15.12.2003 | Vsevolod Rechitskiy, the Constitutional expert of the KhG

Comment of the Kharkov group for human rights protection (KhG) on the draft of the Law of Ukraine "On the introduction of changes to the Constitution of Ukraine" presented for the discussion by the initiative of the President of Ukraine


This commentary is compiled after the simplest scheme – in the strict agreement with the text of the Presidential initiative.

In particular, the commentary to Article 71 of the Constitution, from which the Law draft begins, criticizes the proposed procedure of election of the President of Ukraine, organs of state power and local self-rule “during one year”.

According to the version of this article, stated in the Presidential initiative, the election of MPs must be conducted in March, election of the deputies of local councils and other organs of local self-rule – in September and Presidential election – in December of the same year.

Such procedure of separate election allegedly would not allow the newly elected President to influence negatively the election of the representatives of self-rule organs. In other words, the structural vertical of power would not be formed as a pyramid of concrete staff priorities of the head of the state, and this idea has certain political sense.

On the other hand, if it is necessary to conduct the election of two power branches (Presidential-executive and legislative) during one year, then the possibility appears of the reduced term of the authorities of these organs. So, if the President or Parliament were re-elected before the appointed time, they would work according to the reduced term of action of the obtained mandate. For example, if a President would be elected to his post after the impeachment of his predecessor, then he would fill this post only until the next Presidential election. The same may be said regarding to the pre-term election (re-election) of the Supreme Rada of Ukraine.

The administrative effect of this procedure is not very great, but it creates obvious political inconveniences. It should be more advisable to assign a deputy of the President (Vice-President) for such cases. As to the Parliament, it always must be elected for the full term, taking into account its collective nature and the inertness peculiar to it. In this case we would get the procedural economy and the sureness that the people would have the equal political weight at any parliamentary election.

The next thesis (Article 74) of the Presidential initiative reads that Laws and other decisions adopted at the all-Ukrainian referendum have “the superior political force” relatively to the parliamentary laws, so, they do not need further approval by the organs of state power or state officials.

This means that the laws adopted at the referendum have the priority over the laws adopted by the Supreme Rada of Ukraine. Yet, Article 74 of the changes to the Constitution mentions the juridical, but not political superiority of such laws. At that the “referendum formula” – the detailed and approved text of the law draft, which would be presented for the nation-wide voting, would not be considered beforehand by the Supreme Rada of Ukraine.

It is interesting that the operating Law on referendum contains the article about the necessity of presenting the formula of referendum for the voting in the Parliament. This norm allows to achieve the aim of referendum by the reductive procedure. In other words, if the Parliament supports the referendum formula, then the need of it decreases. Yet, in 2000 this article of the Law on referendum was ignored by its formal organizers.

It should be stressed that Article 74 of the new version can also change the existing procedure of introducing changes into the Constitution of Ukraine. It is formulated in such way that the old procedure of introducing changes is implicitly supplemented with new procedure; so, the existing procedure of introducing changes into the Constitution is preserved only for three (I, III, XIII) sections of the Basic Law. As to the rest of the text of the Constitution, it may be changed both in accordance to Article 155 of the operating Constitution and on the basis of all-Ukrainian referendum, which has “the supreme juridical force” in comparison with any new parliamentary laws.

Since Article 74 of the President’s law draft does not tell the difference between simple laws and the laws introducing changes to the Constitution, one may reckon that, in fact, the triple procedure of introducing changes is proposed: on the basis of Articles 155 and 156 of the operating Constitution and on the basis of part 2 Article 74 of the Law draft “On the introduction of changes to the Constitution of Ukraine”.

It is widely known that in any poor country without democratic experience a referendum is not only a tool of direct expression of the political will of population, but also a way of manipulating the mass civil consciousness. Besides, it is also known that very poor and very rich individuals are politically indifferent. Having different reasons, they do not expect much from the political power. This might be a reason of the triumphal referendums in the countries headed by B. Mussolini, A. Hitler and F. Castro.

