COMMENTARY OF THE KHARKIV HUMAN RIGHTS PROTECTION GROUP ON POLITICAL REFORM IN UKRAINE
Political reform as of 4 November 2004 is reflected, from the point of view of legislation, in the Draft Law № 4180 on introducing amendments to the Constitution of Ukraine in the final version of the Temporary Special Commission of the Verkhovna Rada of Ukraine responsible for the elaboration of draft laws on introducing amendments to the Constitution of Ukraine from 21.06.2004.
The Draft went through the necessary procedure for consideration in the Constitutional Court of Ukraine and received the appropriate consent from the Court to enable it to be submitted for vote to the Verkhovna Rada of Ukraine.
Draft № 4180 differs significantly from Draft № 4105 in the latter’s form when voted on in the Verkhovna Rada of Ukraine, where it did not receive the necessary qualifying majority of votes (300). At the same time Draft № 4180 is in its present form very different from the Draft with the same number which was considered by the Venetian Commission in December 2003 as «the third Draft».
It is well-known that in its conclusion of 12-13 December 2003, the Venetian Commission commented that «the Draft on introducing amendments № 4180 is identical to the Draft on introducing amendments № 4105, with the exception of some transitional provisions concerning the dates of elections and the coming into force of the constitutional reform (Paragraph 88). There is now no question of describing the Drafts as identical.
In the present, updated form, Draft № 4180 is significantly different from its forerunners (№ 4105, the first version of № 4180), since it allows for the election of the President in nationwide elections. The previous Draft, considered by the Venetian Commission in December 2003, had allowed for the election of the President of Ukraine by the Verkhovna Rada.
In general the updated Draft № 4180 is a considerably less radical draft law for amendments to the existing text of the Ukrainian Constitution than the above-mentioned forerunners. However, even in its updated form, it does not, in our opinion, contribute to positive changes in the political and constitutional system of the Ukrainian State.
Like its unsuccessful forerunners, the Draft allows for the election of State Deputies of Ukraine on a purely proportional basis. In this respect it confirms – now on the highest constitutional level – the procedure of elections which had previously been allowed for by current legislation. In our opinion, the election of deputies to the Ukrainian parliament solely on the basis of proportional representation is, both at the theoretical and practical level, a manifestly hurried and insufficiently considered attempt to improve Ukrainian constitutional and, particularly, electoral legislation.
As the result of a well-known political compromise, a proportional system of elections to the Ukrainian Verkhovna Rada (parliament) at the moment exists on the level of an ordinary law. It would seem expedient to try out this system of elections, which is new for Ukraine, to the Verkhovna Rada first of all in practice, and only then, depending on the results of this experiment, decide whether it is necessary to introduce a proportional system of elections at the constitutional level also. For the moment it seems that State Deputies, fired by the political struggle and for this reason seized by reformist ideas, are trying to change the constitutional text in favor of a system which has thus far in no way recommended itself in practice. In the constitutional sense, this seems, at very least, not ideal. In the political sense, it demonstrates lack of judicial balance and unwarranted haste.
Draft №4180 introduces the possibility (in fact, the necessity) of uniting a deputy’s mandate with the status of members of the Cabinet of Ministers of Ukraine. In our previous commentaries regarding other reformist beginnings of the same type, we have already mentioned that the given procedure both in effect and from a formal judicial point of view undermines provisions of the current Constitution of Ukraine: «State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.» (Article 6 of the Constitution of Ukraine)
It is obvious that, in giving its consent to the reform, the Constitutional Court yet again was governed less by judicial and legal considerations, than by situation-linked and political aims and factors. A special norm about the separation of powers in the Constitution is (should be!) no declaration of intent, but a strict judicial construct, protected from amendments by a special procedure for introducing changes and amendments to the first section of the Constitution of Ukraine.
Modern constitutionalism can demand more or less emphasis on the separation of powers. However if the separation of powers is declared as a specific principle (the cornerstone) of the current constitution, then this must not be disregarded. As an idea in Ukrainian constitutionalism, the separation of powers has existed since the time of the Constitution of Pylyp Orlik[1]. It was present in the Constitution of the Ukrainian National Republic of 1918 and is a significant element in the Ukrainian constitutional tradition. In Draft № 4180 the specific norm principle about the separation of powers is clearly ignored. If the political reform in its present shape is implemented, this will mean that the Constitution of Ukraine has become even more demagogic and formal with respect to its most important key provisions. To the list of fictitious, in reality not protected by any judicial procedure, socio-economic rights of citizens will be added yet one more fundamental principle…
Draft № 4180 also extends the period of authority of the Verkovna Rada to five years. This norm is not fundamental, therefore it can clearly not serve as sufficient argument for interfering with constitutional integrity. The Draft also sets out radical demands with regard to the incompatibility of a deputy’s mandate as parliamentarian with other forms of activity prohibited by the Constitution. In this way, non-compliance with demands concerning incompatible activities is made into grounds for swift, and in our opinion, excessively radical suspension of a deputy’s powers.
Moreover, Draft № 4180 introduces a rule about removing parliamentary mandate from deputies in cases where «a State Deputy of Ukraine, elected from a political party (electoral bloc of political parties), does not belong to the deputies’ faction of this political party (electoral bloc of political parties), or leaves (is expelled) from such a faction».
Since the Draft does not provide a comprehensive list of grounds on which a State deputy could be expelled from a faction, this means that the fate of a deputy becomes totally dependent on the policies and the will of the faction leadership (effectively, of the party hierarchy). It is clear that in real circumstances of time and place, this will almost totally stunt originality, and independence of political platform of State deputies, will introduce party control over their thinking, words and actions, and will – de facto – turn each of them into a voting robot. In our opinion, this demonstrates some kind of entirely unwarranted, primitive, in both the political and the judicial sense, and obscurantist «arithmetical» approach to parliamentary activity.
