Paul D'Anieri, Understanding Ukrainian Politics: Power, Politics, and Institutional Design, 2007.
Beyond the Orange Revolution
An Agenda for Further Reform
The pattern of politics that developed in post-Soviet Ukraine has been labeled "competitive authoritarianism,"1 "delegative democracy,"2 "machine politics,"3 and "electoral authoritarianism"4 (the term used in this book) by various authors. While the labels differ, the gist of the arguments is the same. The Kuchma administration in Ukraine was able to use methods that were at least nominally democratic to achieve ends similar to those of authoritarian rule. In other words, he and his supporters, the so-called party of power, were able to erode the link between elections and genuine political competition. By 2004, it was not clear whether a challenge to his appointed successor could possibly succeed.
The 2004 election, and the subsequent Orange Revolution, ended the rule of Kuchma's group in Ukraine. Following an obviously fraudulent runoff election, street protests combined with legal challenges led to the rerunning of the second round of the election, and to the victory of opposition leader Viktor Yushchenko.5 With Kuchma and Yanukovych defeated, the path to liberal democracy again opened in Ukraine. By 2006, however, Yanukovych was triumphant again, and it was clear that the path to democracy would be rocky.
This book has developed an empirical and theoretical explanation of those developments. Ukraine's political development since 1991 has been driven by four interrelated factors: the institutional legacy of the Soviet Union, divisions in Ukrainian society, institutional design, and above all, the practice of "power politics." The central argument has been that power politics has trumped institutional design throughout the post-Soviet era.
How do these four factors stand after the Orange Revolution? The Soviet legacy has receded a bit further into the past, but it remains powerful, especially in the politicization of the bureaucracies and the judicial system. Similarly, Ukraine's regional divisions remain profound.6 It is even possible that the Orange Revolution led to further polarization as Yushchenko and Yanokovych were themselves polarizing figures, and were identified so clearly with different regions. Therefore, the challenges for institutional design that were laid out in Chapter Five remain serious.
Changes to Ukraine's institutions have, however, addressed some of these shortcomings. The excessive power of the presidency has been substantially curtailed. The increased power of the prime minister and parliament over the government should provide for more effective checks on abuse of power. Equally important, the shift to a full proportional representation system for parliamentary elections will likely make that institution more effective.
Finally, the gross imbalance in de facto political power has been partly redressed. This was a result not only of constitutional changes but also of the end of the Kuchma administration's grip on the economy, the news media, and the bureaucracies. The reassertion of pluralism in Ukraine's media and of Ukrainian civil society means that political power is diffused much more widely today than it was under Kuchma.
In this conclusion, we assess the changes that occurred in 2004, and point out the challenges that remain. The previous chapters have identified a series of institutional weaknesses; changes adopted in 2004 (most of which went into effect in early 2006) have addressed many of the most glaring, such as the excessive power of the presidency. However, other weaknesses remain. If further changes are not made, there is a danger that some future leader— either a president or prime minister—will be able to consolidate power as thoroughly as Kuchma has. The opposite problem also remains a danger— that the new division of powers at the top of Ukraine's government will lead to stalemate and a new crisis. This chapter therefore considers an array of reforms that should be considered if a return to Kuchma's way of ruling is to be prevented in the future. The point is not to diminish what was accomplished in 2004, but rather to indicate that it should be viewed as the beginning of a process, not the end.
Power Politics Versus Institutional Design in the Post-Kuchma Era
While the Orange Revolution was inspiring and miraculous to some, Viktor Yushchenko quickly found that overthrowing the falsified election was the easy part, as compared with governing the country. He and his associates have been tempted to use the levers of power controlled in the executive branch to undermine their adversaries and to pursue personal as well as political goals. Both Tymoshenko and Petro Poroshenko were accused of doing just this. When Viktor Yanukovych regained the position of prime minister in 2006, there was widespread fear that he would abuse his control of the government as Kuchma had.
While it would appear that the shift from a presidential to a presidential-parliamentary system should diminish the potential for executive malfeasance, we know from comparative experience that machine politics are possible even in parliamentary systems (e.g., Malaysia). To the extent that Yushchenko and the parliament clash over control of the government, he will be tempted to resort to any means he can to prevail. To the extent that the parliament or the prime minister enacts measures to which Yushchenko objects, we can imagine him using the powers at his disposal to frustrate them. That he believes firmly in strong presidential power is demonstrated by bis steadfast opposition to constitutional change that would diminish the president's authority.
Two important changes, however, will make it harder for anyone to accumulate the power that Kuchma had. For this reason, the potential for Yanukovych, as prime minister, to re-create Kuchma's machine is considerably diminished. The first is the redistribution of legal power away from the president. Because control over the executive branch will be divided between the president and prime minister, neither will have the same ability that Kuchma did to use government resources for electoral purposes. This does not mean that they will not try, but unless they cooperate closely, they will be likely to check one another. The good news is that such a system wiil be less prone to authoritarianism. The bad news is that it will be prone to stalemate.