It seems that there is no need to comment the economic and moral state of modern Ukraine. It is obvious that under the existing conditions it is not difficult to “prompt” any political decision to the Ukrainian citizens.

Section IV of the Law draft begins with the declaration of the principle of the two-chamber structure of the Ukrainian Supreme Rada, which will now consist of the Chamber of regions (the upper chamber) and State gatherings (the lower chamber).

It should be noted that the very idea of two-chamber structure of the Supreme Rada does not arouse any ideological or political objections. All pretensions and criticism appear after the analysis of the propositions, when the sense of the radical changes becomes clear. The situation becomes transparent, when one understands that the State gatherings are composed, according to the idea, on the basis of the proportional principle, and the Chamber of regions – on the basis of the majority election model.

Although the Presidential draft does not describe the concrete procedure of the election to the upper chamber (it is only said that the members of the chamber are elected), one must not think that the procedure was not described accidentally. The text of the draft contains the provision that the members of State gatherings, unlike the Chamber of regions, are elected according to the proportional principle. So, it should be logically to suppose that the Chamber of regions would be composed on the majority, not the proportional basis, since the election will be conducted in oblasts (three mandates per region), where the use of any election system except the majority one, is improbable. This confirms that the widely declared intentions of the Ukrainian opposition to introduce the proportional principle of forming the Parliament are wittingly ignored by the Presidential initiative.

Everybody knows that the people’s deputies elected on the proportional basis have the same rights as the deputies elected in majority districts. In the new version of the Parliament the role of the deputies elected on the proportional basis will noticeably diminish. Although their number will increase for 50 persons, but the political force of the State gatherings elected according to the proportional principle will significantly decrease in comparison with the half of the operating Supreme Rada elected after the same principle.

Thus, the introduction of the two-chamber structure of the Parliament will not endorse the principle of proportionality at the national election; moreover, it will shift this principle to the lower level of the political efficiency. Since the Chamber of regions will dominate over the State gatherings, it is obvious that the President did not refused from his majority principles, but even intensified it.

Now we know well what is the sense of the majority system of election in Ukraine. Under the existing political conditions it is an efficient tool for the disavowal of the democratic achievements of the proportional system. The progress achieved by the Ukrainian opposition at the last parliamentary election owing to the proportional system was quickly “balanced” with the results of the majority voting.

The future members of the Chamber of regions will have much more powers than the present deputies, and the majority principle of election will remain operable.

At the same time it should be noted that item 6 Article 81 of the draft that permits to terminate before the proper term the authorities of the deputies, who left the party fraction or were expelled from it, supports the general principles of proportionality. Yet, this internal disciplinary procedure does not recompense the losses of the members of the State gatherings inflicted by the decrease of their authorities comparatively to the present Supreme Rada.

Article 83 of the draft also deserves the special attention. This article stipulates the creation of the so-called “permanently acting” parliamentary majority. According to this article, the majority gets the constitutional status for the first time. Besides, the term “permanently acting majority” is obviously absurd, since it is difficult to imagine any permanent phenomena in the unsteady world of parliamentary votings.

It is clear even without any special explanations that there exist (and will exist) many questions in the political practices of the Parliament, where the stability is principally impossible. Moreover, the so-called “prevocational” law drafts are possible, with which the subjects of legislative initiative will consciously undermine the stability achieved by their political opponents.

The limited type of the permanent constitutional majority may exist at the voting “for/against” the candidate to the post of the Prime-Minister. In this case the majority automatically becomes the structural part of the State gatherings responsible for the actions of the government. Yet, even the voting “against” in the composition of the parliamentary minority does not relieve the opposition deputies of the responsibility for the elected persons.

The presidential draft pays much attention to the powers that must be realized by new Supreme Rada at the joint sessions of its chambers. The list of these authorities is rather lengthy, but new Constitution does not envisage any concrete procedure of voting at joint parliamentary sessions. Such procedural incompleteness of the constitutional space is somewhat surprising.

