An independent commentary to the Decision of the Constitutional Court of Ukraine concerning the official interpretation of Article 10 of the Constitution of Ukraine
09.12.2001
The present commentary is written to the Russian translation of the text of the Decision of the Constitutional Court of Ukraine that was published in ‘Rossiysko-Ukrainskiy bulleten’ (‘Russian-Ukrainian bulletin’), No. 5, 2000, p. 61. We shall also refer to the Russian translation of the votum separatum by the Constitutional Court judge O. M. Mironenko that is published on pp. 62-67 of the same issue of the bulletin.
1. In item 1 of the resolution part of the Decision of the Constitutional Court of Ukraine the interpretation of Part 1 Article 10 of the Constitution of Ukraine is presented, i.e. the following norm: ‘The state language in Ukraine is the Ukrainian language’. While interpreting this norm, the Constitutional Court came to the conclusion that ‘the Ukrainian language as the state one is the obligatory tool of communication on the entire territory of Ukraine when functioning as the language of the state power and bodies of the self-rule’.
This thesis arouses objections since the Decision of the Constitutional Court groundlessly forces the bodies of self-rule to apply the state language, whereas these bodies do not make a part of the state machinery. The local self-rule and its bodies are civil, not state institutes.
According to Article 2 of the World Declaration on local self-rule (adopted by the World Association of the local self-rule on 26 September 1985 in Rio-de-Janeiro), ‘the local self-rule this is the right and duty of local power bodies to regulate and conduct public matters under its personal responsibility and in the interests of the population’.
The European Charter on local self-rule of 15 October 1985 (see Preamble) notes that the local self-rule has also the right to take part in the administration of state affairs. Article 3 of the Charter points out that such participation must be realized in the interests of the local population. It is clear that any other activity would cancel the sense and function of the local self-rule.
It should be noted that the Constitution of Ukraine also treats the local self-rule as ‘the bodies of self-organization of the population’, whose aim is ‘to solve autonomously questions of local scale’ (Part 1 and Part 6 of Article 140). As to the connection of the local self-rule and the state, Part 3 of Article 143 of the Constitution of Ukraine stipulates that ‘the bodies of local self-rule may be given by law separate functions of the executive power’. The Constitution notes that the bodies of the local self-rule are controlled by the organs of the state executive power only in the questions of their execution of the delegated powers (Part 4, Article 143).
All said above enables one to draw the conclusion that the political and legal logic, which is fixed in the international legal instruments and in the Constitution of Ukraine, concerning the existence and functioning of the bodies of local self-rule forbids to treat the latter as state or quasi-state organs. On the contrary, such bodies have the status of public institutes that in separate cases and on the basis of law may participate in administrating state affairs. As is affirmed in Article 38 of the Constitution of Ukraine, the right to participate in administrating state affairs is possessed by all citizens of Ukraine. Yet, it does not automatically follow that they must communicate in the state language. Likewise, this duty does not follow for the bodies of the local self-rule.
It is undoubtful that delegating to local self-rule the control over state powers based on the Constitutional norm, the law comes from the suggestion that this delegating will be meaningful only when the powers are realized under the local conditions, including the local language and other local peculiarities. Yet, in the interpretation of the resolution part of the Decision of the Constitutional Court, it is de facto assumed that the bodies of the local self-rule must ‘attune’ to the state decisions. This attitude ignores and even cancels the opinion used in the democratic world on the mission of local self-rule. In fact, one sees here the conviction of the Ukrainian Constitutional judges that the top priority has the state and its rights instead of the normal in the democratic state conviction that the top priority has an individual and its rights.
Part 2 Article 3 of the Constitution of Ukraine stipulates that ‘human rights and freedoms and their guarantees determine the content and direction of state activities’. The right to use that language in which one can express oneself in the full and convenient way is an obvious elementary right of man (the list of human rights in the Ukrainian Constitution is not exhausting). It is natural that this right should be preserved on the level of the local self-rule. The rightful and democratic state is not the master, but a servant of the people. That is why it is incorrect to use the arguments forcing the master to communicate in the language of the servant.
