Critical Analysis: Hope for Ukrainian Democracy with the Parliament and the Protesters

Major upheaval in the Ukrainian government followed fiery and deadly protests in Kiev’s Independence Square last week.  Parliament ousted President Viktor Yanukovych and declared a new interim president.  Two groups, members of parliament (“MPs”) and hoards of protesters, played an integral part in the changes in Ukraine.  Maintaining the tentative peace in Ukraine depends in part on whether parliament’s actions over the last week carry the force of law.  One important issue is whether parliament’s reversion to the 2004 Constitution this weekend was legal; the 2004 Constitution provides for expanded parliamentary powers and diminished presidential powers.  This article first discusses the protests and revelations about the ousted president to provide context for parliament’s actions then analyzes the role of the Ukrainian Parliament moving forward.

Protesters occupied Independence Square in Kiev since November 2013, when President Yanukovych abandoned a massive deal with the EU in favor of a stronger connection with Russia.  Protests quickly expanded to include criticism of “corruption, human rights abuses and calls for Yanukovych’s resignation.”  The protests fluctuated in size over the last three months.  One day in December, “at least 300,000” protestors demanded the resignation of President Yanukovych.  The protesters come from various parts of the political spectrum, from current MPs to violent radicals.  Most protesters initially remained committed to nonviolence, until allegations that police killed more than 70 protesters between February 18th and February 20th fundamentally changed the protests.  One report on February 20th describes white collar protesters adopting violent methods, such as a computer programmer who joined a fighting unit and a phone company manager who provided supplies for Molotov cocktails.  Ukraine is a young democracy, dating back to the fall of the U.S.S.R. in 1991.  The violence during protests in Kiev last week is unprecedented during this period of democracy.  Instead, up to this point, the citizenry has used peaceful protests to express disapproval of politicians.  For example, the generally peaceful Orange Revolution in 2004 occurred after claims of presidential election rigging and resulted in a rerunning of the election.

Independence Square on February 20th as anti-government protestors clash with riot police. Image Source: AFP

Independence Square on February 20th as anti-government protestors clash with riot police. Image Source: AFP

On Friday, February 21, President Viktor Yanukovych seemed likely to stay in office until December under the terms of a compromise deal.  However, Yanukovych fled Kiev on Saturday, and parliament issued a warrant for his arrest for crimes related to the violence against protesters and financial misconduct.  Parliament put Oleksandr Turchynov, a key ally of recently freed opposition leader Yulia Tymoshenko, in control of Ukraine after ousting Yanukovych.  Parliament declared Mr. Turchynov the new speaker and interim prime minister, then the interim president.  He hopes to form of an interim unity government by Thursday, February 27th.  Mr. Turchynov describes the current economic situation in Ukraine as “catastrophic” and says the economy is on the verge of default.  This precarious economic situation motivated negotiations with the EU in November.  Alongside reports of Mr. Turchynov’s statements about the economy, new details about Yanukovych’s opulent lifestyle emerged after his lavish country estate was nationalized over the weekend.  Reporters combed through financial documents found at the estate, which include these expenses: “Decoration of a dining hall and tea room: $2.3 million. Statue of a wild boar: $115,000. ‘A bribe’: $4,000.”  The estate includes a golf course, a collection of classic cars, a private restaurant shaped like a pirate ship, and a zoo.  Presumably, the link between the empty coffers and the lavish lifestyle will be clarified as investigations proceed.

The legitimacy of parliament’s decisions depends in part on whether the 2004 Constitution, with expanded parliamentary powers, was legitimately reinstated this week.  The failed compromise deal on February 21 included a provision for reverting to the 2004 Constitution.  The 1996 Constitution provides for a more powerful presidency, and the 2004 Constitution provides for a more powerful parliament. In 2010, Ukraine’s Constitutional Court repealed the 2004 amendments and reverted to the 1996 Constitution; thus, the 1996 Constitution was in place leading up to the protests.  Now the question is whether the 2004 Constitution was validly reinstated. Reversion to the 2004 Constitution limits the powers of the presidency in favor of the parliament.  Initially, parliament voted in favor of reverting to the 2004 Constitution as part of the compromise deal on Friday, but Yanukovych never signed that bill.  After the compromise deal fell apart, the parliament voted again the next day.  On Saturday, February 22nd, 325 of the 331 MPs present voted in favor of reinstating the 2004 Constitution.  However, there may be future challenges to the second vote because a 3/4ths majority, 338 out of 450 MPs, is required for a valid constitutional amendment.  Challenges to the second vote may be unsuccessful given the current political climate in Ukraine; distrust of Yanukovych and anger over deaths of the protesters will make a challenge from within Kiev difficult.  Similarly, analysts assume the pro-Yanukovych regions of Ukraine, in the south and east, are more likely seek independence than to seek changes in Kiev.

Irrespective of whether the 2004 Constitution applies, the Ukrainian Parliament appears to be the best institution to run Ukraine until the presidential elections on May 25 because the parliament is a democratically elected body. Half of the 450 seats in parliament are elected on a proportional basis to political parties that win 5% or more of the national vote.  The other half of the seats are elected using “first past the post” single member districts, where individual candidates are elected irrespective of political parties.  The most recent parliamentary elections, last held on October 28, 2012, received mostly positive assessments from international groups.  However, election observers criticized the excessive influence of the ruling party and the absence of two opposition figures, who were jailed following controversial trials.  Nonetheless, the parliamentary elections generally enabled voters to elect ideologically diverse candidates in a free election.  Parliament is made up of various political parties: in the last election, five different political parties each won 10% or more of the seats in parliament.  Still, parliament is imperfect: fistfights between MPs during legislative sessions raise questions about the stability of Ukraine’s parliament.  Some express concerns that parliament’s divergent political beliefs will prevent parliament from functioning as a cohesive body.  Nonetheless, with such dramatic political upheaval over the last week, the Ukrainian Parliament is the only democratically elected governing body in place.  Potential future constitutional challenges, ensuring the formation of Mr. Turchynov’s unity government, addressing the failing economy, and preparing for the May 25 presidential elections all require cooperation within parliament.  Despite the potential difficulties ahead, the parliament is Ukraine’s best option for continued democracy.

Katharine York is a third year law student and a Staff Editor on the Denver Journal of International Law and Policy

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