The Constitutional Court of Ukraine on Oct. 1 returned the country to the 1996 constitution, scuttling changes backed by President Viktor Yanukovych when he was on the losing end of the 2004 Orange Revolution.
The court, which has a reputation for rubber-stamping the desires of politicians in power, has now handed Yanukovych tremendous powers over naming the prime minister, the cabinet of ministers, canceling government decisions and disbanding parliament.
The ruling amounts to a major power grab for Yanukovych, who – after only eight months in power – now controls the executive, legislative and judicial branches of government in a way no president has since Leonid Kuchma ran the nation from 1994-2005.
Yet Yanukovych sought and received even more powers through a new law on the cabinet. Approved by the obedient pro-presidential majority in parliament after just an hour-long debate on Oct. 7, it gives the president control over government budgets as well as more say in appointing and dismissing the general prosecutor, top customs officials and regional governors.
When Yanukovych was out of office, he had opposed such monopolization of power. As part of an agreement to end the 2004 Orange Revolution, in which Yanukovych failed to seize power in a rigged election, he backed constitutional changes that diluted the powers of ex-President Viktor Yushchenko through most of his predecessor’s five-year tenure that ended on Feb. 25.
Even as prime minister in 2007, Yanukovych opposed reverting to a strong presidential system – calling such attempts “pointless” in an article written for the Dzerkalo Tyzhnia weekly.
In the article, Yanukovych went further and said “the majority of our people would take measures to cancel this [2004] political reform as a return to totalitarian times and would reject them.”
But now firmly in power, Yanukovych is justifying the changes as essential to leading the nation and enacting major legislative changes, especially economic reforms designed to make the nation more investor-friendly and less riddled with corruption and bureaucracy.
The Yanukovych-friendly court said the changes agreed to in 2004 were unconstitutional, even though many think the Oct. 1 ruling may also be unconstitutional, since only the parliament – not the court – can amend the constitution.
Olena Lukash, the president’s representative at the Constitutional Court, called the 2004 constitutional amendments a mistake and boasted that Ukraine has now returned to the constitution recognized as among the best in Europe.
Over the last four years, both Yushchenko and former Prime Minister Tymoshenko made abortive attempts to amend the constitution and return strong presidential powers.
The 2004 amendments split power among the president, prime minister and parliament in such a way that contributed to the gridlock and infighting of the past five years.
Even though Tymoshenko was against the changes foisted on her in 2004, the opposition leader called the court’s Oct. 1 decision a “usurpation of power” by Yanukovych aimed at “building a dictatorship in Ukraine.”
“The court illegally appropriated the rights held by the people and the Verkhovna Rada,” Tymoshenko said at a press conference in Kyiv on Oct. 1.
According to the 1996 constitution, a president can fire the entire cabinet of ministers.
The president already has control of parliament through his Party of Regions, the largest faction in the ruling majority coalition.
Also, according to a new law on the courts signed by the president on July 7, Yanukovych can control the judiciary through appointments to the pro-presidential 20-member High Council of Justice, which plays a decisive role in nominating and dismissing the country’s 10,000 judges.
Thomas Markert, secretary of the Venice Commission, an advisory body on constitutional law to the Council of Europe, said the commission never considered 2004’s amended constitution to be undemocratic. “It was surprising to learn that the constitution had been declared invalid after six years of being in operation.
This is unusual,” Markert said. “According to European practice, the scope of this kind of Constitutional Court control is normally rather limited.”
The Parliamentary Assembly of the Council of Europe on Oct. 5 warned against the monopolization of power by one political group.
Kyiv Post staff writer Yuriy Onyshkiv can be reached at [email protected] and staff writer Mark Rachkevych can be reached at [email protected].
