Archive for May 22nd, 2012


Are there limits to democratic legitimacy? Ukraine’s Constitutional Assembly

May 22, 2012

How far and how oblique can a democratic mandate be before it loses legitimacy?

As regular readers of this blog will know, in 2010, at the request of Arseniy Yatseniuk (leader of the opposition party Front for Change), shortly after becoming president Viktor Yanukovych created a Constitutional Assembly tasked to examine and recommend amendments to the Ukrainian Constitution.

The chairmanship of this Constitutional Assembly was given to the first president of independent Ukraine, Leonid Kravchuk, and is compromised of representatives from all political parties currently with MPs sitting in the RADA.  It is a long and labourious  task made longer and more labourious due to various opposition parties withdrawing, reentering the process cyclically in attempts to frustrate the process when they aren’t happy with the current government over other issues.  It is a joint committee lever they can pull that has some immediate effect.

Currently it is Arseniy Yatseniuk and his Front for Change party which have now withdrawn from the process.


One of the suggestions is that the Constitution be amended so that the President be elected by the members of the RADA and not by direct public voting as is currently the case.

Outrageous?  Unheard of? – Well I will return to that, but for now it is sufficient to note that currently, with 3 years before the next public presidential vote, the current president would come in 3rd behind Arseniy Yatseniuk and Yulia Tymoshenko respectively according to several public opinion polls.  However, should the ruling party retain its majority in the October elections and the constitution be amended before the next 2015 presidential election, the current incumbent would remain president in all likelihood.

As somebody who thinks another 5 years of Yanukovych or Tymoshenko would be a retrograde step for Ukraine, the fact Yatseniuk currently sits in 1st place if there was a presidential election tomorrow by public vote is quite encouraging.  It is also clear why Yatseniuk would not want any changes to the president being elected by direct public vote and has thus pulled out of the Constitutional Assembly effectively stalling its work once again.

So how oblique and how legitimate would a president be if voted into office, not by direct public vote, but by MPs who are voted into office by direct public vote?

Well, the German president isn’t directly voted into office by the public.  The German president is voted into office via the MPs of the Bundestag and an equal number of representatives from the 16 regions of Germany.  A major difference however, is that the German president has a largely ceremonial role and the governance of the country is parliamentary and not presidential – unlike Ukraine.

Are there any European systems where the presidents are not directly elected by the people but who have the power of the Ukrainian president to instigate the adoption of laws, set foreign and domestic policy, chastise directly elected MPs and be far more than ceremonial figureheads?

Well, the most powerful people in the EU are the EU commissioners and presidents who are responsible for introducing EU laws, directives, policy and bullying national elected leaders into towing the EU line.  None of these people are directly elected by the people of Europe but are appointed in a very similar fashion to that of Germany and the proposed changes for Ukraine.

Therefore, should Ukraine adopt the proposals (and I really hope it does not), it would be following a very European model – that of the European Commission – who are extremely powerful and yet never face a public vote and never hold a direct public mandate for the office they hold despite the power that comes with that office.

Now if more than half a billion people across the EU allow themselves, and their directly elected representatives, to be dictated to by the powerful and rather oblique democratic legitimacy held by those within the European Commission, (and those in the European Commission claim to have democratic legitimacy via being elected by elected representatives), should the people of Ukraine have anything to be concerned about?

After all, should Ukraine ever join the EU, its elected leaders will be lectured, bullied and coerced by those within the European Commission the people of Ukraine (or any other EU nation) never had the opportunity to vote for.  Does it therefore matter if the Ukrainian president is appointed via the same stretch of democratic legitimacy as well?

My own view? – Well that has always been that Ukraine should not join the EU (at least under the current dysfunctional, wasteful, overly bureaucratic, cumbersome and ever increasingly centralised model).  The DCFTA and AA is as far as it needs to go when it eventually gets there.  Therefore my view on the democratic legitimacy of a Ukrainian president is that it can only come via a direct public vote, as hopefully that office will never become in part (or in full) subservient to European Commissioners who legitimacy is oblique, via Ukraine actually joining the EU.

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