As to the language in which the state machinery functions, it must be the state language, i. e. Ukrainian. It is so because the majority of Ukrainian citizens speak in this language. Subjecting to the majority, the state, at the same time, fulfils the function of the social pacification, because, in the opposite case, its language policy would generate much more conflicts than it follows from the actual ethnic situation.
It should be noticed that the use of the term ‘communication’ in item 1 of the resolution part of the Decision of the Constitutional Court is doubtful. This term has no distinct legal meaning (the Constitutional Court does not give the exhausting list of its applications either). In the everyday meaning this word covers a large number of communications (telephone conversation, a talk in a restaurant during the lunch break, in the halls of ministries and departments, in smoking rooms, etc.). It is obvious that forcing civil servants to ‘communicate’ in the state language, the Constitutional Court makes an attempt to regulate what is not regulatable in principle.
As to the statement of the Constitutional Court that ‘the Ukrainian language as the state one is the obligatory tool of communication… also in other public spheres of the social life’, one can agree here with the critical comments presented in the judge O. M. Mironenko’s votum separatum. If the expression ‘public spheres of the social life’ is a tautology, then the Decision of the Constitutional Court really interferes into the sphere of the private communication of the civil society and is therefore unlawful (in a democratic and rightful state). If one assumes that the Constitutional Court considers this sphere of communication belonging to the state, then it is not understandable why this state is written twice (in paragraphs 1 and 2 of item 1 of the resolution part of the Decision).
A more attentive analysis of the Decision of the Constitutional Court shows however that its authors actually tried to expand the duty of using the state language to ‘near-state’ and ‘quasi-state’ spheres. Having fuzzy notions of these terms, the Constitutional Court facilitated its mission by the reference that ‘the public spheres of social life’ must be determined by law. As a result, the Constitutional Court not elucidated but confused the situation. The Decision added to the state and non-state spheres of public life another semi-state or ‘publicly-social’ sphere.
2. What concerns the analysis of the text of item 2 of the resolution part of the Decision of the Constitutional Court, its legal and political logic clearly follows the logic of item 1.
Here the authors prescribe the use of the state language in the educational sphere, and again the Constitutional Court wrongly identifies the state schools with non-state (communal) ones. The Constitutional Court decided that communal schools of all levels must obey the same language regime as in state schools. Meanwhile, part 1 Article 143 of the Constitution of Ukraine says that the communal property is administrated exclusively by the local self-rule bodies. It is these bodies that, basing on the Constitutional and other legal norms, create, reorganize and liquidate communal enterprises, establishments and organizations; the local self-rule bodies have the right to control the work of such organizations.
To put it simply, communal schools are communal (and not state-owned) because their work must realize the local (and not state) cultural interests. There is no necessity to specially prove that the local interests in the educational sphere include the language of teaching, because namely in this sphere the local peculiarities are revealed, namely from this circumstance the norm of the local control of the objects of the communal property follows.
To sum up, the Constitutional Court took a Decision which in spirit and in letter contradicts the Constitution by expansion into the so-called ‘culturally sensitive zones’ (D. Easton) of the Ukrainian socium; the Decision invaded the spheres of the civil society which are not to be regulated by the state. Certainly, the actions of the Constitutional Court are explained not only by the juridical positivism, of which O. M. Mironenko accuses his colleagues. The reason is that in the consciousness of even Constitutional judges the idea of dominating the state over an individual is deeply rooted. The latter consideration permits me to conclude the commentary with several general notes.
3. As the analysis has shown, the resolution part of the Decision of the Constitutional Court is a visual and instructive example of the post-totalitarian syndrome in the mind of lawyers of the highest rank and qualification.
The Decision is a sufficient proof that in the mentality of the best barristers of the country the conviction dominates that the Constitution in its very nature is a document not so much of the civil society, but of the state. The top priority of the latter determines the main regulative constitutional potential.