Media freedom is a second important development that will impede machine politics in the future. The Orange Revolution led to the freeing of the Ukrainian media, and it will be very difficult for a future leader to force the media back under state control. This does not mean that Ukrainian media outlets are independent or public-minded. Most are controlled by oligarchs or large firms with their own political agendas to promote. However, in contrast to the Kuchma era, a wide variety of views is now being expressed. Moreover, outlets that criticize the government have not been harassed. Now that the media are free, it will be difficult to corral them again. Not only will they fiercely resist such efforts, but the elites that control them will also push back. As a result, the leader who tries to control the media will likely pay a high political price. Yushchenko discovered this when he harshly criticized reporters who publicized his son's extravagant spending habits.7
Media in Ukraine can now play the watchdog role to which they are "assigned" in democratic theory. Even if they are politically biased, media can help limit government misbehavior by investigating and publicizing it. This is a vital check on the government, especially when it is not yet clear that official law enforcement bodies are sufficiently independent to investigate wrongdoing by government officials.
Institutional Change: Assessing the 2004 Reforms
The institutional changes introduced in 2004 map neatly onto the analysis developed in this book. Chapter Six demonstrated that the distribution of power between the parliament and the president does not allow the parliament to effectively challenge the president's power. The December 2004 constitutional changes transferred substantial power to the parliament. Chapter Seven (and Chapter Five) demonstrated that Ukraine's mixed parliamentary electoral law contributed to the fragmentation of the parliament and to its inability to play an effective role. A March 2004 law changed the electoral law, so that the 2006 parliamentary elections were conducted on a fully proportional basis. Chapter Eight showed that parliamentary rules undermine party discipline and encourage party fragmentation. A December 2004 law introduced the "imperative mandate," which is designed to strengthen party discipline and make party fragmentation much less likely. These changes should mitigate the three most significant weaknesses in Ukraine's pre-Orange Revolution institutional design.
Constitutional Change: Limits on Presidential Power
The revisions make Ukraine a presidential-parliamentary system, in which the prime minister and cabinet of ministers are appointed by and answerable to both the president and the parliament. In the previous system, the prime minister was appointed by the president and only had to be confirmed by parliament. The prime minister then had to get the president's approval for ministerial appointments, and ministers could be dismissed by the president. In essence then, effective power over the prime minister and the cabinet was held by the president.
In the heat of the moment, it went largely unnoticed that the adopted constitutional changes are fairly similar to what Kuchma had put forward in May 2004. In other words, the result of the election—Yushchenko's winning of a weakened presidency—is one that Kuchma found acceptable all along. In that sense, he came out a winner.8
The timing of the term of office for the prime minister and cabinet has been changed to coincide with parliamentary rather than presidential elections. When a new parliament is elected, it will immediately be able to influence the composition of the cabinet.
While the president formally nominates the prime minister, new provisions concerning the parliamentary majority give the parliament the key voice in choosing the prime minister. The new laws stipulate that the parliament will establish a majority within thirty days of a new sitting, and that the president will consult with that majority in naming a new prime minister. In practical terms, the parliamentary majority names the prime minister because the parliament controls the chances of confirmation. The ambiguities in this arrangement were quickly tested in the summer of 2006, when Yushchenko asserted that he was not legally compelled to nominate the candidate put forward by the majority coalition in parliament. Politically, however, he felt compelled to nominate Yanukovych, fearing the wrath of the voters if he called new elections.
Control over the cabinet of ministers is now divided between the president and the prime minister. The prime minister appoints all of the ministers except two reserved for the president, but those reservations may prove to be very important. The president appoints the ministers of defense and foreign affairs. Moreover, the president appoints the heads of the Security Service of Ukraine, the National Security and Defense Council, and the National Bank of Ukraine, as well as the prosecutor general. Thus, control over key executive positions (and agencies) is divided between the president and prime minister.9 In practice, the system worked a bit differently when first put into practice in 2006. Rather than having the prime minister and president name "their" ministers separately, Yushchenko and Yanukovych together agreed on the entire slate as part of a broader political deal.
It seems safe to predict that these new rules will undermine the constitutional basis for hyperpresidential rule as it existed under Kuchma. Dividing control over ministries and government agencies will make it much more difficult for either the president or the prime minister to use the bureaucracies to control other actors through selective law enforcement. The ability of the parliament to fire ministers individually will also strengthen parliament's oversight capacity. Parliament therefore should become a more effective check on both president and prime minister.
