Constitutional reform of 2004 and human rights

By the state on 31 December 2004, the Constitutional reform is legally represented by Law No. 2222-IV “On introduction of changes into the Constitution of Ukraine” of 8 December 2004. This Law is based on law draft No. 4180 on introduction of changes into the Constitution of Ukraine in the final edition of the Temporary special commission of the Supreme Council of Ukraine in charge of elaboration of the drafts of laws of Ukraine on introduction of changes into the Constitution of Ukraine of 21 June 2004.

The draft underwent the proper procedure of consideration in the Constitutional Court of Ukraine and got the Court sanction concerning the possibility of its presentation for voting in the Supreme Council of Ukraine. Law draft No. 4180, which was presented to the Parliament, noticeably differed from law draft No. 4105, which had been already voted in the Supreme Council before, but had not got the necessary majority (300) of votes. So, the last version of law draft No. 4180 was drastically different from the draft with the same number, which had been considered by the Venetian Commission in December 2003.

Law No. 2222-IV also differs from its predecessors (law draft No. 4105 and the first version of law draft No. 4180), in particular because it stipulated election of the President of Ukraine by the nation-wide voting. At the same time, Law No. 2222-IV is much less radical in the sphere of introduction of changes into the Constitution of Ukraine than the mentioned law drafts. However, even in its new form this law does not contribute to positive changes in the political system of Ukraine.

Just as its unhappy predecessors, Law No. 2222-IV envisages election of people’s deputies (members of the Parliament) of Ukraine on the purely proportional basis. From this viewpoint, it stipulates, now on the higher constitutional level, the election procedure, which has been established by the present legislation. In our opinion, election of MPs on the purely proportional basis is an insufficiently considered attempt to improve the Ukrainian election legislation.

As a result of the political compromise, the proportional system of election to the Ukrainian Parliament exists now on the level of constitutional and ordinary laws. Yet, before the introduction of such change it should be expedient to test the new system of election to the Supreme Council in practice, and only then, depending on the results of such test, to discuss the question about its introduction on the constitutional level. However, the new scheme of election has not show itself positively in action yet. In the constitutional sense it looks nonoptimal, and in political one – evidences on the unjustified haste.

It is impossible to say now whether the Ukrainian society has gained something as a result of introduction of the proportional system. Although the final version of the Ukrainian constitutional reform is the most well-thought-out in comparison with the previous propositions, it is obvious its effect would be observed not in the immediate future. All in all, the new constitutional reform is relatively simple. Henceforth the President will govern the foreign policy of the state, defense, internal safety and the heads of local state administrations. Other questions of internal political management will be solved by the Cabinet of Ministers and the Council of national safety and defense. Weakening of executive vertical of power is obvious, but it seems that it was one of the goals of the reformers.

A system drawback of the constitutional reform is, in our opinion, attribution of some ministers if the Cabinet of Ministers of Ukraine (in the sense of their appointment to posts and factual subordination) to the President of Ukraine, and other ministers – to the Supreme Council and Prime Minister. As we have already said before, the foreign and internal politics of Ukraine got into different hands as a result of new order of appointments and subordination.

Since, according to the reform, the post of the President of Ukraine is not only representative, but also really influential from the viewpoint of some executive functions (foreign policy, internal safety, etc.), in practice it threatens with deformation of the executive vertical, openly unproductive competition of the President, Prime Minister and the Secretary of the Council of national safety and defense in the framework of the general branch of the state executive power.

If to recollect that the competition of posts of the speaker and President already exists in Ukraine, the logic of the constitutional reform looks even less comprehensible. To say it simpler, competition of the highest posts, which belong to different power branches is constitutionally motivated. At the same time, it is difficult to call reasonable the competition of the highest state posts in one (executive) branch of power.

We reckon that the authors of the constitutional reform looked for a strategic compromise, but the way out, found by them, appeared to be a compromise of the conjuncture tactics. As a result, the juridical scheme, which had been already condemned by the Venetian Commission, was again lifted to the constitutional level. In our conviction, such decision and such version of the political reform make Ukraine not so much a parliamentary republic as an awkward legal conglomerate, new formation inconsistent in the political sense.

The fact that, according to the reform, the President has the right to disband the Parliament in three cases (each of which can be a result of many reasons) makes inconsistent the thesis about turning of Ukraine from presidential republic to parliamentary one.

