Henry E. Hale The George Washington University On Friday, Ukraine’s Constitutional Court annulled the 2004 constitutional reform that had effectively created a balance of influence over executive power between the president and parliament. This division of power was the main reason Ukraine experienced five years of democracy after the Orange Revolution, the only time Freedom House has rated any non-Baltic post-Soviet country fully “free.” President Viktor Yushchenko, Prime Minister Yulia Tymoshenko, and Prime Minister Viktor Yanukovych each tried to subvert rival branches of executive power during 2005-09, but each was rebuffed by an equal and opposite application of raw political machine power by the other branch. This includes Yushchenko’s legally questionable dissolution of parliament in 2007 that stopped Yanukovych’s attempt to buy the 300 parliamentary deputies he needed to change the constitution, emasculate Yushchenko’s presidency, and establish his own political dominance as prime minister–a power grab many at the time expected would succeed. The balance ultimately succumbed after Yanukovych won the presidency in a head-to-head battle with Tymoshenko’s political machine earlier this year. Yanukovych’s win made Parliamentary Speaker Volodymyr Lytvyn a switchman: Would he stop Yanukovych’s momentum and preserve Ukraine’s political balance by remaining part of Tymoshenko’s coalition, or would he dump her and put Yanukovych on track to capture the prime ministership too? He chose the latter, allowing Yanukovych’s Party of Regions to coerce, cajole, or co-opt enough individual deputies from Yushchenko’s and Tymoshenko’s own fractions to replace Tymoshenko with Mykola Azarov, widely feared as a master of Kuchma-era machine politics. Tymoshenko, refusing to countenance even the possibility of defeat during the presidential election, emerged from her loss unprepared to stop these developments. Having captured both branches of executive power, Yanukovych raced with time to institutionalize this gain by changing the constitution before Azarov’s crazy-quilt coalition could unravel and the balance be restored. When Lytvyn and other coalition members indeed resisted repealing the 2004 constitution by referendum over the summer, the Donetsk-based Yanukovych team turned to their backup plan: getting the Constitutional Court to do it. Sure enough, on July 12 it was reported that Donetsk native Anatoly Holovin had become Court chairman, and the very next day a group of Party of Regions parliamentarians called on the Court to rule on whether the 2004 reform was legal. With some political uncertainty still surrounding the October 1 ruling, now may be the last moment for many years that Ukrainian elites uneasy with Yanukovych’s power grab can hope to stop him and restore the balance. If they do not, the ruling may go down as a tipping point in Ukrainian politics, consolidating a self-fulfilling prophecy that the Party of Regions’ dominance across the political space is inevitable and thus pointless or dangerous to resist for anyone who has anything to lose. With the “Kuchma constitution” of 1996 restored and the president able to remove the prime minister at will, there would be little to stop the reestablishment of a giant “single pyramid” of machine power in Ukraine, a typical post-Soviet hybrid regime. The October local elections may be its first electoral test.
