Toppling dictators isn't enough. Successful revolutions also embrace the rule of law.
- By Melinda HaringMelinda Haring and Michael Cecire are associate scholars at the Foreign Policy Research Institute's Project on Democratic Transitions. , Michael CecireMichael Cecire is an independent Black Sea-Eurasia regional analyst and an associate scholar at the Foreign Policy Research Institute in Philadelphia.
The fate of the "color revolutions" — the symbolically-named series of peaceful uprisings in the former Soviet Union — have been terribly disappointing. In Georgia ("Rose," 2003), Ukraine ("Orange," 2004), and Kyrgyzstan ("Tulip," 2005), popular uprisings against entrenched leaders brought to power reform-minded politicians who pledged to transform post-Soviet dens of corruption into modern states. But in all three places, those promises of far-reaching change never really materialized. Yet scholars and democracy promotion organizations continue to mine them for lessons that might apply to the Arab Spring transitions. Here’s why that’s a mistake.
In Georgia, where the endlessly energetic Mikheil Saakashvili embraced the West and free-market reforms with apparent gusto, elite corruption still continued apace. In Ukraine, Viktor Yushchenko’s public spats with one-time ally Yulia Tymoshenko were so vicious that Viktor Yanukovych — the villain of the Orange Revolution — managed to return to office as prime minister in 2006, and won election as president four short years later. In Kyrgyzstan, Tulip Revolution leader Kurmanbek Bakiyev quickly established himself as a political strongman and informally put his son Maksim in charge of all business transactions. After bloodshed erupted in 2010, when citizens refused to sit idly by, after a winter of power shortages and intense price shocks while the first family enriched itself, President Bakiyev fled to Minsk.
So much for the vaunted color revolutions, not one of which has produced a consolidated democracy.
Why did they fail? Quite simply, the rule of law never took root. Too often, the color revolution governments acted above or with little regard to the democratic legal standard to which they held their predecessors. For example, Georgia’s record of protecting property rights was abysmal, Ukraine was inescapably seized by vendetta politics, and Bakiyev presided over Kyrgyzstan as though it were his personal fiefdom. Though the governments all professed a commitment to democracy and the rule of law, the maladies that typified the preceding regimes quickly came to describe the new governments. Supporters made a key mistake: They took the revolutions themselves as the apogee of democracy rather than focusing on the hard, grinding work of institution-building.
Of the three, Georgia has made the most progress. However, Saakashvili’s United National Movement (UNM) was spectacularly defeated in the 2012 parliamentary elections after its reformist credentials were undermined by a prison scandal that broke days before the elections. Prison guards were caught on tape sodomizing prisoners with broom handles, and knowledge of these practices allegedly went all the way to the top. For all of Georgia’s pro-West rhetoric, the scandal showed just how incomplete the UNM’s commitment to the rule of law had been.
To their credit, the UNM did make a dent. It transformed a notoriously bribe-seeking police force into one of the country’s most trusted institutions and ended corruption in university admissions. By 2012, petty corruption had been virtually eliminated. At the same time, many of these reforms — from firing the old police force en masse to rounding up corrupt ex-officials and "thieves in law" (and more than a few political enemies) — were short on due process and often constitutionally questionable. Accusations of elite corruption (such as allegations that members of the ruling UNM and their relatives enjoyed special access to business opportunities) refused to die down.
Despite the prison scandal and evidence of high-level corruption, however, Georgia still has a genuine shot at becoming a consolidated democracy. As things stand now, Ukraine and Kyrgyzstan do not.
Kyrgyzstan has teetered from crisis to crisis since Bakiyev fled the country in 2010. The new constitution, which shifted power from the president to parliament, has brought greater political instability to the country — Kyrgyzstan is on its fourth government since 2010. In June 2010, ethnic violence erupted in the South between ethnic Uzbeks and Kyrgyz and tensions still simmer. There are credible reports that many ethnic Uzbeks have fled the country. Almazbek Atambayev, who succeeded Roza Otunbayeva (the only former Kyrgyz president who does not live in exile), has consolidated power, installed a pliable prime minister, and shows little interest in rule of law reform.
In Ukraine, former Orange Revolution hero Viktor Yushchenko mustered only 5.46 percent of the vote in the 2010 presidential election. After he refused to endorse longtime frenemy Yulia Tymoshenko in the second round and signed a controversial election law, Yushchenko’s 2004 political rival, Viktor Yanukovych, assumed the throne. The new president then proceeded to have Tymoshenko and former interior minister Yuriy Lutsenko imprisoned on trumped-up charges and banned from contesting the 2012 elections. The media has come under relentless assault, corruption has worsened, and the election laws have been changed to benefit Yanukovych’s Party of Regions. A Forbes Ukraine study showed that nine of the top 10 winners of government tenders in 2012 were affiliated with the ruling party or lead state-controlled companies — tellingly, the president’s 39-year-old son, Alexander Yanukovych, leads the list of those making successful bids for government contracts. Yanukovych shows no interest in curbing corruption, despite a professed commitment to reform at the beginning of his presidency.
By contrast, Georgia’s 2012 parliamentary elections offer a rare example of political accountability in the region. Having pushed out Saakashvili’s party, Georgian voters brought in an awkward six-party coalition government to power headed by former businessman Bidzina Ivanishvili. While the new government still appears to be finding its feet, Ivanishvili’s greatest contribution to boosting the rule of law in Georgia may be his choice of justice minister: Tea Tsulukiani.
