We need to change the rules of play

From an interview given to“New Wave” Radio

Two approaches to the Constitution are being discussed – amending it, or rewriting it.  Which are you in favour of?

Rewriting it.  The problem is that in 2004 the Constitution was destroyed and it’s now impossible to build anything on that foundation.  It would be more effective to write a new draft.

People talk about a new Constitution as a panacea, a means of getting out of the political dead end. Yet the two main camps will still remain, and the conflict between them.

I don’t think that’s the main thing. It’s less important how people vote than that all politicians play according to the rules and don’t try to change them in the middle of the game or to get the result they want.  The main thing is to create good rules and then follow them.

The fact that powers within the executive are mixed up is entirely abnormal. Some of the ministers answer to the Prime Ministers, others to the President, with the entire power structure determined by the President. How can the government work when it has no influence over governors? This is nonsense and a contradiction of all principles of law. There are two models – a parliamentary republic and a presidential one. In the presidential model the President is in charge of the executive, and the Prime Minister has basically administrative functions, overseeing the work of the Cabinet of Ministers.  However parliament must have strong mechanisms of parliamentary control over the executive. At present we don’t have that. There is practically no law on the Cabinet of Ministers, or on the President and opposition.

We have a situation where the Constitution has been destroyed without having even used the possibilities that it offered. Give two children in a sandpit spades and tell them they’re both the leaders. Within two minutes they’ll be pounding each other with the spades establishing who’s more a leader. We’ve achieved precisely that. There must not be a struggle for powers.

What’s wrong with the present model?

The government is headed by a Prime Minister chosen by the ruling coalition who implements a programme which the coalition went to the elections with. That’s the theory, and it would be fine if there was a well-developed political system in Ukraine and if each party had its own ideology and represented certain parts of society. Since we don’t have that, a parliamentary republic isn’t possible, and we need to return to the presidential model.

Will Yushchenko’s political opponents agree to that?

I think they’ll agree. They also want to be president in a strong presidential republic. However the main thing remains not that, but that they adhere to the rules. There needs to be an independent justice system so that situations don’t arise where the Constitutional Court is accused of corruption.

To achieve that we need to reboot the system: a new constitution and re-elections of all branches of power according to the new rules.

The 1996 Constitution envisaged a presidential republic. Why not just return to that version?

By now that’s impossible. It could have been done in 2005 when the Constitutional Court was still working. The Court could have considered the political reform [the constitutional changes], it could have said that the procedure by which it was passed [during the events of December 2004] were not constitutional and for just that reason alone, the changes needed to be revoked. However the President did not take the necessary step, the constitutional amendments came into force and the country gradually began moving towards being ungovernable. The West and centre of the Ukraine elected the President, the East and South – the Prime Minister. The two political forces involved have entirely different visions of Ukraine’s future. One answers for domestic policy, the other for foreign, and they are simply severing the country. If we don’t change the rules of play, if the basis of Ukrainian politics is not changed, it will all be repeated. There will once again be conflict between President and Prime Minister whoever is elected.

Just before the elections Arsen Avakov [Head of the Kharkiv Regional Administration] said that the councils had lost their meaning and that the main government functions should be removed from then. He sees the solution being the creation of local administrations.

I agree that the councils in their present form are totally ineffective and should long have been abolished. I was a deputy of the city council myself from 1990 to 1994 and our session demonstrated that most convincingly. Incidentally in the 1993 draft Constitution there were no district councils at all, the number of deputies on city councils was seriously cut, but then they forgot about that. That’s convenient for those who “resolve problems”, as they say. The councils are a screen behind which you can do anything you like. However, I don’t agree that the government should get involved in this.  It needs to be the Mayors or municipalities. There is the risk that the government will cross the borderline into spheres where it has no right to interfere, where people should themselves decide what’s needed.

Yury Lutsenko promised that a new draft of the Constitution would include the generally supported demand for the abolition of deputy immunity. Should it really be abolished?

I think it needs to be seriously curtailed to within the framework of deputies’ work. For example, during a session the deputy would have unequivocal immunity. The promises we heard during the election campaign were just so many words. Yushchenko incidentally spoke not of a full abolition, but of restricting immunity to the necessary degree.  I have already said and repeat here that we can’t totally remove deputy immunity.

What option for adopting a Constitution to you think is most realistic – through parliament or with a referendum?

I’ll tell you a secret – there are no options, there is no legal procedure for adopting a new Constitution. The present Constitution contains no norms making it possible to adopt a totally new model, only amendments. When they were writing it, they simply forgot to include such a possibility. We need new legal procedure to break through this impasse. It will be a purely political decision based on the present Constitution.  Another issue is how to do this without conflict and delicately so that people accept it, that’s the most important thing.  We will be dealing finally with a referendum but there’s a long way to go before that. I see the situation in the following way: the Constitutional Council will consider a draft Constitution prepared by a small group of experts. The Constitutional Council will have representatives of different regions, political factions, legal experts and members of society, with about 70-100 members in all.  They will discuss the draft and reach some kind of consensus.  The draft must also be publicly discussed and the Constitution needs to be so clear and realistic that a teacher will be able to explain its meaning to children. That’s very important. The next step is to create a special body – a Constitutional Assembly or gathering which will adopt the Constitution.

Why not entrust that to parliament?

Parliament represents political elites who will adopt a Constitution on the basis of their own interests. Yet the Constitution is a fairly complex document which protects the people’s freedom and defines the rules of interaction between the different authorities and between the authorities and the population. The Constitution is by definition a document of civic society. We could introduce the restriction that people elected to the Constitutional Assembly will not be entitled to hold parliamentary office during the term following the adoption of the new Constitution. That will mean that politicians don’t have the temptation to get in there and do what suits them, then later using the same rules get into parliament and go on as they did before.

How should we choose such people?

That’s not easy. I think the principle will be political. Here also we’ll see how mature the Ukrainian people are. There should be 10-20% specialists in constitutional law who understand these principles, and the other 80-90% moral authorities – people who enjoy respect and whose motives would not be doubted.  They should together examine each norm, whether they’ll be good or not. After the draft presented by the Constitutional Council has been comprehensively discussed by the Constitutional Assembly, it needs to be printed in large numbers and receive wide discussion. After review by the Constitutional Assembly of all comments, it should be put to a referendum.

Who do you mean by moral authorities?

For example, Ivan Dziuba; Myroslav Marynovych; Yevhen Sverstyuk; Mykola Ryabchuk and Yaroslav Hrytsyak. They’re all free of party affiliation and have never been deputies. I could name many such people.

A question from a listener:  What do you think of the ideas of judges being elected?

I’m completely against this. We would have judges in Donetsk and Luhansk controlled by the Party of the Regions, while in Lviv or Vinnytsa they’d be subordinate to BYuT or Nasha Ukraina, etc.  You would have no chance of achieving an independent judiciary.

17 October 2007 Information in square brackets has been added by the translator