Meanwhile, in the experienced and tempered by history democracies the Constitution for a long time has been regarded as the main law of the civil society, which constrains and delimits the state and its agents. The historical sources gave birth to the best Constitutional samples, which are connected with civil freedom. In other words, a modern Constitution is not a tool for ‘the consolidation of the nation’, but a guarantor of individual freedom and cultural diversity. According to the ideas of classics of constitutionalism, the main law is intended for constraining the rule. It is ‘the bridle for leaders and peoples’ (P. A. Golbach), its main function is the provision of freedom (A. Chayot).
According to the prevailing nowadays liberal constitutional theory, the state unites and restrains people as much as it is needed for their own freedom. From the viewpoint of the modern political science, a society is not an association of citizens with similar interests, it is a set of people whose only common purpose is to preserve and guarantee individual rights. An attempt to treat constitutionalism as a metatheory of social solidarity is a product of ‘enslaved reason’ (C. Milos).
Certainly, the circumstances, under which the Ukrainian Constitution was compiled and adopted, made it rather contradictory. Part 1 of Article 3 of the Constitution of Ukraine proclaims an individual the highest social value. On the other hand, part 1 Article 7 of the Constitution stipulates that the state ‘assists the consolidation and development of the Ukrainian nation’. This ambiguity had to be reflected in the Decision under analysis.
That ambiguity revealed itself both in the ideas and on the level of the legal technique. Yet, because the Decision is juridically contradictory, it is comparably ‘safe‘. If the first paragraph of item 1 of the resolution part of the Decision is penetrated by the idea of the language consolidation, then the second paragraph essentially narrows the prospect of the state language monopoly. After all, the local self-rule bodies are permitted to make exceptions.
A similar situation is presented in item 2 of the resolution part of the Decision. Here the second paragraph of item 2 permits the interested sides to ignore the demands of the first paragraph. On the one hand, the state language is declared as the language of education. On the other hand, the Decision permits to be educated in the languages of the national minorities.
To conclude, we shall speak only about the tendency. One should confess that the tendency to the state control over culture in the Decision of the Constitutional Court prevails over the tendency of protecting culture from the necessity ‘to kiss the metallic coolness of the state’ (S. Wayl). An implicitly expressed idea of the cultural submission of the non-Ukrainian minority to the Ukrainian majority prevails in the Decision. The intention is understandable as an intellectual product of the real past humiliation of a great people, but it is not liberal. Our society, the Constitutional Court and our Constitution balance on a thin edge between the past and the future, and with each day this equilibrium looks less and less justified.
1. In item 1 of the resolution part of the Decision of the Constitutional Court of Ukraine the interpretation of Part 1 Article 10 of the Constitution of Ukraine is presented, i.e. the following norm: ‘The state language in Ukraine is the Ukrainian language’. While interpreting this norm, the Constitutional Court came to the conclusion that ‘the Ukrainian language as the state one is the obligatory tool of communication on the entire territory of Ukraine when functioning as the language of the state power and bodies of the self-rule’.
This thesis arouses objections since the Decision of the Constitutional Court groundlessly forces the bodies of self-rule to apply the state language, whereas these bodies do not make a part of the state machinery. The local self-rule and its bodies are civil, not state institutes.
According to Article 2 of the World Declaration on local self-rule (adopted by the World Association of the local self-rule on 26 September 1985 in Rio-de-Janeiro), ‘the local self-rule this is the right and duty of local power bodies to regulate and conduct public matters under its personal responsibility and in the interests of the population’.
The European Charter on local self-rule of 15 October 1985 (see Preamble) notes that the local self-rule has also the right to take part in the administration of state affairs. Article 3 of the Charter points out that such participation must be realized in the interests of the local population. It is clear that any other activity would cancel the sense and function of the local self-rule.
It should be noted that the Constitution of Ukraine also treats the local self-rule as ‘the bodies of self-organization of the population’, whose aim is ‘to solve autonomously questions of local scale’ (Part 1 and Part 6 of Article 140). As to the connection of the local self-rule and the state, Part 3 of Article 143 of the Constitution of Ukraine stipulates that ‘the bodies of local self-rule may be given by law separate functions of the executive power’. The Constitution notes that the bodies of the local self-rule are controlled by the organs of the state executive power only in the questions of their execution of the delegated powers (Part 4, Article 143).