Now the President is directly concerned with forming of the Cabinet of Ministers and the appointment of heads of local state administrations (Ukrainian version of governors). Yet, in fact, ministers and heads of local administrations also substantially depend on the Prime Minister. So, having appointed certain members of the Cabinet of Ministers and the heads of local administrations, the President leaves the latter on the will of the head of the Cabinet. Naturally, if Ukrainian governors were elected at the local level, instead of being appointed by the President, this would be a sufficient reason for the constitutional reform. Yet, nobody speaks now about election of governors by the population. The principle of direct dependence of governors on the President remains invariable.

As to the relations between the President and the Supreme Council (Parliament) of Ukraine, they, in accordance with the reform, will not change in favor of the Supreme Council. Moreover, the Supreme Council will become even more dependent on the President’s will. Is it has been already said President’s authority concerning disbandment of the Parliament increases thrice. That is why the reform weakens the influence of the President within the bounds of the executive power branch, but, at the same time, noticeably increases his control over the Ukrainian Parliament. Certainly, in that way the reform turns Ukraine into relatively inconsistent parliamentary republic.

The constitutional reform almost did not change the judicial system. It is difficult, in our opinion, to support the partial reanimation of the general surveillance of the prosecutor’s office over the observance of human rights and freedoms. Experts believe that the partial restoration of prosecutor’s surveillance over realization of citizens’ rights and freedoms can be explained not so much by the low legal development of Ukraine (as the official Strasburg reckons), as by the low level of income of many common citizens of Ukrainian population. Indeed, the protection of rights, freedoms and interests in courts remain, for many common citizens of Ukrainian, very expensive and casuistic procedure.

All in all, it would be possible to reconcile to the reform, if Ukraine had essentially higher level of civil-political development. Yet, Ukraine is a very young democracy, and the use of parliamentary mechanisms and procedures for settling of most of its problems hardly would suit its young political system.

H. Arendt, analyzing the features of any organic revolution, pointed out that real revolutions always widened the bounds of people’s representation. This means that the social basis of state government becomes more and more wide and democratic with every revolution. Something quite opposite to that one can observe as a result of the constitutional reform, since, according to the reform, the direct influence of demos on the Ukrainian politics essentially decreases. Although Ukrainian citizens still will election the President, and the mass media will work, we hope, without censorship and “temniks”, this will not noticeably influence the political course of the country. That is why consequences of the constitutional reform can be considered from the viewpoint of legislative revolution.

After all, the President with the after-reform authorities could be election in the Parliament, and only subordination of local state administration to the President still allows to consider his post as a counterbalance to the legislative power branch in the state. If in future the heads of state administrations would become elective, the nation-wide election of the President would finally lose its sense.

It should be also taken into account that, after the election of President V. Yushchenko, Ukraine won the chance to become not only democratic, but also positively aloof from the post-Soviet republics country (like the Baltic countries). However, just because of that, only the vicinity with Russia is sufficient for proving of Ukrainian presidential republicanism. We mean, first of all, the opportunity of quick President’s reaction to the foreign-policy appeals of Russia.

It is not very important for the European-Atlantic political world, will Ukraine become parliamentary or presidential republic. Yet, the situation looks quite oppositely from the position of political relations of Ukraine with her Western neighbors. In this context it should be expedient to turn the attention to organizational disorder of Ukrainian political forces, factional selfishness of their interests, still existing demagogy of national parliamentary debates.

The paradox of the constitutional reform consists in the fact that, diffracting, in the parliamentary environment, responsibility for the strategic decisions in the country, the reform demonstrates the essentially increased political exactingness to tactical parliamentary maneuvers and operations. On the one hand, the Cabinet of Ministers and Supreme Council of Ukraine will be responsible for the current internal and strategic foreign (appointment to posts) politics of Ukraine. On the other hand, the unprecedented factional discipline is introduced for proper fulfillment of this role in the Parliament. So, whereas, in accordance with Article 81 of the operating Constitution, the decision on the pre-term termination of authorities of an MP in the cases of voluntarily dismissal, change of citizenship or departure for permanent residence abroad is taken by the Supreme Council of Ukraine, according to the reform, “if an MP of Ukraine, elected from a political party (election bloc of political parties) is not a member of deputies’ faction of this political party (election bloc of political parties) or in case of leaving such faction by the MP, his/her authorities is terminated before the proper term on the basis of law by the decision of the higher governing body of corresponding political party (election bloc of political parties) since the day of adoption of such decision”.

