| THIRD ANNIVERSARY OF THE ORANGE REVOLUTION. ON RENEWAL OF UKRAINE'S POLITICAL REGIME 
OLEKSANDR PASKHAVER, LIDIA VERKHOVODOVA,
Center for Economic Development, Kyiv The starting point for the renewal of political regime in Ukraine was undoubtedly the Orange Revolution of November 2004 that resulted in the removal of President Leonid Kuchma, who incarnated the former regime along with the majority of the bureaucrats who underpinned its functioning.
The Orange Revolution has stimulated significant changes in society. The corrupted executive chain of command constituting the basis of the old regime has been destroyed. The point in this case is not that corruption has been eradicated as a phenomenon, since it is quite steadfast and can be found in all the countries even if on a different scale. Public policy has ceased to be the immediate instrument of promoting corporate interests or of what is called oligarchic financial industrial groups; social goals have become a priority thereof. The Revolution has given impetus to formation of the civil society. Independent mass media have emerged. For the first time, the authorities have gained publicity and had to be constantly accountable to the society for their actions.
At the same time, on coming to power the political forces of the Orange Revolution did not initiate a cardinal renewal of the political regime provided for by the constitutional amendment that had become effective since 1 January 2006. The reform provided for the transformation of Ukraine from a presidential-parliamentary republic into a parliamentary-presidential one. The charisma of newly-elected President Viktor Yushchenko who headed the Orange Revolution, obtained quite a broad recognition in the society; and the issue of the legal specification and practical limitations of his authority was not raised at all.
This issue became acute only after the ordinary parliamentary elections in March 2006 brought the Orange political forces People's Union "Our Ukraine" (NSNU) and Yuliya Tymoshenko’s Bloc (BYuT) to the opposition, and the new ruling coalition was headed by the Party of Regions that had united large financial industrial groups and the bureaucracy, which used to be closely linked to the regime of the former President Leonid Kuchma. The new ruling coalition along with the government headed by Viktor Yanukovych seized on the situation when the constitutional amendments did not clearly and consistently define the authority of the President, the government and the Parliament to notably limit President Yushchenko's authority ignoring the parliamentary opposition. Under these circumstances the confrontation between the President and the Prime Minister and between the ruling coalition and the opposition sprang, intensified and grew in the end into an acute political crisis of 2007.
The political crisis, which culminated in the dissolution of the Parliament ruled by President Viktor Yushchenko, is an event without precedent for our newest history, short as it is, but one that abounds in conflicts. The country has not yet seen such a total mutual non-recognition of actions of state authorities and such an overt and ostentatiously shocking violation of law as well as that of informal norms and arrangements, regulating the political process. What is surprising is that with such a dangerous development of the political conflict and in spite of the militant rhetoric of politicians and constant appeals to society the business circles and the people at large remain calm and even indifferent. Relative calmness has also been demonstrated by the economy, its growth on the whole corresponding to the trends and influence of basic factors of a non-political character.
Both total violation of laws regulating the political process and indifferent attitude to this on the part of the people would be impossible in a law-abiding society. However, historically for the Ukrainian people law-abidingness has not been a moral imperative. Nevertheless, this fact does not fully explain why it is now that the Ukrainian political elite has made war against the Law and war between the laws possible and necessary.
In this article we will try to show that such demeanor of the Ukrainian political elite in the process of forming a new post-Orange, post-Kuchma political regime is natural and understandable; what is more, it was in fact generated by the condition of the society on the whole and of the political system in particular after the Orange Revolution.
Leonid Kuchma’s Political Regime: the Causes of the Fall
If you consider the political regime as such, it is not simply the system of government and the methods of exercising political will inherent to it. One should characterize a political regime in broader terms: it constitutes a certain social and political balance where society recognizes the authorities as legitimate, or at least puts up with their existence. Alterations in the social foundation of society – in the structure of influential social groups and their interests – lead to disturbing the socio-political balance.
By the start of the Orange Revolution in Ukraine this imbalance had been quite clear.
