On protection of peoples sovereignty and the Constitution. Appeal to the President of Ukraine
To President of Ukraine V. Yushchenko
12 April 2005
Respected President Yushchenko!
The Ukrainian people, which expressed its will at the past election and defended its choice at the Maydan, realized, being the only carrier of sovereignty in our country, its sacred constitutional right to elect the President – it elected you.
Electing you to the Presidents post and defending yours (and, in essence their own) victory, the Ukrainian citizens, maybe for the first time in the history of our state, filled with the real substance the constitutional provisions on sovereignty of the people and free peoples will (Articles 5, 69 and 71 of the operating Constitution of Ukraine). They elected their President for the term and with the authorities envisaged by the Basic Law.
Unfortunately, the election process, which was carried out in strict confrontation with the system, a priori founded on the illegitimate and anti-democratic principles, resulted, because of political compromise, in creation of Law of Ukraine of 8 December 2004 No. 2222-IV «On introduction of changes into the Constitution of Ukraine». Assessing this legal act from juridical and social viewpoint, one should state the following:
1. Law draft No. 4180 turned into the Law with fundamental procedural violation: the text was put to the vote, which noticeably differed from one that had been considered by the Constitutional Court, although, in accordance with the Basic Law of Ukraine, in such case the changed law draft had to be considered again by the Constitutional Court.
2. Law No. 2222-IV, in our opinion and by the conclusions of many specialists, is self-contradictory and does not meet the demands of the modern stage of development of the Ukrainian state, especially if to take into account the European prospects of Ukraine, which have appeared after your election to Presidents post.
3. Finally, and it is most important, Law No. 2222-IV not only do not coincide with, but is even contrary to the vector of peoples will, directed at the election of the head of the state for the term stipulated by the Constitution and with the authorities determined by the Constitution.
This moment must be elucidated in details. According to Article 103 of the Constitution, the President of Ukraine is elected for the term of 5 years, and his authorities are stipulated in Article 106. It should be noted that item 2 of Article 1 of the Law of Ukraine «On election of the President of Ukraine» reads that the President is elected for the term stipulated by the Constitution. The only possible conclusion may be drawn from that, the conclusion, which is unambiguous both from judicial and political standpoint: electing the President of Ukraine the people gives him the authorities, fixed in the Constitution valid at the moment of election, for the term of 5 years. Another interpretation has nothing common with democratic principles, even if to abstract from the formal jurisprudence. So, the MPs, which voted for the «political reform», had neither juridical nor moral right to meddle, in this way, in the sphere of election of the head of the state by people. Such meddling directly contradicts the principle of peoples sovereignty and the exclusive right of people to establish the constitutional order. Besides, Law No. 2222-IV, which, in fact, introduces the possibility of pre-term cessation of some authorities of the President, contradicts Article 108 of the Constitution, which establishes only the possibility of pre-term cessation of all Presidents authorities. One can say about the change of Presidents authorities only in the connection with new cadence of the next President.
The political expediency may not dominate over peoples will, and the peoples will may not be a subject of lobby agreements of a group of persons, even those, who have deputies authorities.
In your inaugural speech on Nezalezhnost Square you said, in particular, that lawlessness could not be a norm in the state and that you saw Ukraine as a state guided by the principle of superiority of right. In the end of the past year Ukrainian citizens defended the superiority of right. Now it is yours turn, as the guarantor of the Constitution. We do not deny the expediency of introduction of changes into the Constitution, but we are sure that such changes, directed at the maximal guaranteeing of citizens rights and freedoms, as well as the efficient functioning of the state apparatus in the context of the European prospects, must be a conclusion of public discussion and irreproachable juridical procedure. Otherwise peoples sovereignty would be trampled, the principle of superiority of right would be violated, and legitimacy of the Basic Law would become doubtful.
Taking into consideration everything above-said, we are turning to you with the plea to take all needed juridical and political measures for the protection of the operating Constitution and, at the same time, for initiation of the process of really democratic constitutional reform.