Opinion of human rights protection activists about the Constitutional reform
On 24 March 2004 the Kharkov group for human rights protection, with the support of the International Foundation «Vidrodjennia», held in Kyiv the scientific-practical seminar «Constitutional reform in Ukraine: expert analysis». The book with the same title was distributed at the seminar. A number of Ukrainian lawyers, peoples deputies and politicians discussed the legal aspects of the Constitutional reform.
The majority of the participants were unanimous that the procedure of introduction of changes to the Constitution was realized with numerous violations of legal norms, and the suggested changes could exert very negative influence on the observance of human rights and fundamental freedoms because of the scientifically ungrounded and unpredictable repartition of power. The process of adoption of the amendments to the Constitution is accompanied by regular violations of human rights and fundamental freedoms, in particular, the right for freedom of expression, right for peaceful assemblies and demonstrations, election rights, etc. The expert conclusions made public at the seminar confirm that the procedure of voting and discussion of law drafts has been violated more than once, which is inadmissible during the adoption of legal documents, which are so important for the country, and raises doubts in the legality of this process and its compliance with democratic principles.
We believe that the fulfillment of the operating Constitution should be guaranteed in Ukraine, in particular, through the adoption of the laws «On the President of Ukraine», «On the Cabinet of Ministers of Ukraine», «Regulations of the Supreme Rada of Ukraine» and many others. The adoption of these drafts is blocked now in the Parliament, and some of them have been already vetoed by the President. The adoption of these laws will promote the establishment of the effective system of government, which will obviate the need in the changes to the Ukrainian Constitution. Thus, absolutely all modern political conflicts are generated not by drawbacks of the Constitution, but emerge as a result of the absence of guarantees of the execution of operating constitutional norms.
The fact that the authority to realize the general supervision is given to prosecutors office is very disturbing. This contradicts to the European standards, recommendations of the Council of Europe and the common practices of the work of this organ in democratic countries.
We also want to draw the attention to the attempts, reflected in all drafts, to weaken the judicial branch of power, which branch is the weakest even now. For instance, there are tries to cancel the norm about the appointment of judges for the term of life and the reinforcement of the dependence of judges on the Constitutional Court of Ukraine.
We want to point out the necessity to supplement the law drafts on the changes to the Constitution with the norms concerning the acknowledgment of jurisdiction of the International criminal court for ratification of the Statute of this international organ.
The provisions on social-economic rights of citizens should be also changed. Now the majority of these provisions are absolutely declarative and do not agree with ones about the direct action of the norms of the Constitution of Ukraine.
In what follows we will quote several opinions of human rights protection activists.
Vsevolod Rechitskiy, a candidate of jurisprudence, the Constitutional expert of the Kharkov group for human rights protection:
«Taking into account the reform as a whole and separate forms and methods, applied by the official structures of Ukraine for its introduction, one can make the conclusion that the constitutional reform, in its present political and juridical form, does not meet the interests of Ukrainian citizens either in the actual sense or in the abstract future perspective. It is inconsistent by its principles, insincere by its moral and political contents, problematic by its juridical quality and unpredictable by its civil and political consequences».
Viktor Kolisnyk, a candidate of jurisprudence, an assistant professor of a department of constitutional right of Yuroslav Mudry National juridical academy:
«The analysis gives the sufficient grounds for the conclusion that the preliminary approval of the law draft on introduction of changes to the Constitution of Ukraine was carried out in the Parliament with the violation of certain legal norms (first of all, procedural ones), which stipulated the introduction of such changes.
Fedor Venislavskiy, a candidate of jurisprudence, an assistant professor of a department of constitutional right of Yuroslav Mudry National juridical academy.
«The draft of the law on introduction of changes to the Constitution of Ukraine does not solve a number of essential problems that may appear after the reforming of the system of state power. In particular, nobody knows how to settle the situation, if the President of Ukraine, after getting from the coalition of deputies fractions the proposition about presentation to the Parliament of the appeal about the appointment of the Prime-Minister of Ukraine, would not fulfill his duty and would not present this candidature to the Parliament within the proper term. The above-described situation is not incredible, since, in spite of the constitutional demand on the approval and publication of a law, in the connection with which the Supreme Rada overpassed the Presidents veto, the head of the state did not do that in many cases.
Yet, in our opinion, the constitutional reform does not solve the problem of disbalance in the interrelations of legislative power, executive power and the President».
Ruslan Topolevskiy, an expert of the Kharkov group for human rights protection, lecturer of the department of theory and history of state of the National University of internal affairs:
«The Constitution should stipulate the juridical limits of functioning of the society for a long term, to serve the interests of this society, but not the interests of certain social groups. Stability of the Constitution is one of the bases of the stability of social interrelations, and introduction of changes to the Constitution only 8 years after its adoption evidences, in my opinion, both about the dilettantism and incompetence of the creators of the Constitution and about the wish of politicians to turn the situation in the political space of the country to their own advantage. The Ukrainian state figures often regard the Constitution (and laws) as a tool for achievement of some political goals, and in the cases, where certain legal norms contradict the goals, these norms are ignored or interpreted in the needed sense.
Certainly, much time would be wasted for solving the eternal Russian question «Who respects whom?» The introduction changes of the operating laws, together with redistribution of authorities between the legislative and executive branches of power, as well as inside the executive power branch (between the President and Prime-Minister), weakening of the judicial power, weakening of civil society and other factors, will result in new political and juridical wars «everybody against everybody». The country, which should concentrate all efforts on the economic reforms, will peer into TV screens with the hope to find a person, which would have at least a bit of political responsibility under the conditions of permanent constitutional revolution. It should be also pointed out that, although almost eight years have passed from the moment of the adoption of the Constitution, a great number of its provisions are still declarative and not supported by proper legal acts (in spite of the fact that more than two hundred laws are adopted annually). I think, everybody understands that such situation will not promote the overcoming of legal nihilism, but will encourage new non-legitimate ideas. In other words, «If the Constitution is not legitimate, then everything is permitted»».
The complete texts of the experts notes are placed on the site www.rupor.org in the section «Позиція правозахисників: конституційна реформа» («Position of human rights protectors: Constitutional reform»).
P.S. The book «Constitutional reform in Ukraine: expert analysis» can be ordered by the address of the Kharkov group for human rights protection.