The financial industrial groups – close to power – gained monopolistic control over the economy. Enjoying the support of the government they got hold of the potentially profitable sectors of the economy, and used the state resources and budget for free or on preferential terms. The state policy virtually transformed into an instrument of serving their interests. All this deterred the development of new social groups seeking freedom of self-expression. Those are millions of self-employed people (small businesses), which were denied support of the government. During the Orange Revolution they were joined by larger businesses, highly qualified employees as well as big businesses which lost in the fight for keeping close to power and were cut off the sources of the monopolistic rent.
Authoritarianism with limited democracy, the existing corruption as a power technology triggered protests among pro-European citizens, especially the youth brought up in a non-Soviet atmosphere where there was no paralyzing fear before the power.
The authorities lacked flexibility and foresight to adequately react to fundamental changes happening in the social structure of society. The disturbed socio-political balance weakened the powerful regime, narrowed room for maneuver, which predetermined its destruction by the Orange Revolution.
It goes without saying the Orange Revolution as any great social movement was well organized, and could be both interpreted in Alexander Duma’s style as a conflict of personal interests, and as a conspiracy. But all these external manifestations do not rule out the fundamental objective social reasons for bringing it about and destroying the political regime incarnated by Leonid Kuchma.
The Orange Revolution: Corrosion of the Symbiosis of Formal and Informal Norms
Any political regime is a unity of formal and informal forms, which together provide for its institutional capability. Formal norms create its legal field. In economic, political and any social practice the legal field is complemented by a dynamic system of informal norms and arrangements. In the framework of a political regime it is the elite that holds the leading role in establishing specific informal norms and making definite arrangements that determine both the policy and the social practice of the power.
System interaction between formal and informal norms in politics and in governing a state is a universal phenomenon. If you take a certain country the important question is how widespread and legal the informal norms are, and the way they interact with the formal ones. In Ukraine, a country which established its statehood only very recently, a country of immature democracy that lacks historical traditions of law-abidingness, informal norms and arrangements of the elite that set material interests of the active actors and their own ambitions have played a determinant role in the social processes and more than anywhere else in politics. The whole of the informal norms securing capability of the pre-Orange government ultimately determined a lot of political decisions which later took officially legal form.
Application of Law in Ukraine, characterized by the typical liaison of ‘formal-informal norms’, only enjoys secondary roles. And this has had a strong deforming influence on the nature of the law currently in force. It is partly undeveloped, incomplete and inconsistent, partly knowingly distorted with a view to enhancing opportunities of corrupting the decision-making process and using ‘manual’ regulation.
The Orange Revolution has led to the removal of the existing political regime and at the same time disabled the system of informal norms, procedures and arrangements inherent to it (the very system, not just its certain elements). In doing so it revealed the incapacity of the law currently in force (of the formal norms) to serve independently as a legal field, to provide rules for solving acute social and political conflicts.
Political Elite: Incapable of Making Strategic Compromise
The formation of a new system of legal norms is not only a lengthy process, but also one that requires preliminary elaboration of approaches. That is why the main political actors immediately after the Orange Revolution were faced with a natural necessity to come to a negotiated agreement on the new set informal norms, procedures and arrangements instead of those destroyed by the Orange Revolution. In the given conditions a successful adjustment of the existing formal, legal system, including the Constitution, would only be possible on the basis of such a public consent.
The inevitability of this procedure might have inspired the politicians to enter into negotiations about a peaceful formation of a new political regime. However, this did not happen. The incapacity to make such strategic compromises has become a test that brought to light immaturity of the Ukrainian political elite. To a certain extent this also has shown immaturity of civil society as it proved incapable of making politicians come up with strategic compromises, and in the first place about forming and observing the efficient rules of the political game.