Potential Problems with the New Constitution
There are considerable dangers in this new system. While the new system will make less likely a return to the 1995-2004 era, it will make more likely a return to the 1991-95 era, when the division of executive power among president, prime minister, and parliament led to constant infighting and stalemate (see Chapter Four).10 To summarize, the prime minister in that era was nominally in control of the cabinet of ministers, but the parliament and president also both had influence over the cabinet. The parliament and president competed for control of the prime minister, while the prime minister struggled for independence from both. The resulting immobility convinced many Ukrainians that stronger presidential power was needed. Kuchma used this sentiment to build the case for the hyperpresidential 1996 constitution.
The problem with the new constitutional arrangement is that rather than establishing clearly separate powers that can "check and balance" one another, it creates overlapping powers. This arrangement will be prone to conflict about the selection of ministers and about the direction of executive branch policy in Ukraine. At this early stage, it is impossible to say exactly how these changes will work in practice. Much will depend on the specific constellation of power. If there is a solid parliamentary majority that is supportive of the president, the system may work well. But if the presidency and parliament are held by opposing forces, or if the parliament is badly divided, the danger of immobility will increase, and calls for a new revision of arrangements will emerge.
In its first implementation, following the 2006 parliamentary elections, the following arrangement emerged: president and prime minister were from rival forces, and a narrow majority coalition existed in parliament. This did not appear to be a recipe for effective government. The success of this arrangement will depend on two factors: the ability of President Yushchenko and Prime Minister Yanukovych to arrive at some agreed-upon policy agenda, and the ability of both of them to maintain control of their forces in parliament to support that agenda.
To the extent that control of the executive branch remains a powerful political tool in Ukraine, it could become badly politicized by the new arrangements. We can envision a situation in which the president uses one set of bureaucracies to pursue his or her political interests, while the prime minister uses another set of bureaucracies to pursue his or her competing political interests. Will the Interior Ministry be investigating firms that support the president, while the Security Service harasses firms that support the prime minister? Unfortunately, this does not seem farfetched.
Matthew Shugart and John Carey, who have studied presidential-parliamentary systems extensively, find two essential conditions for the success of this form of government: a clear division of responsibilities between president and prime minister, and respect for this division by both the president and prime minister.11 These conditions clearly do not exist in Ukraine, and it does not appear that they will emerge in the near future.
If the new system leads to stalemate, yet another crisis will ensue in Ukraine. At that point there could be renewed calls for a strengthened presidency. However, depending on the balance of forces at the time of such a crisis, a move to a fully parliamentary system could occur.
The Adoption of a Proportional Electoral Law
In Chapter Seven, we concluded that Ukraine would be much better served by a fully proportional election law than by the mixed system used in 1998 and 2002. The results of the 2006 parliamentary election offer early evidence that this system is indeed better than the previous mixed system. Proportional representation will strengthen parties and should make it easier to build a majority coalition in parliament. This, in turn, should make it easier for the parliament to be a counterweight to the president.
One potential problem with the shift to proportional representation is that the threshold for entering parliament was lowered from 4 percent to 3 percent. While in absolute terms the difference is only 1 percent, in effect the barrier has been lowered by a fourth. This lower threshold reduces the incentives for parties to merge, and will likely increase the number of parties, especially small parties, that enter parliament. In 2006, this problem did not materialize. Only five parties were elected to parliament, and problems in forming a coalition had to do with animosities among these parties, not with an excessive number of parties.
It is not easy to predict exactly what the longer-term effects will be. In 1998, two parties obtained between 3 percent and 4 percent of the vote, and in 2006, two parties obtained between 2 percent and 3 percent, so the effect may not be enormous. However, with weak parties and a low threshold, the temptation to abandon parties rather than invest in them will remain. With each party reaching 3 percent receiving at least thirteen seats in the parliament (3" percent of 450 seats is 13.5 seats), a substantial diluting effect is possible, which may have serious consequences with respect to the effort to forge a parliamentary majority. Rather than an alliance of two or three large parties in a majority coalition, we may see these small parties holding the key, which will increase their leverage still further. In August 2005, Our Ukraine sponsored a bill to raise the threshold from 3 percent to 7 percent, but it failed.12 We should not be surprised if raising the threshold becomes an issue in the future.
The Adoption of the Imperative Mandate
The imperative mandate may emerge as a much more significant, though less visible, institutional change. Even with fully proportional representation, if deputies in the parliament remained free to switch factions at will, the parliament would almost certainly remain weak and ineffective. It would be difficult to form a coherent majority coalition and the executive would potentially remain able to undermine the parliament by enticing deputies to defect from their parties.
The imperative mandate is a logical extension of proportional representation: if citizens vote for parties rather than individuals, it makes sense that the seats "belong" to the parties, rather than to the individuals chosen to fill them. The imperative mandate will mean that bargaining among party leaders will largely replace bargaining with individual deputies. Because there will be a reliable way for party leaders to "deliver" the votes they promise, deals can be struck without the fear that the partners will not be able to deliver the votes they promise. This should facilitate coalition formation, which often relies upon promises that one party will vote for a certain program or measure that is a central interest for a coalition partner.
