The Ukraine List (UKL) #410
compiled by Dominique Arel

Chair of Ukrainian Studies, U of Ottawa
www.ukrainianstudies.uottawa.ca
Supported by the Dopomoha Ukraini Foundation
3 April 2007
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**Third political crisis since the Orange Revolution, and by all appearance the most severe. UKL is back in full swing and its student team remobilized –DA**

#1
Late Night Update from Kyiv­April 2-3, 2007
by Mykhailo Wynnyckyj for UKL
Kyiv-Mohyla Academy
mychailo@kmbs.com.ua
For those who are as yet unaware: at approximately 9pm Kyiv-time on April 2, 2007, Ukraine’s President Viktor Yushchenko signed a Decree (‘ukaz’) that dissolves Parliament, and calls for new elections to be held on May 27, 2007.

It is now 2 am April 3, 2007, and Ukraine’s Cabinet of Ministers has just completed a televised meeting during which it officially adopted a “postanova” (resolution) that expressly prohibits the executive branch of the Government of Ukraine – including all agencies and ministries at both the central and regional levels – from obeying Yushchenko’s Decree. The meeting of the Cabinet was televised live, and all ministers except those appointed by the President – i.e. Yatsyniuk (Foreign Affairs) and Hrytsenko (Defense) - spoke in favor and voted for the adoption of the resolution. The Yanukovych Cabinet’s text specifically forbids the enacting of the President’s decree, and supports the previously adopted resolutions of Parliament which labeled Yushchenko’s order to dissolve the legislature as ‘unconstitutional’.

To anyone who is not yet alarmed by the above, I’ll be more blunt: both the Parliament and the Cabinet of Ministers have refused to obey Yushchenko’s Decree – a fact that has plunged Ukraine into extreme political crisis. The resolutions of the Cabinet and Parliament forbid the financing of early elections, and expressly prohibit any and all activities by the executive branch aimed at preparing such a vote. An optimist would call these latest events “a stand-off”, and a pessimist might refer to the current state in Ukraine as a “latent coup d’etat” (either by Yushchenko-Tymoshenko or by Yanukovych-Moroz –depending on your personal allegiances).

Firstly, a comment on the constitutionality of the Presidential Decree: from the point of view of “rule of law” (i.e. decision-making in strict accordance with written statute) Yushchenko’s document is highly dubious. Article 90 of the Constitution of Ukraine expressly enumerates the conditions under which the President may dissolve Parliament. None of those conditions currently exists. The parliamentary majority, and the Cabinet have repeatedly reminded Yushchenko of this fact, and have reacted to the President’s Decree accordingly. One of the final resolutions adopted by Parliament this evening called for the Constitutional Court to rule within 5 days as to the constitutionality of the Decree, and Parliamentarians have every basis to feel confident that the Court will rule in their favor.

On the other hand, Article 8 of the Constitution states that the principle of the “rule of right” (“pravo”) functions in Ukraine. At the time of the adoption of this article in 1996, Parliamentarians debated the final text extensively, and paradoxically, it was speaker Oleksander Moroz who convinced deputies that the formulation “vekhovenstvo prava” (rule of right) was more democratic than “verkhovenstvo zakonu” (rule of statute) arguing that written law may be unjust whereas rights are universally just. In accordance with this principle, Yushchenko’s argument tonight was that the rights of Ukraine’s voters have been usurped by Parliamentarians (elected according to Party lists – not constituencies) who have switched sides from the opposition to the coalition. Article 83 of the amended Constitution states that a majority coalition in Parliament is to be formed through an agreement between factions. There is no mention of individual deputies joining the coalition – as occurred last week when 11 Parliamentarians from BYuT and Our Ukraine defected to the ruling majority. According to Yushchenko, voters must therefore be given a chance to express their political opinion yet again.