History proves the aftermath of a revolution has its direct tasks – removing the basis of the old regime and struggling to win support of the population, which is hardly a favourable situation to hold negotiations and make political compromises. So President Viktor Yushchenko’s team that had come to power right after the Revolution was not inclined to hold negotiations either. It was wound up by the tough pre-election fight and throughout the long period of remaining in the opposition had got used to radical confrontation, which excludes any compromise with their political rivals. During these years there has been some kind of selection as to who will remain part of the team. Only those inclined by their character to radicalism could devote themselves to struggling against the existing regime that had and exercised in practice its pressure.
The negotiations process and search for a compromise between different political forces actually started much later, a year and a half after the Orange Revolution when the power was reorganized and a threat of the former regime restoration appeared.
The Party of Regions headed by Viktor Yanukovych gained in the ordinary Parliamentary elections of March 2006 a significant majority of 41,3 % for the first time after losing the presidential elections. The mistakes and failures of the orange team led to losing popular support. The distribution of votes between them was the following: BYuT – 27,8 %, NSNU – 18 %, the Socialist Party of Ukraine (SPU) – 6,9 %. Apart from these major political forces the Communist Party of Ukraine (CPU) also entered into Parliament with 4,7 % of the votes.
Enjoying the evident majority of votes the orange faction after lengthy negotiations did not manage to arrive at a compromise on the choice of candidates to the positions of the speaker of the Parliament and the Prime Minister. It came as a surprise when SPU decided to leave the Democratic Forces Coalition, that had already been formed and registered. SPU’s shift to the opposing political camp enabled the Party of Regions to register a new anticrisis coalition on 11 July 2006, which was also formed by SPU and CPU. NSNU and BYuT were forced to become opposition.
The development of political confrontation and negotiations that followed is the eloquent evidence of the inadequacy of the existing legal field and the elite’s incapacity to peacefully work out strategic compromises.
In the new balance of political power President Viktor Yushchenko initiates the first attempt to reach a strategic political compromise, defining a common vision of the country’s future. New procedures for achieving negotiated agreements on the key issues are introduced.
The agreement on the political compromise was formulated as “The Universal of National Unity” that was signed on August 3, 2006 by the party leaders who got into Parliament except for Yuliya Tymoshenko who did not support the President’s initiative. This political document stated the compromise decisions on the main moot points: the unitary state, Ukraine’s integration into the EU, joining the WTO, cooperation with NATO, recognition of the Ukrainian language as the only state language, depolitization of the public service and other issues.
On the very same day the President agreed to appoint Viktor Yanukovych (leader of the Party of Regions) Prime Minister of Ukraine on condition that his supporters join the government. Out of 22 ministers in the newly created coalition government 8 posts were taken by NSNU and 2 by SPU.
As an instrument of conciliation the President suggested holding regular ‘round tables’ with the participation of the speaker of the Parliament, leaders of parliamentary factions and Prime Minister Viktor Yanukovych.
It is only recently that Ukrainian political actors have come to realize the importance of the Universal as the basis for forming a new political regime in the country. Yet at the time the predominant reaction of most politicians and influential mass media to this only attempt at reaching a strategic compromise between the warring political forces was negative (sometimes even mocking and contemptuous).
The next eight months represent a sequence of tactic agreements of the President with Prime Minister Viktor Yanukovych, which were constantly violated by the former.
The anticrisis coalition and Mr. Yanukovych’s government almost immediately proceeded to the revision of the Universal’s provisions. They publicly and at the international level expressed doubts that there was a need for Ukraine to join the WTO and the EU, and to cooperate with NATO. The Party of Regions reiterated its former slogans about recognizing Russian as the second state language, etc.
There was a clear tendency to seize the monopoly power of the system.
All of the President’s supporters were ousted from the government except for the Minister of Defense.
Purposeful efforts were undertaken to informally and formally limit the President’s powers. Among the informal actions of the government the most noteworthy was the ostentatious refusal to carry out the President’s orders, to recognize his decrees that have not been preliminarily agreed with the government, as well as the attempts to pursue foreign policy ignoring the President and the Ministry of Foreign Affairs headed by his supporter. Moreover there were numerous procedural measures aimed at weakening the President’s prestige in the eyes of the public opinion. The government finalized and got the law “On the Cabinet of Ministers of Ukraine” reducing the President’s powers and increasing those of the Prime Minister passed by the Parliament.