However, the imperative mandate may not have a strong effect on party discipline in practice. It does not require the individual deputy to vote the party line on every bill. Moreover, individuals lose their seats only if they formally abandon the party. Already in 2006, dispute arose over the exact restrictions created by the rules. One question that arose was whether a party could eject individual deputies from the party, and then reclaim their seats. It appears that the measure does not allow parties to eject members and reassign their seats, though this question may be further contested in practice and in the courts. A second question is whether the seat is "owned" by the election bloc on which it was gained, or by the party (part of the bloc) of which the individual deputy is a member.
It seems likely that many deputies will continue to ignore the wishes of party leaders, and that the imperative mandate will have a weak effect in the absence of stronger parties.13 Considering the possibility of an "orange coalition" in 2006, the influential journalist Yulia Mostova wrote, "Unrealized hopes and frustrated ambitions among rank-and-file deputies, stimulated by bribery or simply bad character, might not only ruin the plans of the three leaders for the government and parliament, but also kill the coalition before it flies."14 In sum, the imperative mandate is clearly a step forward, but it will not, by itself, instill party discipline.
Ongoing weakness of party discipline was shown in voting over the prime minister in 2006. Having engineered a new coalition to take control of parliament, the Party of Regions found it difficult to assemble sufficient votes in that coalition to elect Yanukovych prime minister, because several Socialist deputies did not follow their leader, Moroz, when he switched his support from Yushchenko to Yanukovych.
Nor are all of its implications necessarily positive. To the extent that the imperative mandate actually allowed parties to control their deputies, the potential danger is that party leaders would become too powerful. What leverage will rank-and-file party members have over a party leader who is either corrupt or simply disregards the wishes of the party in pursuit of the leader's own political objectives? Depending on the internal rules of the various parties, it may be easier or harder to control the party leader. In many parties around the world, party leaders are chosen by vote of the party's parliamentary delegation or by a broader party congress, and can therefore be replaced. In Ukraine, where many of the parties are built from the ground up around a single individual, such control may be more difficult.
In determining the party list for the Tymoshenko Bloc in 2006, three of Tymoshenko's trusted lieutenants had to threaten to quit the bloc in order to keep the previously pro-Kuchma oligarch Oleksandr Volkov off the list.15 When Socialist Party leader Oleksandr Moroz defected from the "orange coalition" to form a coalition with the Party of Regions and Communist Party, not all of his deputies supported him with their votes, and at least one resigned from the party. While this kind of internal check is necessary, it needs to be institutionalized because the threat of key members to resign is not a very reliable or democratic way to govern the party. Therefore, the development of internal party democracy will be a central challenge in the new system.
The importance of the imperative mandate is more likely to emerge gradually, and in combination with the full proportional representation system, in promoting a reasonable balance of influence between party leaders and rank-and-file members. Clearly, the development of strong party organizations is essential. In other countries with the imperative mandate, discipline comes not primarily from the imperative mandate, but from the control of the party over the proportional representation election list, and over appointments to party and government posts.
In Ukraine, the mutual influence between party organizations and members remains weak. Party leaders can shift policy without close consultation with members, but members can quit the party and hope to join another. Individual members must have more incentive to work for influence within the party than to defect when they disagree with the party line. The imperative mandate may be a powerful factor in promoting that incentive, but it will not instantly cure the problem.
An Agenda for Further Reform
Those three key institutional changes, adopted in 2004 and put into effect in 2006, address three of the major institutional shortcomings highlighted in this book. However, as we have seen throughout, one of the problems in Ukraine is that institutional rules do not always constrain behavior. As Chapter Nine showed, this is in large part because various de facto powers of the executive branch could be used to circumvent or simply negate the institutional rules.
Without a doubt, some of the institutional changes discussed above will tend to reduce that problem. Because the parliament as well as the president will now be able to dismiss individual ministers, it may become much harder for the ministries to be used as political weapons. It will in particular be more difficult for the president to use selective law enforcement against individual members of parliament and their business interests.
However, most of the tools of executive dominance elaborated in Chapter Nine still exist in Ukraine, and the consolidation of liberal democracy will be much more likely if further changes are undertaken to prevent the sort of "machine politics" practiced by Kuchma. This section therefore elaborates an agenda for further reform. Some items on this list are strictly in the institutional realm, while others are in the realm of normative or cultural change, which are harder to bring about through legislation, but important nonetheless.16
1. Mass-Based Parties
As noted above and in Chapter Eight, Ukraine's political parties are formed around individual leaders rather than wide societal groups. This makes it fairly easy for the leaders to abandon old parties and build new ones as tactical needs dictate. As a result, political parties serve as mechanisms by which elites contest elections, but they do not serve as entities that aggregate and express mass-based societal interests. The specific danger with the adoption of the imperative mandate is that those who are already extremely powerful will become even more powerful. In other words, the goal of the imperative mandate is to strengthen parties, not just the elites that form the parties. In the absence of democratically governed parties, parliament may be controlled by a small oligarchy, consisting of the two or three party leaders who together have enough votes to form a majority. Such a narrow alliance of party leaders led to the coalition that elected Oleksandr Moroz speaker of parliament in 2006, but so far the imperative mandate appears to be weak rather than dangerous.