The new order of deprivation of deputy’s authorities evidences not only about introduction of strict factional discipline in the Supreme Council, but also about obliteration of the role of personality in the Ukrainian political process. At first sight this reminds consolidation of political brothers-in-arms around their ideological leaders, well-known in Ukraine since the Communist times.

The reform also establishes the demand on incompatibility of the MP’s mandate with other kinds of activities, prohibited by the Constitution. The non-fulfillment of this demand is a ground for the coercive termination of deputy’s authorities.

Thus, the constitutional reform restores the already forgotten in Ukraine imperative (party-corporative) mandate. A people’s deputy is considered here as a party pawn, ordinary holder of the card for electronic voting. It seems that the election to the Supreme Council can become a link in the mechanism of introduction not so much electoral as party priorities. Personal psychological peculiarities of an MP, his individual experience, intellect and geographic belonging to certain region would hardly be used there. All in all, as the preliminary calculations show, introduction of purely proportional system of election to the Parliament can result in the situation, when 85-90% of deputies would be dwellers of Kyiv.

It looks that the constitutional reform transforms the Parliament from the place of wide public discussions to arena for battles of factional gladiators. It is a pity, since in the context of the realized constitutional changes we cannot speak yet about the renascence of the stimuli of political action formulated by V. Havel: moral instinct, taste, ancient political wisdom and analytical delicacy of feelings. On the contrary one can state that, in the sphere of renovation of MP status, the constitutional reform sank into philosophical reduction, legal-logical simplification, lowering of constitutional matter to the demands of plane legislative tactics.

Moreover, joining of the voting for constitutional reform with introduction of changes to the current election laws was also ethically doubtful. When the faction “Our Ukraine” headed by V. Yushchenko demanded resignation of the government and the Central election commission (CEC), as well as urgent introduction of changes into the law on election of the President, it was not the question of political benefits of opposition, but the question of restoration of the organic right of Ukrainian people to vote for realization of its independent will. And the later lay not under, but above the participants of Ukrainian negotiation process.

As long as the political right to elect and be elected forestalls all powers, their branches and sub-branches, from the Parliament and President to the Cabinet of Ministers and the CEC of Ukraine inclusive, the electoral rights of Ukrainian citizens, their volume and regime of realization cannot be the subject of conjuncture agreements.

This means the principal impossibility of improvement of Ukrainian election laws on a security of parliamentary voting for the constitutional reform, as well as any voting at all. The will of people is sovereign in material and procedural sense, so it cannot submit to the whims of participants of any negotiation process. It is a priori supreme, it is organically above any leaders and political elite of the country as a whole.

So, the decision, whether to make the second tour of presidential election honest and transparent, could not depend and had not to depend on the superior, but all the same private by their essence, agreements. The values, which were affected, were incomparably higher than the interests of parliamentary factions or candidates for President’s post. Besides, the question of constitutional reform is too important to be squeezed into the life under the pressure of a transitory crisis. Constitution is a supreme regulator of the interior and foreign life of Ukraine, and it should not be a hostage of political tactics in no circumstances.

Somehow or other, but the internal politics of Ukraine has become prerogative of the Parliament – the political institute, the course of which can be corrected from outside under the conditions existing in Ukraine. It is known that the direct democracy is important, because the people cannot be corrupted physically. This famous thesis of T. Jefferson has been confirmed more than once in practice. So, reservation of the authority and effectiveness of President’s post, as well as his dependence on direct people’s will, remains an imperative task in Ukraine.

Besides, President’s post is an important counterbalance to possible external economic pressure on Ukraine. This argument is particularly serious, because Ukraine is now on the level of development, when her financial-economic power and public policy are practically joined. In these circumstances the special part in the political system of Ukraine must be played by the nation-wide elected leader.

So, the reduction of President’s status to representative and foreign policy functions, introduced by the reform, looks, in our opinion, as a threat even to the interests of state independence. It can be foreseen that corporatism in the political system of Ukraine will grow after introduction of the reform, and the influence of financial-economic groups on the Parliament will become systematic.

It should be also pointed out that the constitutional reform was lobbied mainly by the political adherents of former President Leonid Kuchma, as well as by representatives of parliamentary factions, which got not more than 5-6% of votes of Ukrainian electorate. So, it is doubtful that the constitutional ideas of the Ukrainian political outsiders, must be realized by their opponent V. Yushchenko.

