The left are bound to try to exploit the Constitution's many inherent weaknesses and contradictions in the near future. But their tactics are again likely to be generally negative rather than goal-oriented in a positive sense. Moreover, it would come as no surprise were the June 28 defeat to lead to a series of enervating internal power struggles.

The real question, of course, concerns what impact the adoption of the Constitution of Ukraine will have on the population as a whole. The banal but correct reply has to be: "pozhyvemo pobachymo" - or let's wait and see.

Markian Bilynskyj is director of the Pylyp Orlyk Institute, an independent public policy, research and information center located in Kyiv that is supported by the Washington-based U.S.-Ukraine Foundation.

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