In order for parties to be strengthened as parties, and not just as vehicles for powerful elites, they will need to become based more in their rank-and-file memberships. Mass memberships can check party leaders from below through internal party election processes. When parties have larger bases among the public, the costs to elites of defecting from one party and starting a new one will increase. This is the only way to strengthen the parties without making the party leaders dangerously powerful. The resulting strengthening of the party system would help the parliament to function effectively and to check the executive branch. It would also improve the public's sense of political efficacy.
In addition to campaign finance reform, discussed below, the strengthening and democratization of parties might be accomplished through legal requirements for internal party democracy. For example, the law could require that primary elections rather than party leaders determine candidate lists. Such a change was instrumental in democratizing American political parties in the twentieth century. Alternatively, the closed list proportional representation system could be replaced by an open list system, in which citizens vote not only for a party, but for the order of candidates on the party list. Such a system is used in Turkey and Finland.
2. Campaign Finance Reform
Related to the problem of building mass-based parties is the problem of campaign finance reform. While there are laws in place limiting campaign contributions and spending, they appear to be irrelevant, judging by the enormous amounts of money, little of which was accounted for, spent in recent elections. As has been demonstrated in the United States in recent decades, campaign finance is not easy to control because both potential donors and recipients have powerful incentives to find loopholes in whatever constraints are enacted.
However, a campaign finance system does not have to work perfectly in order to significantly constrain behavior. Even a very imperfect system would be an improvement on the present free-for-all in Ukraine. The most important project for Ukraine would be to make it more difficult for candidates and parties to rely on a very small number of very wealthy donors for financial support. The goal would not be to extinguish the effect of money on politics, which is probably impossible. Rather, the main goal would be to force politicians and party leaders to pursue a broader range of funding sources. This would be another step toward broadening the base of party support. A second goal would be to even the playing field between various candidates. Finally, campaign finance reform might reduce the incentives for elected officials to extort campaign contributions from firms and wealthy individuals. Unfortunately, campaign finance reform has received little attention in Ukraine and in external analyses of Ukrainian politics. For example, campaign finance is not discussed in over a hundred pages of recommendations produced by the Blue Ribbon Commission for Ukraine in 2005.n
3. Election of Regional Governors and Local Administration Heads
Ukraine's unitary state structure helped facilitate Kuchma's turning of the state apparatus into a massive machine to collect votes and attack political adversaries. This reached from the top to the bottom because there was a single vertikal of power, in which the heads of oblasts and local administrations were appointed by the president in Kyiv. This power remains in the president's hands, and upon his inauguration, Yushchenko quickly replaced almost all of the regional heads.
If those regional leaders were elected, they would have their own bases of power, and would have much less reason to do the president's bidding. Some of them might still choose to do so, but others likely would not. This would create a built-in check on presidential power. This is especially true when we consider Ukraine's regional divisions. It is hard to imagine that all of Ukraine's regions would elect governors who are loyal to the same president.
In electing governors, Ukraine would be moving in the opposite direction from the one Russia took in 2004. In Russia, Vladimir Putin took advantage of the Beslan school massacre to gain passage of constitutional revisions allowing him to name Russia's governors. Almost every observer saw this as a major consolidation of Putin's power and as a threat to democracy.18 Yet this system has been present in Ukraine all along.
One potential downside of electing governors, cited repeatedly by Putin, is that it allows a situation where locally popular governors can pursue corruption without the fear of being fired by the president.19 There is no doubt some danger of this, and one can imagine elected governors in some regions resisting any changes coming from a central government they do not like. However, the best cure for corrupt local officials is effective enforcement of anticorruption laws, not a consolidation of presidential power. In Ukraine, the president has been a source of corruption among the governors, not a remedy for it.
4. Civil Service System
The use of patronage to collect votes can occur only in a situation where one can credibly threaten to fire employees for political reasons. There is a standard remedy to that problem: institution of a functioning civil service system for the majority of government jobs.20 More generally, in Ukraine there is insufficient distinction between civil servants and political appointees.21 In such a system, widespread in Western democracies, workers can be fired only for cause. While this often leads to complaints about the difficulty of ridding government agencies of incompetent employees, it is the only known way to eliminate the widespread use of patronage. The need to combat patronage politics was a major reason for the adoption of civil service laws in countries such as the United States.