To be honest, the President’s legal argument is quite weak, and both the Parliament and the Cabinet of Ministers are counting on the fact that the Constitutional Court will agree. However, it is very unlikely that the Court will rule quickly, and until a ruling is published by the Court, the Presidential Decree dissolving Parliament is considered valid.

However, (yet another “but”), according to Ukrainian law, Presidential Decrees are considered promulgated (i.e. enacted) only after they have been published by one of the two official newspapers of the Ukrainian government. Potentially, a problem could arise here for Yushchenko due to the fact that the newspaper “Uriadovyj Kurier” is controlled by the Cabinet of Ministers, and “Holos Ukrayiny” is the official newspaper of Parliament. The President does not directly control any official newspaper. But, even if this problem is surmounted, and either newspaper publishes the text of the Decree tomorrow, the resolutions passed by Parliament tonight (prior to the promulgation of the President’s text), are still considered valid.

In other words, the President has signed a Decree that dissolves Parliament, but that Decree becomes law only tomorrow. In the meantime, tonight, the Parliamentary majority passed several resolutions that make the enacting of Yushchenko’s Decree difficult at best. For example, the legislature voted to rescind its previous resolutions – passed on December 8, 2004 (during the height of the Orange Revolution) – that dismissed the old membership of the Central Election Commission (widely believed to have complied with the mass falsifications of the 2004 Presidential election), and appointed a new membership of the CEC. In other words, as of tonight, Serhiy Kivalov is yet again legally the Chair of Ukraine’s Central Election Commission (although he cannot actually take up the post because he is now a member of Parliament). Ironically, this decision places a question mark on the legitimacy of the mandates of the current Parliamentary deputies since their election in 2006 was supervised by a CEC that is now considered illegitimate. Clearly, this was not the Parliamentarians intent. Rather, they have created a condition under which early elections (i.e. the enacting of Yushchenko’s decree) has become practically impossible since Ukraine’s current Central Election Commission is now legally illegitimate.

Legal arguments are obviously not a way out of the current crisis. The question now is: what is the way out? Parliamentary speaker Moroz and Prime Minister Yanukovych have demonstrated that they are not going to easily accept a dissolution of Parliament and early elections. Both have publicly called upon Yushchenko not to publish his Decree, or to rescind it quickly. Clearly, neither are options for Ukraine’s already beleaguered President since backing down now would lead to his losing all political clout.

Ukraine’s politicians and journalists have started actively discussing parallels between today’s situation in Kyiv, and the situation in Moscow in 1993 which ended in President Yeltsin ordering tanks to fire on the Russian Parliament. In Ukraine, Yushchenko controls the army and the SBU (Intelligence Agency) which has several special forces units within its hierarchy. Yanukovych, as Prime Minister, controls the Ministry of the Interior which includes the “Berkut” special forces, and the latter, two weeks ago, staged very public demonstrations of their crowd control methods – demonstrations that were broadcast on practically all Ukrainian television channels. According to news reports (later publicly denied by Minister of the Interior Sushko), several busloads of “Berkut” soldiers were on their way from Donetsk to Kyiv tonight. On the other side, during the debate in Parliament tonight, one of the deputies asserted that ammunition was being distributed to several army units – an assertion that was later denied by Minister of Defense Hrytsenko.

I don’t mean to alarm anyone, but the current situation in Kyiv is quite different from that of November 2004. At that time, the population of the capital was united in its desire to change the country’s political direction, and the army and police followed the united will of the people. Today, Kyiv’s population (disillusioned by the aftermath of the Orange Revolution) has learned to live outside of politics – the economy is growing (despite politicians), and so is Kyiv’s middle class. Now, protests are not mass events, but rather gatherings of radicals from both sides.

Combine radicalism on the part of two consolidated groups with mass public apathy, plus add questionable legal/moral arguments (on both sides), and split control of the agencies that control the guns (army, police, intelligence), and you have a powder keg. That’s the current state of Kyiv, and its more than just a little frightening…