EU representatives have failed to stand up against the recent decline of Ukrainian democracy

Moreover, the West has apparently played a certain role in legitimizing the dubious government formation of March 2010. Interestingly, Yanukovych seems to have understood the problematic aspects of the planned takeover of the executive branch of government by the Party of Regions with the help of turncoats from opposed parliamentary factions. According to press reports, a day before the approbation of the Azarov government in the Verkhovna Rada on March 11, the new Ukrainian President consulted the Ambassadors of the G8 countries (i.e. including Russia’s envoy) about whether their countries would accept a government elected by individual MPs, i.e. including deserters from opposed camps, and not by factions. Allegedly, after some controversial discussion, either the majority or all of the Ambassadors gave Yanukovich green light under the condition that the President would ask the Constitutional Court to rule on the issue of the constitutionality of the new government. The Ambassadors, reportedly, also insisted that the Party of Regions would cooperate with other political forces. While it seems that Yanukovych is largely ignoring the latter agreement, he indeed submitted a request concerning the legitimacy of the Azarov government to the Constitutional Court, as demanded by the Ambassadors.

The Ambassadors’ approach to the new President is understandable: They and their governments are, above all, interested in political stability, in Ukraine. And, in Western political systems too, the status of deputies’ popular mandate is not well-defined: Are they free to behave as they wish, or bound by party discipline? If the latter: To which exact degree is the MPs’ freedom of action circumscribed? In the Western context, such questions would be seen as issues to be decided by a constitutional council or court. Review by the Constitutional Court is thus the obvious way to go.

The Remaining “Proto-“ in Ukraine’s Proto-Democracy

Ukraine, however, is not yet a consolidated democracy with a deeply ingrained rule of law. It is a state still in the process of formation, and one of the countries that has, world-wide, suffered most from the financial crisis. Judicial review has started to function in post-Soviet Ukraine, as the Constitutional Court’s intervention during the Orange Revolution showed. Yet, it is not clear whether the Court’s review of the legality of the new Ukrainian government coalition constituted an orderly process that will solve the current conflict between the political camps, as it had done in 2004. Yulia Tymoshenko has already claimed that individual judges of the Court have, allegedly, received as much as $1 million, for a “positive” decision, i.e. for a ruling that legalizes the current government coalition. On April 8, 2010, a majority – 11 of the 18 – of the Court’s judges did provide Yanukovych with a “positive” decision, i.e. ruled that a government coalition can also be formed with deputies not belonging to the coalescing factions.

That is a strange development in so far as the Constitutional Court did already rule on the issue of whether individual MPs may participate in government coalition building. In its decision of 17 September 2008, the Constitutional Court ruled that “only those people’s deputies of Ukraine who are members of the deputies factions that form a coalition can enter the ranks of that coalition. The membership of the people’s deputies of Ukraine in these factions underlines the exceptional role of deputies factions in the formation of a coalition of deputies factions” (“до складу коаліції  депутатських  фракцій  можуть  увійти  лише  ті  народні депутати   України,  які  є  у  складі  депутатських  фракцій,  що сформували коаліцію. Саме належність народних депутатів України до цих  фракцій  відіграє  визначальну  роль  депутатських  фракцій в утворенні коаліції депутатських фракцій”). In view of this ruling, the current government appears as not only illegitimate from a democratic point of view, but also as illegal from a juridical standpoint. Yanukovich’s recent assurances to the Ukrainian public and Western Ambassadors that he would follow the Constitutional Court’s decision always looked empty, in that the Court had already made and published a clearly relevant ruling, in 2008. Yanukovich has been asking the Constitutional Court to either repeat a decision it has already made, or renounce an earlier ruling – both of which would have confused Ukraine’s constitutional order. It would have either introduced the practice of repeat confirmations, by the Constitutional Court, of decisions already made. Or it will now put under question all previous rulings by the Constitutional Court which, presumably, also could be revoked by the Court, after a second hearing.

What now also follows is an unsettling of the party-electoral system of Ukraine. If elections continue to be held in a purely proportional mode, voters will become unsure what their votes actually imply and will eventually lead to. As voters can only approve of closed party lists, they have no opportunity to punish individual deputies who have renounced the mandate they had received during the previous elections, i.e. who have, in fact, betrayed their voters. Worse, voters of those parties or blocs that have suffered most from enticement of their deputies by competing parliamentary factions will ask themselves why they are voting at all. If the deputies whom they delegate to parliament may later be poached by the opposing camp, and switch political sides, it makes little sense to send them to the Verkhovna Rada, in the first place. As the Constitutional Court has, de factor, now renounced its decision of September 2008, Yanukovych’s Party of Regions is a sort of “double-winner”: it can keep its hold on the executive with the help of deserters from other factions; this, at the same time, undermines the electoral base of its political competitors. Democratic elections’ primary function of constituting a transparent link and effective feedback mechanism between the population and government is diminished.

The European Parliament’s “Uneuropean” Ukraine Policy

What is most surprising in this story is that, apparently, the European Parliament has been pushing Ukraine, in exactly this direction. Or, at least, it has done so, in the eyes of the Ukrainian public. On March 26, a delegation of the European Parliament headed by Dr. Adrian Severin, a Romanian law professor, met with President Yanukovych, in Kyiv. Severin is the Vice-Chair of the Group of the Progressive Alliance of Socialists and Democrats – the social-democratic and second largest faction of the parliament of the European Union. According to the report from the meeting published by the Press Office of the President of Ukraine, Severin said to Yanukovych: “We are satisfied that you managed to form a coalition which will now move towards solution of topical political and economic problems. We hope that the Constitutional Court will confirm the legality of the formation of that coalition. Certainly, pre-term elections could be also a constitutional solution, but we are more impressed with stability in the state, than with pre-term elections.” («Ми задоволені, що вам вдалося створити коаліцію, яка зараз візьметься за вирішення нагальних політичних та економічних питань, і сподіваємося, що Конституційний Суд винесе рішення, яке підтверджує правомірність створення цієї коаліції. Безумовно, дочасні вибори могли б бути також конституційним виходом, але нам більше імпонує стабільність у державі, аніж позачергові вибори.») Whether this quote on the website of the Ukrainian President is correct or not – it has been widely reproduced as well as paraphrased in Ukrainian mass media, and never been renounced by the European Parliament. The Ukrainian public now believes that the EU supports the illegitimate and illegal government creation of March 11, 2010. This impression may have even exerted influence on the recent ruling of the Constitutional Court of April 8, 2010.

As with the reaction of the Ambassadors during their meeting with Yanukovych on March 10, one can understand the West’s wish to see, after the years of Orange infighting, finally a stable government in Kyiv. However, there is little ground to believe that the EU’s seeming support for the current regime will actually lead to stability. Though it would go too far call the Party of Regions anti-democratic, the political instincts of its leading functionaries are not yet directed by a concern for balance, pluralism and inclusiveness. Rather, the Yanukovych people, like many politicians in the post-Soviet space, still largely think in terms of zero-sum games: they will try to grab as many relevant post and positions as they can believing that the more power they will have the better for them, and the worse for their opponents. For Yanukovych and Co., the idea of “Europe” is certainly a factor, but so far only a constraining, rather than a normative one. Integrating Ukraine into the EU is, to be sure, an important aim of the leaders of the Party of Regions too, but, in most cases, they are more or less deeply impressed by, rather than genuinely attracted to, European democracy.