Ukraine's Constitutional Conundrum

Amidst Ukraine's constitutional crisis, the United States should remember recent history and back the legal process, not its favored ally.

Fourteen years ago, the Clinton Administration made a fateful decision. When a "pro-Western, pro-democracy" president chose to dissolve an elected parliament that was viewed as an obstacle to reform, the choice was made to back a person over a process. Yeltsin got rid of his Supreme Soviet but forever doomed the political future of those who stood for liberal democracy. For some, Russia's path toward its current "electoral autocracy" was set during those October events.

Ukraine is now engulfed by its own political crisis pitting the victor of the Orange Revolution, President Viktor Yushchenko, against the government of Prime Minister Viktor Yanukovych, the villain of 2004 who returned to power after the parliamentary elections of 2006. And once again, the United States is going to be faced with a choice-whether to support a person who wants to bring about outcomes we desire (a Ukraine firmly linked to the Euro-Atlantic community) or a process which may end up, just as elections have elsewhere in the Greater Middle East, stymieing U.S. objectives.

To be clear, what is happening now in Ukraine is not completely analogous to what happened in Russia in 1993. Back then, Boris Yeltsin clearly had no constitutional authority to dissolve the Supreme Soviet and was relying on a tenuous claim that results of a referendum earlier that year endorsing reform gave him the right to remove a recalcitrant legislature. In contrast, there is a genuine constitutional conundrum in Ukraine. Roman Zvarych, the presidential representative to the Verkhovna Rada (parliament), noted in March that under certain circumstances the president does have the right to dissolve parliament-and one of the issues on the table has to do with the status of the parliamentary majority under which the current government operates. Ukrainian law provides only for parties to join coalitions and is meant to prevent individuals elected under one party mandate from defecting to join another bloc-and Yanukovych has been tempting legislators to join his ruling coalition in an effort to secure 300 confirmed votes (out of 450) which would not only give him a veto-proof majority but also enable him to change the constitution of the country.

Yushchenko's decree calls for new elections to be held in May, but Yanukovych and his supporters in parliament are appealing to the Constitutional Court to overturn what they view as an invalid presidential action.

So far, the Bush Administration has sounded the right tone. This is a crisis which must be solved non-violently, within the framework of the Ukrainian constitution.

But temptation beckons the hope that early elections can do this year what they failed to do last year-produce a new parliament with a much more pro-American membership, one that will be prepared to take the country into a much closer partnership with the West.

Recent polling data, however, indicates that Yanukovych's coalition (and here it is important to note this is a larger grouping than Yanukovych's "Party of Regions") would still have a slight lead over even a "re-united" Orange Coalition which would include Yushchenko's "Our Ukraine" and the bloc led by former Prime Minister Yuliya Tymoshenko. Yushchenko's "favorable" ratings have been slipping-the Public Opinion Foundation's March 2007 survey showed an approval rating of only 23.3 percent. Yanukovych would certainly benefit politically from the country's economic growth of the last year-especially given the lackluster performance when Tymoshenko was in power. In other words, there would be no guarantee at all that new elections later this spring would produce a dramatically different parliament than the current one.

And Ukraine remains very divided over its future geopolitical orientation. Polling data consistently returns the result that over half of the country opposes membership in NATO. Ilya Kucherov, head of the Democratic Initiatives Foundation, noted that there exists no consensus as to how to define Ukraine's national interests and, in the absence of a major effort undertaken to convince Ukrainians why NATO membership benefits their interests, there will be no broad-based public support for such a move.

And while I hate to sound like a broken record, I must repeat what I have been saying for the last two years-that in order to engineer the shift it would take to orient Ukraine westward, the United States and the European Union would have to spend far larger amounts of treasure than the relatively paltry sums so far expended. The West had an opportunity in the first months after the Orange Revolution to pour in the type of aid that would have cemented Yushchenko's standing by showing that Brussels and Washington really did believe their own rhetoric-and we failed to act. If Yushchenko risks his country's stability to make a desperate "last gamble" to ensure Ukraine's "Euro-Atlantic choice", are we prepared to step up to the plate? And to pay all of the costs-including the inevitable rupture in relations with Russia?

Should the Constitutional Court-which in recent months has taken a strict-constructionist approach to the Ukrainian constitution, rule that President Yushchenko's decree is invalid, the United States needs to resist the inevitable calls that will be made not to let process stand in the way of a pro-Western reformer. I don't believe the Orange Coalition can be put back together in the space of a few weeks, and any short term advantages we might derive would be lost in the ensuing backlash.

No matter who is in power in Kyiv, Ukraine will continue to move closer to Europe. If nothing else, economics will drive this process. And we are better off when the choice of geopolitical alignments for Ukraine is backed by a broad segment of the country's population. At the same time, U.S. interests aren't served if Yanukovych and his supporters are driven closer into Moscow's orbit.

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