Applauded by both the incoming and the outgoing government, Tsulukiani’s selection inspires confidence matched by few others in Georgian politics. A lawyer at the European Court of Human Rights in Strasbourg for ten years, Tsulukiani returned to Georgia in 2010 to serve as deputy chairman of Irakli Alasania’s Our Georgia-Free Democrats party, part of Ivanishvili’s governing Georgian Dream coalition. She earned graduate degrees at the elite French university for civil servants, the École Nationale d’Administration, and studied international law and relations at Tbilisi State University. Similarly, Tsulukiani’s three deputies are also graduates of Western universities. But more importantly, Tsulukiani comes to the post with the right ideas.
"It’s the public institu
tions that we are building, not just individuals that are driving and sustaining the legal reform process," she said during a recent visit to Washington. "I would like the legal system … [to] survive me and any next minister of justice of Georgia. Public institutions that are open is our main goal — inclusive, transparent and trusted by our citizens." Tsulukiani has stressed that the new government must be built from the bottom up, with a particular emphasis on human security.
So far, the ministry has sought to dramatically increase transparency. Free copies of laws are now available for the first time. A bill is pending in parliament that would allow courts to record hearings, which makes falsifying testimony more difficult. In addition, the media would be permitted in the courtroom. Within the ministry itself, Tsulukiani made salaries transparent and evened out salary disparities between employees with similar experience and positions. Previously politicized, salaries now reportedly correspond to seniority and responsibility. This spring, she pledged to renew a fight against corruption and to return to the issue of judges’ salaries, which were increased under the previous government, but "not enough."
The previous government was good at eliminating low-level corruption but elite corruption remained prevalent, Tsulukiani acknowledged: "We need a system where no elite corruption is allowed."
Tsulukiani must also deal with the thorny issue of complaints against the previous government in an even-handed way. Since the new government came to power, the Ministry of Justice, according to Tsulukiani, has received 8,000 complaints but has opened only 30 criminal cases. A temporary state commission — an independent body to review alleged cases of abuse by the previous government — is currently under discussion. She has welcomed international observers, such as the Organization on Security and Cooperation in Europe/Office of Democratic Institutions and Human Rights, to monitor these high-profile cases.
More to the point, despite overwhelming public support for redressing the previous government’s excesses, the new government has committed itself to approaching the issue methodically and deliberatively. None of the high-level officials being accused have yet to be convicted and few are being detained. Bacho Akhalaia, the infamous ex-defense minister who resigned after the prisons abuse scandal, has been offered (and refused) a jury trial. Gigi Ugulava, the mayor of Tbilisi and supposedly onetime crown prince to Saakashvili’s presidency, has avoided having his mayoral term suspended. Despite widespread opinions that the Georgian judicial system — still primarily composed of UNM-appointed officials — remains pro-UNM, that hasn’t stopped Tsulukiani from going through the proper judicial channels and respecting the process.
Her ambitious spring agenda also includes a number of important structural changes to the legal code. The legal practice of plea bargaining was used extensively by the previous government to accelerate adjudication but also, more worryingly, to siphon some 37 million lari (approximately $22.3 million) from Georgian citizens to feed public coffers. One of Tsulukiani’s deputies recently went to California to observe the plea bargaining system and reported that "the only thing in common between plea bargaining in the U.S. and Georgia is the name." Tsulukiani wants to limit plea bargaining to petty crimes only, which would limit the potential for extortion.
Largely a holdover from the Soviet approach to justice, defendants are guilty until proven innocent, as an impossibly high 99 percent conviction rate attests. To remedy this, Tsulukiani’s justice ministry plans to reform the criminal code to build-in stronger systemic protections for defendants. In addition, Tsulukiani plans to give broader powers to police and prosecutors to proactively investigate human trafficking, which she warned could cause official rates of human trafficking to spike this year.
Despite such a bold agenda, Tsulukiani is realistic and aware of the difficulty of the task before her. "Georgia’s deep-rooted culture of impunity" could pose a serious challenge to reform, she acknowledged.
Nevertheless, the government remains committed to the task. "There’s a unique opportunity for the court system to become independent now," said Georgian Speaker of Parliament David Usupashvili on March 14 in Washington.
Can Tsulukiani implement these reforms in Georgia’s hyper politicized climate? Even if she does, institutions are only one piece of the puzzle. Ultimately, developing the rule of law depends on a degree of societal buy-in that goes beyond the clash of personalities or the tumult of Georgian election cycles.This means matching good processes and mechanisms with the less-concrete, but equally critical element of nationwide, cross-party acceptance. In this effort, Tsulukiani will need cooperation not only from Ivanishvili and Georgian Dream’s famously diverse membership, but also from Saakashvili and his still-influential UNM.
However, Saakashvili’s party and his rivals in the new government have been at war since the election, making the prospect of consensus-building a daunting task. Issues that ought to have won cross-party support, such as the reopening of Russian markets to Georgian wine, have been depicted by Saakashvili as acts of treachery. And though it won 85 seats in parliament in the last election, the Ivanishvili-led coalition government does not have the required 100 votes to pass constitutional amendments.
However, a steady trickle of defections and independent caucusing within Saakashvili’s party may put reform within reach. While the UNM claims this is a result of government pressure, the likelier explanation is that the UNM’s diminished position has regional representatives exploring alternatives to maximize their bargaining power. Even in this politicized environment, Tsulukiani may get the votes she needs to embark on a process of genuine legal reform.
Small but important signs of cooperation are emerging in Georgia. Recently, the two sides issued a joint document on foreign policy, codifying Georgia’s Western orientation. And the new government is set to issue a blanket amnesty for non-violent offenses to employees of the previous government. These and other such steps can help build bridges between the new government and the old, helping make Tsulukiani’s proposed reforms possible and lasting.
For Georgia’s sake, let’s hope they succeed. If it does, it could serve as a powerful example to other countries, like Kyrgyzstan and Ukraine, that have seen their desires for change thwarted by infighting and endemic corruption.