The culmination of the political crisis was when Mr. Yanukovych publicly declared in his speech of March 23, 2007 that the ruling coalition had proceeded to form a constitutional majority in the Parliament by way of attracting members of the opposition factions to join in, which would enable it to paralyze the right of veto belonging to the President.
The President regarded such a move as violation of free expression of popular will in the elections of 2006 and suspended the Parliament’s powers by his decree of April 2, 2007 designating extraordinary parliamentary elections. The ruling coalition and the government qualified the decree as unconstitutional, and refused to obey it.
This produced an open confrontation of political forces accompanied by the flagrant violation of law. This process affected the Constitutional Court, the Office of the Public Prosecutor, and ordinary judges.
The occasionally reached agreements of that period were tactical truces by nature, violation of agreements becoming quite a typical phenomenon regarded as a successful political move. The agreements “died down” before even coming into force. And the point here is not that the political forces are unable to make arrangements, but rather that these arrangements lack quality. They are superfluous, situational, overloaded with personal interests and virtually incapable of remaining valid for a long time, as they are not aimed at elaborating a common development strategy.
Compromise is regarded as a tactical exchange of concessions while struggling to gain a decisive victory. If compromise is not a product of a common strategy then there is no basis for mutual trust and continuity in politics. This is not to suggest artificial marrying up the ideologies and working out common programs. That would contradict the principles of democratic competition, and simply common sense. There is a need for an agreement on the very general outlines of the country’s future and its place in the world, in particular as a basis for an open and productive political competition.
It is the lack of a common vision of the country’s development strategy and, what is more, the lack of serious efforts to work out such a vision, that adds to chaos and ostentation of the political game in Ukraine. And this appears to be fraught with dangerous destructive medium- and long-term consequences. Just as in an unstable economy businesses are forced to concentrate on the quickly compensated projects, politicians explore the topics that bring immediate political effect however dangerous the long-term consequences might be. The most striking examples of this sort are bringing up populist projects and drawing on the regional discrepancies in the political struggle.
The competition of populist programs for the first time became evident in the course of the struggle of two main candidates to the post of the President of Ukraine in November 2004. Viktor Yanukovych – the candidate supported by the authorities – used his position of the Prime Minister to initiate a number of governmental measures to massively increase the minimum wage and pensions, which triggered off the inflation. Viktor Yushchenko – the opposition candidate – on his part came up with several large-scale social programs. To put these programs into practice the first Orange government had to raise consumption in the expense budget from 73,1 to 92,4 billion hryvnias or by 24,4 %. This increase was provided for by a partial reduction of the expense budget insofar as the development goals were concerned, and by increasing the fiscal burden on the business sector.
The extraordinary elections of 2007 turned into a sheer competition of populist programs. All the leading political forces were trying to excel one another in the promises they made which were meant to attract popular attention. Among them – the increase of the maternity pay, of the pensions, of the minimum wage, etc. BYuT managed to win a significant part of the votes by making some unexpected promises, firstly, to abolish the obligatory military service from January 1, 2008, and, secondly, to compensate for the loss of earnings to the depositors with the former Savings Bank of the USSR within two years.
Populism is a “political drug” and public’s inclination to welcome the populist projects or, more broadly, – to view all the difficulties of the world in the light of the doctrines proposed by the populists – should be diagnosed as a dangerous social disease. Politicians who make the public addicted to the “drug of populism” should be given an appropriate appraisal. It would be short-sighted and dangerous to reduce populism to unrealistic promises of rapid increase of the people’s incomes alone. Populists offer a simple and fast solution to any problem, be it reducing corruption, increasing the birth rate, building up a professional army or deregulating the economy. The point is not that people are deceived, but rather that they start believing in the possibility of a rapid and simple realization of such decisions, which undermines popular support for the difficult long-term realistic projects.
