Is Ukraine Facing a Constitutional Crisis Over Election Results?

November 6, 2012
If so, what will the West Do, especially re-elected Obama Administration?
James George Jatras
Deputy Director, AIU

More than a week following Ukraine’s parliamentary vote, tensions over the results seem to be rising, not falling. While the number of protesters in the streets are miniscule compared to the 2004 “Orange revolution” – hundreds today, versus hundreds of thousands then – Ukraine’s opposition leaders seem to be sharpening their attacks. While Batkivshchina leaders had rejected the results from the beginning, UDAR and Svoboda – which initially appeared willing to accept the outcome – seem to have moved toward a united front in demand of a re-vote, and now threaten to boycott the newly elected Verkhovna Rada unless they get it.

Meanwhile, the Central Elections Commission (CEC) seems willing only to consider a partial re-vote in a few key districts – which is hardly likely to mollify the opposition. Is Ukraine on the verge of a new constitutional crisis? If so, what would be the impact inside Ukraine, and what will Western governments do?

“If all three opposition forces follow up on their threats, the legislature would be deprived of its mandatory quorum of 300 lawmakers,” observes Dmytro Shurkhalo, who writes for the US Government-supported Radio Free Europe/Radio Liberty. “The opposition hopes this would invalidate the legislature and lead to repeat elections. In practice, however, the odds of a repeat election being called are slim. ‘Achieving this would be quite difficult,’ says opposition deputy Yuriy Kluchkovsky, who heads the parliamentary commission on state building and local government. ‘Everybody on the party list, right down to the last person on this list, must personally refuse to take up his or her seat. But this will not solve the question, because this represents only half of parliament.’ . . . ‘Those who won in single-mandate constituencies also can relinquish their seats,’ Kluchkovsky says. ‘The Central Election Commission will then set a date for repeat elections, which will take place within 60 days. But until this election takes place, the parliament cannot be declared invalid.’"

“Under Ukrainian law,” continues Shurkhalo, “the president is ultimately in charge of calling repeat parliamentary elections. Experts say Yanukovych would also be reluctant to disband a parliament strongly dominated by his own party. ‘The decision to conduct an extraordinary parliamentary election would be taken by the president,’ says Oleksandr Zadorozhny, who heads the Ukrainian Association on International Law. ‘If the new parliament is illegitimate, then this Verkhovna Rada will continue to work. Does the president have a problem with this parliament? Not at all, therefore he won't be in a rush.’”

The opposition can press its case, but the result is likely to be a protracted standoff, not a new vote.

If it’s unclear where this leaves Ukraine, it’s even less clear how Western governments would react. In the immediate aftermath of the election, the Western reaction was completely predictable: critical of the overall conduct of the campaign (especially the continued imprisonment of Yulia Timoshenko), but unwilling to declare the results invalid, or even threaten sanctions. "The people of Ukraine deserve so much better," said U.S Secretary of State Hillary Clinton. "They deserve to live in a country with strong democratic institutions that respect the rule of law. And these elections did not advance those goals."

Significantly, the EU High Representative Catherine Ashton and Commissioner for Enlargement and European Neighbourhood Policy Štefan Füle didn’t even reach Secretary Clinton’s level of criticism but instead put the emphasis on finalizing the results. In a mild statement issued by their spokesmen, Ashton and Füle said they had followed closely the vote count and tabulation. They urged the authorities and all parties involved “to take the necessary steps to finalise the tabulation allowing for the rapid announcement of the final results, which should reflect the genuine will of the Ukrainian voters.”

No key Western leader has said anything that would constitute a direct challenge to the results. Nor is there any evidence that Western governments are prepared to support a mass mobilization against the results – a mobilization as yet nowhere in evidence – if the opposition persists in its demand for a re-vote. (This is in sharp contrast to 2004, when the West was primed to declare anything but its preferred result invalid and to support a mobilization to overturn the result.)

To sum up, the initiative now lies with the opposition, but the advantage remains with Yanukovych. At the moment, it does not appear Western capitals are prepared to risk ties with Kiev to change that. Now, in light of President Barack Obama’s reelection for a second term, we can expect continuity on policy toward Ukraine. Secretary Clinton is expected to step down in the coming months but any prospective replacement (Senator John Kerry of Massachusetts has been mentioned) can be expected to maintain her commitment to activism in support of global “democratization.” At the same time, with the likelihood that Obama will try to breathe new life into his faltering “reset” with Russia, it’s all the less probable Washington will provoke a crisis over electoral irregularities in Ukraine.

Meanwhile, the new Rada can be expected to be far more contentious than the last one. In particular, we can expect the West to be concerned not only about the direction of the Yanukovich administration but the parliamentary debut of Svoboda. With its history of extreme nationalism, lauding of pro-Axis World War II figures, and anti-Jewish rhetoric, Svoboda’s representation in the Rada has already been compared to the rise of other such parties, such as Golden Dawn in Greece and Jobbik in Hungary. Jewish groups in the United States, Israel, and elsewhere already have expressed strong concerns about Svoboda as the main threat to Ukrainian democracy and human rights and freedoms in Ukraine