Ukraine does have civil service laws, and has had several commissions to consider civil service reform. Yet the coercion of government employees remained even after the Orange Revolution.22 As noted above, the division of control over bureaucracies between the president and the prime minister will mean that such power will no longer be monopolized by a single actor. This will help to produce balance in the exercise of patronage (as long as the president and prime minister are rivals, or as long as a variety of parties controls the various ministries). However, as long as patronage politics is a way of life, elections will be unfair, and one path to electoral authoritarianism will remain open.
5. Measures to Combat Corruption
Official corruption is a far-reaching problem in Ukraine, and here we can offer no comprehensive plan to combat it. It is necessary to recognize, however, that besides its deleterious economic effects, corruption facilitates concentration of power in the executive. Corruption facilitates selective law enforcement in several ways. First, corrupt government officials are vulnerable to control from above by those who can choose to expose them or to look the other way. Moreover, because corruption makes certain government posts highly lucrative, officials given those posts have an extra incentive to follow the dictates of their bosses rather than the law. Finally, corruption creates an easy way to bring money into political campaigns "off the books." This gives large advantages to those in control of the government apparatus. Corruption played a central role in Kuchma's strategy of political control. He promoted a system in which government officials were corrupt, because he could then exchange his willingness to look the other way for financial and political loyalty from subordinates.
Combating corruption will not simply be a matter of writing new rules. In some cases, there are genuine economic barriers to ending corruption. For example, it may be difficult to get teachers to stop accepting petty bribes from students if the teachers' salaries are too meager to live on. In the cases of teachers and many low-level officials, the ability to collect bribes has been a substitute for the state's ability to pay them. There are enormous fiscal implications in changing from a system where these officials are paid through bribes to one in which they are paid fully by the state.
Such widespread everyday corruption will not be eradicated by new rules, especially when corruption will prevent the new rules from being enforced. Instead, corruption is more likely to be reduced because it becomes a political liability. A more independent parliament may have an incentive to investigate corruption within the executive branch, and vice versa. Equally important, the newly freed media can play an essential role in publicizing corruption, and in doing so, making political elites pay a price for it.
All accounts indicate that corruption in Ukraine did not diminish substantially after the Orange Revolution. However, it increasingly appears to be a political liability. Throughout 2005 and 2006, press reports about the spending habits of Yushchenko's associates were perceived as very damaging. Moreover, accusations of corruption forced Yushchenko to fire some of his closest associates (notably Petro Poroshenko). Official corruption in Ukraine will be reduced as much through the vigilance of the press and opposition politicians as through any specific changes in rules.
6. Simplification of the Tax Code
One set of rules that does influence the level of corruption is the tax code. A complex tax code is not merely economically inefficient. It provides opportunities for tax inspectors to take bribes. More important, however, it opens the door wide to selective law enforcement as a means of ensuring support for the executive. This was facilitated by unpredictable changes in the tax code, some of which had a retroactive effect.23 Yushchenko made reform of the tax code a priority early in his presidency, but progress has been limited.
As was noted in Chapter Nine, tax enforcement actions were a favorite means used by Kuchma's team to ruin the businesses of opposing politicians and to silence unfriendly media. Simplifying the tax code would make it easier for businesses to ascertain that they are in compliance, and more difficult for the government to trump up tax evasion cases against its political enemies. As added benefits, it would reduce a serious drain on the economy and create a much more favorable climate for foreign investment.24
7. Ability to Appeal Administrative Penalties
The use of selective law enforcement has been so powerful in Ukraine because it quickly bankrupts the firms targeted. This results from two aspects of the system. First, there is no formal hearing process that must occur before a violation is found and a fine levied or a business closed. Second, even when a firm appeals a ruling, the penalty is administered immediately. Moreover, even if a court subsequently rules for the defendant in such a case, the business in question may have suffered such irreparable damage in the interim that it has effectively been destroyed. Knowing this, businesses can easily be cowed into supporting the administration. It would be relatively easy to change the procedures by which administrative actions can be brought and appealed, but it is not clear that this is high on anyone's priority list in Ukraine.
8. Judicial Independence
As emphasized in Chapter Nine, Ukraine has the statutory requirements in place for a fairly independent judiciary. Judicial independence was further strengthened, on paper, in December 2004, when it was agreed to revise the process for appointing judges to the Constitutional Court of Ukraine. Previously the president, the parliament, and the Union of Judges each appointed six members, but because the Union of Judges was controlled by Kuchma, he in effect appointed a majority. In the new system, the president and parliament will each name nine judges.
The problem of judicial independence does not appear to be one of rules, but one of norms. "Judicial independence [in Ukraine] in the final analysis will depend largely on the conscience and courage of the judges themselves."25 The norm established under the Soviet system was that the judicial apparatus was part of a unified state structure and an instrument of state policy. Clearly, that understanding has persisted in independent Ukraine, supported by the efforts of Kuchma to uphold it through whatever means of coercing judges proved available.