Populism is always accompanied by disregard for strategic work. The growth of budgetary allocations to the population without stimulating investment, without creating social infrastructure, without initiating reform in the social sectors of the national economy – this is what is called populism. The key tasks for Ukraine, such as the formation of the Ukrainian civil nation, the enhancement of the state’s capability, the improvement of the quality of life, the creation of a competitive environment in all the sectors of the economy, can only be achieved through strategic long-term planning, continuity in politics and unremitting efforts.
Radical politicians can sometimes formally put the populist projects into practice, but this is always done at the expense of development of the society as a system. By blocking the realistic responses to historic challenges, populism disarms the country.
Consider another example. Politicians must regard the regional, ethnic, religious and philosophical differences as the country’s riches and use them to produce a better overall result rather than destroy it. Once the goal is set in a frank manner, the technologies will turn up. If we consider President Leonid Kuchma’s policy we will notice an evident aspiration for a synergy of regional differences. To put it simple, the East was busy with the economy, the West – with the state building. As a result throughout the whole of Leonid Kuchma’s term of office, save the easily resolved Crimea conflict, there were no serious political collisions between the East and West of Ukraine. It is without any particular public conflicts that some highly contentious provisions on the state language, European way of development, and NATO policy were adopted by the legislative power.
It appears evident that the means of enforced arbitration and social balancing exercised by President Leonid Kuchma cannot be straightforwardly applied to the post-Orange society. But there are no noticeable active efforts geared to finding new methods of synergy of regional differences, except that the problem is persistently denied, and the short-sighted tactic of waging political wars is turning these differences into acute public discrepancies.
Conflict with Law and Building-Up of a New Political Regime
If political culture does not facilitate a peaceful elaboration of strategic compromises, and the contradictory and incomplete legal field does not provide efficient instruments for building a new political regime and does not deter political hawks, a conflict, which does not only involve a great many aggressive manipulations but also a conflict with law, becomes inevitable and logical.
Thus, the current political crisis, characterized by a marked violation of law and conflict with law, is a logical consequence and continuation of the Orange Revolution. The political crisis in modern Ukraine represents the inevitable conflict technology of building a new political regime.
Widespread is the belief that the main cause of the crisis was the constitutional reform that had altered the distribution of power between the bodies and branches of power and deepened the conflict of interest and uncertainty of the legal field in this sphere. However, the important factor that caused the crisis along with what was aforementioned was the removal of the complicated system of interaction between formal and informal norms, which used to enable President Leonid Kuchma to be the supreme arbiter both in politics and economics. Viktor Yushchenko has not become such an arbiter on the ideological grounds and due to his personal qualities. This triggered off the conflict with law, and the constitutional reform has only added fuel to the flames.
It is possible that in the given circumstances (the balance between formal and informal norms) the process of establishing a new political regime will not avoid disputes and will be lengthy and iterative. Each successive iteration will introduce a part of the informal arrangements, which will then alter the formal norms. Thus, bit by bit, a new system of institutions will be formed that would be adequate to the new political regime. The September 2007 extraordinary elections and further arrangements on the distribution of power are nothing but an episode in this complex process.
This is a favorable scenario according to which the crisis will make both the society and politicians more mature, even if not very fast. Many factors indicate that one can expect the favorable expectations to turn out real. The recent September elections to the Verkhovna Rada revealed that all the political forces came up with more specific promises, even if they are populist in nature, and therefore they can be controlled. The elections and vote-counting have become quieter and the negotiations on the coalition building are more program-oriented.
The calm attitude of the people to the political crisis signals that different actors of the economy, including common people, regard the crisis as a matter of internal politics and do not fear significant changes for the worse in the economic activities.
Time will show whether these favorable expectations will come true.
By way of overcoming the current political crisis Ukrainian society is developing the basics of democracy, though not in a very elegant or ethical manner. But there is no other way of learning freedom and democracy but to practice them.
November 22, 2007
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