It is not understandable whether the decisions at these joint sessions will be adopted by the majority of the total composition of the chambers, or when the majority of one chamber would manage to come to the agreement with the majority of another chamber. If the Presidential initiative means the separate voting in the chambers at the joint sessions, then these sessions are absolutely senseless. Yet, if the voting would be realized by the temporarily “united” composition of the Supreme Rada, then the very idea of the division into chambers seems to be inexpedient.

Somehow or other, the idea of the joint sessions of the chambers with the special competence is not sufficiently detailed and grounded.

Article 85 of the draft of the Law “On the introduction of changes to the Constitution of Ukraine” stipulates the separated competence of the Chamber of regions and the State gatherings. In particular, the authority of the Chamber of regions includes “the approval of the laws adopted by the State gatherings”. This formula seems to be rather clumsy, since it is obvious that “the approval” may mean not only the support of the law, but also its rejection. It would be more advisable to use the formula “voting on the laws adopted by the State gatherings”.

It is also noteworthy that the competence of the Chamber of regions also includes almost all staff authorities of the operating Supreme Rada of Ukraine, except the new provision about “the appointment of the Prime-Minister of Ukraine by the recommendation of the President”.

The Chamber of regions is empowered to form (and, thereby, to control) the composition of the judicial branch of power in Ukraine. Henceforth the composition of the Constitutional Court will depend on the Chamber of regions for 50%, and the judges in the courts of common jurisdiction – for 100%, since they will be appointed by the Ukrainian “senators”.

Since the judges of the common courts, according to the project, will be elected for ten years, it will be possible to control their professional behavior. Thus, the proposed decrease of the present unlimited term of judges’ authorities looks as a simple and effective disciplinary and preventive measure.

At the same time, the reform permits the appointment for the second term of the judges, who pleased the President or the Chamber of regions during the first term of their work. The operating Constitution does not allow this, but the President’s draft mentions the possibility of the repeated appointment of a constitutional judge. The age of retirement on a pension of the constitutional judges is increased up to 75 years, and this does not arouse any objections.

Since the judges of the Constitutional Court will be appointed (not elected) and since they may be appointed to their post twice, the danger of stuff favoritism in the structure of the constitutional surveillance and control essentially increases.

The constitutional reform also cancels the limitation of the term of stay at the post of the head of the Constitutional Court. Now this term is equal to three years. Since the heads of Ukrainian courts will be appointed, according to the new Constitution, only by the President, the re-appointment of the head of the Constitutional Court also becomes the prerogative of the President (!).

That is why the development of democracy, which is declared as the main result of the constitutional reform, seems to be rather rhetorical. This reform will cause the development of club mentality and corporatism in the entire structure of the Ukrainian power pyramid.

It is obvious that the behavior of judges during the first ten years of their work will influence the probability of their re-appointment, so the level of their professional independent will noticeably decrease.

As to the model of the constitutional competences of the State gatherings, the draft determines these competences very briefly and modestly. Although the State gatherings will have the right to appoint the Prime-Minister, they will be able to do this only after the recommendation of the President.

Certainly, they will have the right to adopt some laws, but these laws will become operable only after the approval by the Chamber of regions and the President. In fact, the laws adopted by the State gatherings will be always under the threat of double veto.

The right of the State gatherings to appoint the Presidential election in the terms stipulated by the Constitution may not be regarded as serious because of the obvious automatism of this action. It resembles the function of a muezzin, who announces the time of prayers.

The draft (Article 90) also states the right of the President to cancel before the proper term the authorities of the State gatherings, if the “permanently acting parliamentary majority” would not be created in the chamber within a month.

Yet, firstly, nothing “permanently acting” cannot be created within a month – this thesis is obviously incorrect because of the absence of the criteria of “permanence”, and, secondly, the political sense of this innovation is rather incomprehensible.