To some observers, the December 2004 invalidation of the presidential election results by the Supreme Court was a major step toward judicial independence in Ukraine.26 This was not the first time that a judge had defied Kuchma, but in a case on which the country's future depended, the court clearly sided with the law. On the other hand, it did so in a case where the pressure from "power politics" (in the form of protesters in the streets) was increasingly on the side of the law.
Attempts to bribe judges will continue until it becomes the case that both the bribe-givers and the judges are caught and prosecuted often enough that bribery is not worth the risks. There is a normative element here as well. Ukraine needs to reach the point where judges and citizens regard those who take bribes with contempt, rather than as normal people playing according to rules they did not make. For the questions of democratization that concern this book, the continuation of some bribery of judges is less important than the political control of judges by the state. When the judiciary becomes simply one more arm of executive power rather than a check on executive power, it contributes to authoritarian behavior. The Supreme Court's decision indicated that the courts can operate as a check on the executive, but it remains to be seen whether this will become the rule or the exception.
It is dangerous to assume, as many have, that the Orange Revolution represents the establishment of liberal democracy in Ukraine. Rather it represents a departure that might or might not result in consolidated liberal democracy. Just as it was a mistake to assume in 1991 that the path to democracy for the post-Soviet states was relatively straightforward, it would be a mistake to believe that in the case of Ukraine today. The outcome will depend on choices that are yet to be made. There are still many ways in which the process that looked so hopeful in 2004 can run aground. This is so not only because in Ukraine there are still retrograde and corrupt political forces that have no intention of admitting defeat. It is also true because the institutional basis for liberal democracy is still incomplete in Ukraine.
The Orange Revolution and ensuing developments have improved the situation considerably. Power politics is now more limited, in part because political power is more evenly distributed, and in part because important institutions have been redesigned in ways that will improve their performance. However, as this chapter has highlighted, substantial challenges remain. While a return to "Kuchmism" appears unlikely, a successful transition to liberal democracy is equally in doubt.
Institutionally, Ukraine has indeed undergone something of a revolution, from a strong presidential system to a model in which power is more evenly divided between president and parliament. This institutional change has already led to a redistribution of practical political power—from a single executive to two competing powers. To borrow a concept from international relations, control of the executive branch in Ukraine appears to be moving from a "unipolar" to a "bipolar" system. The nature of politics will shift accordingly, from a focus on the will and skill of a single dominant actor to competition and collaboration between two actors who have both common and conflicting interests. The danger of aggrandizement by a dominant president is reduced; the danger of conflict and stalemate between president and prime minister is increased.
These developments in institutional design and in the de facto distribution of power are more important than the identity of specific leaders. It is certainly significant that Yushchenko, by all indications, is less venal, less corrupt, and less brutal than Kuchma. More important, in the long run, is that even if Yushchenko or some successor were inclined to follow Kuchma's tactics, it will be much more difficult to do so. Thus, the prospect of Viktor Yanukovych as prime minister was a very different prospect than the prospect of Viktor Yanukovych as president in 2004. He is much more constrained in the new system than he would have been in the old one. In sum, the institutional changes are central.
The challenge for Ukraine's leaders and citizens is to broaden and deepen reform, even in the face of growing frustration over the pace of change. There is immense work yet to be done in Ukraine, as the agenda elaborated above indicates. Yet, frustration with the results of the Orange Revolution has already built quickly. Yushchenko has found it difficult to gain parliamentary support for his reform program, and his party foundered badly in the 2006 parliamentary elections. Among citizens, many who supported the Orange Revolution felt that it had been abandoned, while those who opposed it were no happier. While the quest for liberal democracy has clearly a taken step forward in Ukraine, success promises only what Churchill famously characterized as "the worst form of Government except all those other forms that have been tried from time to time."27
1. Steven Levitsky and Lucan A. Way, 'The Rise of Competitive Authoritarianism: Elections without Democracy," Journal of Democracy (April 2002): 51-63.
2. Guillermo O'Donnell, "Delegative Democracy," Journal of Democracy 5, no. 1 (1994): 58. The concept is applied to Ukraine by Paul Kubicek, "The Limits of Electoral Democracy in Ukraine," Democratization 8, no. 2 (Summer 2001): 117-39.
3. Paul D'Anieri, "The Last Hurrah: The 2004 Ukrainian Presidential Elections and the Limits of Machine Politics," Communist and Post-Communist Studies 38 (2005): 231^9.