People (deputies, thus, being no exception) are complicated political creatures, for whom it is psychologically natural «to not agree». In their conclusions and their decisions, they can be guided not only by simple political calculation, «pluses» and «minuses» on scales of clear choice, but also by subtle intuition, certain brainwaves, political subconscious, etc. Yet, the Draft proposed by modernizers wants to know nothing about such aspects. One could even say that, when it comes to defining principles of party-deputy discipline and factional organization, the Draft uses as its principle some kind of vulgar determinism, school pupil obedience, subordination to the ideas of the worst form of collectivism.
We must, however, remind reformers that in modern parliaments of a European type it is precisely variety of thinking, polyphony of ideas that are valued, and not political monotheism from party pawns in their rows.
Really, what is the sense in such a case of having 450 State Deputies, alive and with thoughts and a mind? In fact, if they are all subject to absolute factional (party) discipline, then there is no real need to even have them in the hall for plenary sessions. Their function could be carried out perfectly well by party bosses (leaders of factions), who, according to the results of proportional elections would be issued the necessary number of plastic voting cards. One of the party leaders would have more cards, another less – in any case, live and «pluralistic» Deputies would be entirely superfluous here.
Another fundamental shortcoming of Draft № 4180 is, in our view, the placing of some ministers of the Cabinet of Ministers of Ukraine (in the sense of their appointment and actual subordination) under the President of Ukraine, and the rest – under the Verkhovna Rada and Prime Minister of Ukraine. As we have already mentioned elsewhere, this new system of appointments and subordination will result in a situation where the foreign and domestic policy of Ukraine are in completely separate hands.
Since the post of President of Ukraine according to Draft № 4180 remains not only representative, but genuinely influential regarding some specific executive functions (foreign policy, internal security and defence), in practice this could lead to a deformation in the executive vertical, and to non-constructive competition between the President and Prime Minister within the framework of one of the branches of state power.
If one considers that there is already competition between the roles of the speaker of parliament and that of the President, the logic of the constitutional reformers seems even less comprehensible. In simplest terms, competition between high-ranking posts which belong to different branches of the government is constitutionally justified and normal. However, it is impossible to understand the logic, either theoretically or in practice, for having competition between high-ranking state figures within one (in this case, executive) branch of the government, still less to support this.
The authors of the updated Draft № 4180 were clearly looking for a strategic compromise, but the way out they found has turned out to be a compromise of short-term tactics. As a result, a legal system, already criticized by the Venetian commission is again raised to the constitutional level. We believe strongly that such a solution and version of political reforms would make Ukraine less a parliamentary republic, than an unwieldy legal conglomerate, inconsistent in the constitutional sense with new European political formations.
The ominous fact that, according to the updated Draft № 4180, the President of Ukraine can dissolve parliament in three cases (each of which can be the result of a broad range of reasons) is not consistent with the professed goal of transforming Ukraine from a presidential to a democratic republic. If the powers of the President of Ukraine as far as dissolving parliament is concerned are tripled in comparison with the present situation, then what kind of conscious «diminishment» of the President’s status in favor of parliament can we speak of?
Although today the President is directly involved in forming the Cabinet of Ministers and appointing heads of local state administration, in practice ministers and heads of local state administration also depend to a great extent on the Prime Minister. Thus, having appointed some members of the Cabinet of Ministers and heads of local state administration, the President leaves the latter under the supervision of the head of the Cabinet of Ministers. Of course, if Ukrainian governors, rather than being appointed by the President, were elected by their constituents, it could prove sufficient reason for constitutional reform. However there is no talk of electing governors at present. The principle of direct dependence of governors on the President has remained unchanged according to the reforms.
As for the relationship between the President and the Verkhovna Rada of Ukraine, Draft № 4180 not only does not change this in favor of the Verkhovna Rada, but in fact leads to an even greater level of dependence of the parliament on the will of the President.
Therefore, if according to the reform the influence of the President within the framework of the executive branch of power is weakened, this should be considered a change in political tactics. If, in this, presidential control over the Ukrainian parliament is several times greater, then this should be understood as a change in political strategy. Moreover, such a change is not directed towards a parliamentary republic. Therefore, in actual fact, the reform does not make Ukraine less, but, on the contrary, more of a presidential republic.
The other changes are not, in our opinion, of fundamental importance. All of them clearly do not justify disrupting the integrity of the constitutional text and in that sense cannot be seen as positive.
As for the specific circumstances and political atmosphere around the introduction of constitution reforms, sandwiched between two rounds of presidential elections, they seem extremely inopportune, not to say absurd. Firstly, citizens of Ukraine on 31 October 2004 voted specifically for a President with the constitutional powers vested in him on that day. Secondly, the change in constitutional status of the President between two election rounds is a juggling of constitutional principles in the spirit of S. Gavrish[2] Speaking metaphorically, it is all as though somebody bought a cat at a market, and at home pulled a dog out of the sack.
In the final analysis, the constitutional reform in its present version is supported not by leading political forces (even if we discard the «mass, yet insignificant» (according to S. Gavrish) abuses during the elections, the leader of the races is a tactical opponent of the reform), but by political outsiders – communists and socialists. This should make us wary. The moral right to change the Constitution of Ukraine can clearly not rest with those whose actions are not compatible with the logic of our progress.
Conclusions prepared by V. Rechitsky, specialist on Constitutional issuesfor the Kharkiv Human Rights Protection Group
[1] Pylyp Orlik, Ukrainian Hetman (1672-1742) introduced a kind of proto-constitution (translator’s note)
[2] Gavrish was representative for Yanukovych at the Supreme Court. His statements are sometimes original, to say the least. (translator’s note)