This very fragment of the constitutional innovation is the most convincing evidence of the absence of the general logical structure of the draft. The concept of the majority may not be introduced without the exactly defined principles, and it is impossible to make sure of the “permanence” of political majority during one month.

Nothing permanent exists in politics, except the perpetual competition of interests, polemics and fluctuations of political mood. So, the project looks as a demand to the Parliament to “freeze” politically, to fix itself in the certain state, the criteria of which are not determined too.

Yet, in spite of all official rhetoric of the adherents of the reform, the unbiased analysis of its ideological sources confirms that the reform does not decrease, but increases the authoritarian principles in governing the state.

In the accordance with the reform, the appointments of the ministers of force structures will remain a prerogative of the President. Yet, now this procedure is applied only practically (the ministers of force structures are not distinguished in the list of appointments), and from now on such appointments will be realized on the basis of direct constitutional prescription.

However, earlier all ministers were appointed to their posts by the President, and the reform envisages the appointment of the “ordinary” ministers by the State gatherings. Here one can see some limited democratization of the constitutional procedure of the creation of the executive power branch, but this compromise does not look convincingly, if one recollects that the heads of local state administrations will be appointed by the President, as before, and the budget expenditures of the Presidential administration will again exceed the expenditures of the government.

The operating Constitution declares that the President creates the courts in the accordance with the procedure stipulated by law. Yet, the reform allows the President also to liquidate the courts, to settle the number of judges in courts, to transfer the judges and to appoint the heads of court establishments. It would be logical to draw the conclusion that the draft of the reform envisages not only the restricted court administering by the President, but the direct management of the entire court system.

So, to what conclusions one can come on the basis of the above-said? First of all, the draft of the constitutional reform increases the centralization in the country instead of decreasing it. It implies not the restricted introduction of the parliamentary-presidential model, but the centripetal modification of the entire structure of state power in Ukraine.

In order to do this the ideologists and the authors of the reform used the decorative model of the proportional election of the deputies of the State gatherings, who are deprived of all more or less significant constitutional authorities. So, the reform trends to the majority, not proportional, principle of forming the supreme legislative organ of Ukraine.

If to consider the draft from the philosophic viewpoint, it seems that the draft reflected the modern sorrowful tendency to narrow the democratic principles of national parliamentarism and the general degradation of the political system of the country.

The political theory declares that real democracy is a complicated social institution with precise procedural demands and almost unpredictable consequences of the use of these demands. So, the democracy cannot be programmed. However, the draft demonstrates the wish of the power to narrow the sphere of the political freedom of people, to exclude the stochastic political processes from public life, to increase the level of the state influence on civil society and to control all strategic decisions taken by the society.

One may also say that the draft, by its concrete administrative idea and even the subconscious political potential, not only distrusts the democracy, but is afraid of it. The authors of the draft misuse the professional-democratic phraseology, but really they “do not believe” in liberal freedoms and creative unpredictability of social progress. Formally the draft appeals to the classical postulates of constitutionalism, but in fact it ignores and vulgarizes its principles.

It seems that the draft also reflects the certainty of its authors that the national idea, as well as the democratic idea, appeared to be good-for-nothing. Since the results of the Ukrainian democracy often does not agree with the authoritarian understanding of the political advisability, the power again proposes to the population the politically obscurantist methods of solving problems.

In its implicit aspirations the draft is based on the acknowledgement of the perspective of the long-lasting poverty in the country. It does not stimulate the principle of the so-called “risking society” (U. Beck), the main goal of which is the progress.

To sum up, the draft may be called “disciplinary” by its contents and hypocritical by its form. This draft will not bring democracy and freedom to the Ukrainian people. In fact, this is just another version of the referendum-2000.

So, it is not surprising that the draft was denounced by almost all Ukrainian participants of the International conference on the higher level “The civil society in Ukraine” that was hold on 7-8 April 2003 in Washington.

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