4. Larry Diamond, "Thinking about Hybrid Regimes," Journal of Democracy 13 (April 2002): 21-35.
5. See Chapter Four for an overview of the events known as the Orange Revolution.
6. For an analyses of Ukraine's cleavages after the Orange Revolution, see Alfred Stepan, "Ukraine: Improbable Democratic 'Nation-State' But Possible Democratic 'State-Nation'," Post-Soviet Studies 24, no. 4 (December 2005): 279-308; Dominique Arel and Valeri Khmelko, "Regional Divisions in the 2004 Presidential Elections in Ukraine: The Role of Language and Ethnicity," paper presented at the first annual Danyliw Research Seminar, University of Ottawa, September 29-October 1, 2005; and Lowell Barrington, "Are 'Interaction Effects' More Important than the 'Regional Effect'?: Reexamining Region, Ethnicity, and Language in Ukraine," paper presented at the annual convention of the Association for the Study of Nationalities, March 23-25, 2006, Columbia University, New York.
7. Ukrayinska Pravda, July 25, 2005.
8. There were three major differences between Bill 4150, which Kuchma's supporters put forth in the spring of 2004, and Bill 4180, which was adopted on December 8. In Kuchma's bill, the president would have been elected by the parliament, while in the bill adopted in December, the president continues to be elected in a general election. In Kuchma's bill, the parliament elected in 2002 would have its term extended by a year, a measure removed from the later version. In Kuchma's bill, judges would be appointed for ten-year terms, rather than for life.
9. In negotiations over a coalition in 2006 among the Tymoshenko Bloc, Our Ukraine, and the Socialist Party, the assumption was that all the portfolios would be distributed among the coalition partners; those reporting to the president would not be reserved to him. This is one important way in which the functioning of the government could be vastly improved when the president and the majority in parliament can collaborate. The negotiations are described in Yulia Mostova, "Ti, shcho znovu pidpysalysia," Dzerkalo Tyzhnia April 15-21, 2006, www.zn.kiev.ua/ie/show/593/ 53174/, accessed April 20, 2006.
10. See also Andrew Wilson, "Ukraine: Two Presidents and Their Powers," in Postcommunist Presidents, ed. Ray Taras (Cambridge: Cambridge University Press, 1997), 67-105.
11. Matthew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (New York: Cambridge University Press, 1992), 56.
12. Legislationline, August 28, 2005, www.legislationline.org/news.php ?tid= 57&jid=53, accessed April 20, 2006.
13. Ihor Koliushko and Viktor Tymoshyk, "A vy chytali proyekt 4180? Krytychna stsinka 'politychnoi reformy,' " Ukrayinska Pravda, December 15, 2004.
14. Yulia Mostova, "Ti, shcho znovu pidpysalysia."
15. Serhiy Leshchenko, "Orbity Yulii Tymoshenko," Ukrayinska Pravda, March 20,2006, http://pravda.com.Ua/news/2006/3/20/39944.htm, accessed April 20,2006.
16. A broader agenda for reform in Ukraine was elaborated by the Blue Ribbon Commission for Ukraine, "Proposals for the President: A New Wave of Reform," 2005, www.carnegieendowment.org/files/BRCReportl21204Eng2.pdf, accessed April 16,2006.
17. Blue Ribbon Commission for Ukraine, "Proposals for the President," 84-92.
18. See, for example, Freedom House, Freedom in the World—2005 (Lanham, MD: Rowman and Littlefield, 2005), 519-24; and Carnegie Endowment for International Peace, "An Update on Russian Domestic Politics," October 1, 2004, www .carnegieendowment.org/events/index.cfm?fa=eventDetail&id=746&&prog=zru, accessed April 16, 2006.
19. See, for example, Vyacheslav Nikonov, "Chtoby ponastoiashchemu borot'sia s korruptsiei, nado vypolnit' dovol'no mnogo uslovii vekami proverrenykh," Izvestia, October 21, 2004, 4; and "Russian Analysts Evaluate Putin's Comments on Political Reform," BBC Monitoring International Reports, November 19,2004.
20. See Anticorruption Network for Transition Economies, "Ukraine: Summary of Assessment and Recommendations," January 21, 2004.
21. Blue Ribbon Commission for Ukraine, "Proposals for the President," 24-25.
22. Interviews in Kyiv, October 2005.
23. "Barriers to Investment in Ukraine" (Kyiv: European Business Association, 2004), 9.
24. The flaws in the tax code, and proposed remedies, are presented in detail in Blue Ribbon Commission for Ukraine, "Proposals for the President," ch. 4.
25. Bohdan A. Futey, "Nikhto ne poyazhatyme suddiy, poky vony ne poyazhatymut' sebe," Dzerkalo Tizhya, July 1,2006 at www.zn.kiev.ua/nn/show/604/53834/ accessed July 10, 2006.
26. This view was expressed by U.S. Supreme Court Justice Sandra Day O'Connor, in a speech at the University of Florida Law School, September 9, 2005.
27. Winston Churchill, Speech to the House of Commons, November 11, 1947, cited in The Oxford Dictionary of Quotations 3d. ed. (Oxford: Oxford University Press, 1979), 150.