All said above enables one to draw the conclusion that the political and legal logic, which is fixed in the international legal instruments and in the Constitution of Ukraine, concerning the existence and functioning of the bodies of local self-rule forbids to treat the latter as state or quasi-state organs. On the contrary, such bodies have the status of public institutes that in separate cases and on the basis of law may participate in administrating state affairs. As is affirmed in Article 38 of the Constitution of Ukraine, the right to participate in administrating state affairs is possessed by all citizens of Ukraine. Yet, it does not automatically follow that they must communicate in the state language. Likewise, this duty does not follow for the bodies of the local self-rule.
It is undoubtful that delegating to local self-rule the control over state powers based on the Constitutional norm, the law comes from the suggestion that this delegating will be meaningful only when the powers are realized under the local conditions, including the local language and other local peculiarities. Yet, in the interpretation of the resolution part of the Decision of the Constitutional Court, it is de facto assumed that the bodies of the local self-rule must ‘attune’ to the state decisions. This attitude ignores and even cancels the opinion used in the democratic world on the mission of local self-rule. In fact, one sees here the conviction of the Ukrainian Constitutional judges that the top priority has the state and its rights instead of the normal in the democratic state conviction that the top priority has an individual and its rights.
Part 2 Article 3 of the Constitution of Ukraine stipulates that ‘human rights and freedoms and their guarantees determine the content and direction of state activities’. The right to use that language in which one can express oneself in the full and convenient way is an obvious elementary right of man (the list of human rights in the Ukrainian Constitution is not exhausting). It is natural that this right should be preserved on the level of the local self-rule. The rightful and democratic state is not the master, but a servant of the people. That is why it is incorrect to use the arguments forcing the master to communicate in the language of the servant.
As to the language in which the state machinery functions, it must be the state language, i. e. Ukrainian. It is so because the majority of Ukrainian citizens speak in this language. Subjecting to the majority, the state, at the same time, fulfils the function of the social pacification, because, in the opposite case, its language policy would generate much more conflicts than it follows from the actual ethnic situation.
It should be noticed that the use of the term ‘communication’ in item 1 of the resolution part of the Decision of the Constitutional Court is doubtful. This term has no distinct legal meaning (the Constitutional Court does not give the exhausting list of its applications either). In the everyday meaning this word covers a large number of communications (telephone conversation, a talk in a restaurant during the lunch break, in the halls of ministries and departments, in smoking rooms, etc.). It is obvious that forcing civil servants to ‘communicate’ in the state language, the Constitutional Court makes an attempt to regulate what is not regulatable in principle.
As to the statement of the Constitutional Court that ‘the Ukrainian language as the state one is the obligatory tool of communication… also in other public spheres of the social life’, one can agree here with the critical comments presented in the judge O. M. Mironenko’s votum separatum. If the expression ‘public spheres of the social life’ is a tautology, then the Decision of the Constitutional Court really interferes into the sphere of the private communication of the civil society and is therefore unlawful (in a democratic and rightful state). If one assumes that the Constitutional Court considers this sphere of communication belonging to the state, then it is not understandable why this state is written twice (in paragraphs 1 and 2 of item 1 of the resolution part of the Decision).
A more attentive analysis of the Decision of the Constitutional Court shows however that its authors actually tried to expand the duty of using the state language to ‘near-state’ and ‘quasi-state’ spheres. Having fuzzy notions of these terms, the Constitutional Court facilitated its mission by the reference that ‘the public spheres of social life’ must be determined by law. As a result, the Constitutional Court not elucidated but confused the situation. The Decision added to the state and non-state spheres of public life another semi-state or ‘publicly-social’ sphere.
2. What concerns the analysis of the text of item 2 of the resolution part of the Decision of the Constitutional Court, its legal and political logic clearly follows the logic of item 1.