Moreover, introduction of the constitutional reform with radical transformation of President’s authorities between the first and second tours of presidential election contradicted even the common sense. Either from the viewpoint of right or from the position of efficient politics the hypothetical situation, when citizens of Ukraine voted in the first tour for the President with one constitutional status and in the second tour -- for the President with quite another status, is absurd.

Hundreds of thousands of people stayed on the Nezalezhnost Square in Kyiv (Maydan) in order to elect the powerful leader. Consciously and subconsciously they relied on the force of his constitutional post. All in all, the strength of mind and spirit of the people on Maydan were noticeably higher than the ideological tone of the Ukrainian constitutional reform. The permanent orange meeting, unprecedented by its scale in the entire recent history of Ukraine, vindicated not the change of formal juridical institutes, but the change of corrupted actual power. During the revolution Ukrainian citizens protested not against the improper juridical shells, but against concrete individuals. The passing-bell, which sounded on the Kyiv square during two weeks, became the strong evidence of death of the remains of Ukrainian post-communism. Just then and there the Ukrainian citizens once and for all got rid of their eternal political fear, the spirit of dependence and slavery.

Recommendations

In our opinion, law draft No. 4180 on introduction of changes into the Constitution (now Law No. 2222-IV “On introduction of changes into the Constitution of Ukraine”) demands the repeated consideration by the Constitutional Court and the repeated voting by the constitutional majority in the Parliament. After the first consideration in the Constitutional Court, but before the voting in the Parliament on 8 December 2004, essential changes were made in the law draft. It is very likely that in the new, post-revolution, situation it would be rejected by the Parliament as the draft, not meeting actual needs of Ukraine.

In general, taking into account the above-mentioned peculiarities of the Ukrainian political situation, we propose to revise the law draft on introduction of changes to the Constitution of Ukraine in the direction of fundamentally other topics. First of all, the following ideas should be considered:

1.  It is necessary to stipulate in Constitution the status of the President as the head of state executive power. That is the President of Ukraine must be defined as a supreme state official, which heads the executive power in Ukraine. This means that we appeal for establishment of presidential republic in Ukraine.

2.  It follows from definition of Ukraine as a presidential republic that the Supreme Council of Ukraine (Parliament) must approve the government directly formed by the President. At that the political responsibility for the work of executive branch in the country should belong to President personally. Functions of the Prime Minister in the renewed Constitution should be stipulated as, mostly, administrative.

3.  The Supreme Council (Parliament) of Ukraine must effectively control the activities of government and the executive power as a whole through permanent and temporary parliamentary committees and commissions. For achievement of this goal the control functions of the Parliament and public (citizens and non-governmental organizations) must be noticeably fortified on the legislative level. This should be done by adoption of proper laws: on access to information, on government, on public control over the activities of state executive power, on political opposition. Elaboration and adoption of special law on impeachment, as well as the laws on parliamentary temporary, investigating and other commissions would be also useful.

4.  It is necessary to improve the Ukrainian procedural legislation on the Constitutional Court. Until now the Constitutional Court worked, as it is known, as an arbiter-intermediary in the conflicts between the President and the Supreme Council of Ukraine. At that the function of constitutional protection of human rights and freedoms was not seriously realized by the Constitutional Court. That is why we reckon that, for improvement of this situation in future, the list of subjects of handing the complaints to the Constitutional Court must be essentially widened.

5.  It is also necessary to develop and adopt the separate law on constitutional legal proceedings, since the Constitutional Court cannot be considered as a court of constitutional jurisdiction, in the full sense of this concept, without the detailed regulation of procedural questions on the level of laws.

6.  It is necessary to envisage in the Constitution reinforcement of the guarantees of independence of judicial power and the access to justice.

7.  The Constitutional status of prosecutor’s office should be changed leaving only the functions of representing of the state in court: support of state accusation in criminal cases and representing of state interests in civil processes. Functionally the prosecutor’s office should become a subunit of the Ministry of Justice.

8.  It is essential to envisage in the Constitution creation of the Investigating committee, where the investigating units of the Ministry of Interior, USS and prosecutor’s office should be transferred.

9.  It is necessary to liquidate the State committee in charge of TV and radio broadcasting; its functions, according to the Constitution, will be fulfilled by the National Council in charge of TV and radio broadcasting.