Here the authors prescribe the use of the state language in the educational sphere, and again the Constitutional Court wrongly identifies the state schools with non-state (communal) ones. The Constitutional Court decided that communal schools of all levels must obey the same language regime as in state schools. Meanwhile, part 1 Article 143 of the Constitution of Ukraine says that the communal property is administrated exclusively by the local self-rule bodies. It is these bodies that, basing on the Constitutional and other legal norms, create, reorganize and liquidate communal enterprises, establishments and organizations; the local self-rule bodies have the right to control the work of such organizations.
To put it simply, communal schools are communal (and not state-owned) because their work must realize the local (and not state) cultural interests. There is no necessity to specially prove that the local interests in the educational sphere include the language of teaching, because namely in this sphere the local peculiarities are revealed, namely from this circumstance the norm of the local control of the objects of the communal property follows.
To sum up, the Constitutional Court took a Decision which in spirit and in letter contradicts the Constitution by expansion into the so-called ‘culturally sensitive zones’ (D. Easton) of the Ukrainian socium; the Decision invaded the spheres of the civil society which are not to be regulated by the state. Certainly, the actions of the Constitutional Court are explained not only by the juridical positivism, of which O. M. Mironenko accuses his colleagues. The reason is that in the consciousness of even Constitutional judges the idea of dominating the state over an individual is deeply rooted. The latter consideration permits me to conclude the commentary with several general notes.
3. As the analysis has shown, the resolution part of the Decision of the Constitutional Court is a visual and instructive example of the post-totalitarian syndrome in the mind of lawyers of the highest rank and qualification.
The Decision is a sufficient proof that in the mentality of the best barristers of the country the conviction dominates that the Constitution in its very nature is a document not so much of the civil society, but of the state. The top priority of the latter determines the main regulative constitutional potential.
Meanwhile, in the experienced and tempered by history democracies the Constitution for a long time has been regarded as the main law of the civil society, which constrains and delimits the state and its agents. The historical sources gave birth to the best Constitutional samples, which are connected with civil freedom. In other words, a modern Constitution is not a tool for ‘the consolidation of the nation’, but a guarantor of individual freedom and cultural diversity. According to the ideas of classics of constitutionalism, the main law is intended for constraining the rule. It is ‘the bridle for leaders and peoples’ (P. A. Golbach), its main function is the provision of freedom (A. Chayot).
According to the prevailing nowadays liberal constitutional theory, the state unites and restrains people as much as it is needed for their own freedom. From the viewpoint of the modern political science, a society is not an association of citizens with similar interests, it is a set of people whose only common purpose is to preserve and guarantee individual rights. An attempt to treat constitutionalism as a metatheory of social solidarity is a product of ‘enslaved reason’ (C. Milos).
Certainly, the circumstances, under which the Ukrainian Constitution was compiled and adopted, made it rather contradictory. Part 1 of Article 3 of the Constitution of Ukraine proclaims an individual the highest social value. On the other hand, part 1 Article 7 of the Constitution stipulates that the state ‘assists the consolidation and development of the Ukrainian nation’. This ambiguity had to be reflected in the Decision under analysis.
That ambiguity revealed itself both in the ideas and on the level of the legal technique. Yet, because the Decision is juridically contradictory, it is comparably ‘safe‘. If the first paragraph of item 1 of the resolution part of the Decision is penetrated by the idea of the language consolidation, then the second paragraph essentially narrows the prospect of the state language monopoly. After all, the local self-rule bodies are permitted to make exceptions.
A similar situation is presented in item 2 of the resolution part of the Decision. Here the second paragraph of item 2 permits the interested sides to ignore the demands of the first paragraph. On the one hand, the state language is declared as the language of education. On the other hand, the Decision permits to be educated in the languages of the national minorities.
To conclude, we shall speak only about the tendency. One should confess that the tendency to the state control over culture in the Decision of the Constitutional Court prevails over the tendency of protecting culture from the necessity ‘to kiss the metallic coolness of the state’ (S. Wayl). An implicitly expressed idea of the cultural submission of the non-Ukrainian minority to the Ukrainian majority prevails in the Decision. The intention is understandable as an intellectual product of the real past humiliation of a great people, but it is not liberal. Our society, the Constitutional Court and our Constitution balance on a thin edge between the past and the future, and with each day this equilibrium looks less and less justified.