01.02.2008 | Yevhen Zakharov

We need a new Constitution!


For more than three years now virtually all human rights defenders have been calling for amendments to the Constitution passed on 8 December 2004 to be revoked.  The fact that the changes were adopted as part of a package vote, together with ordinary laws, was a flagrant violation of procedure for constitutional reform. Nor had the changes received appropriate checking by the Constitutional Court. Yet the Court was deliberately blocked by parliament and the President did nothing to remove these flagrant infringements.

The consequences of the inept changes have been disastrous. We have seen the creation of two centres fighting for power within the one executive branch.  The country has become steadily less governable, with increasing corruption of the political elite and the worst form of political collectivism where deputies are entirely dependent on the will of faction leaders and become button-pushing robots. There is increasing pressure on parliament from financial and industrial groups with it almost totally impossible for members of the public to exert influence on policy. It is now possible to not take ordinary members of political parties into consideration at all.

Particular danger was also seen in the disregard demonstrated the Constitution and laws of the country by the highest government bodies and high-ranking officials. One need only recall the deliberate blocking of the Constitutional Court by the then Speaker of Parliament Volodymyr Lytvyn; the active participation by the Head of the Supreme Court Vasyl Malyarenko and other judges, as well as the Human Rights Ombudsperson Nina Karpachova in the 2006 electoral campaign; the mass and chronic practice of vote-casting by National Deputies using others’ plastic cards; the adoption of Verkhovna Rada Resolutions instead of laws (such Resolutions cannot be vetoed by the President – translator), and others.

The model of proportional representation for district, city and regional levels of local self-government, introduced in 2006, also proved harmful. The extraordinary spread of salaries in the public sector also considerably undermines the foundations of power. What kind of national unity can one speak of when a National Deputy earns ten times more than and highly-qualified teacher or surgeon, and the maximum salary is 60 times higher than the lowest?

The Constitution has been destroyed, and it’s no longer possible to build on its basis.  The rift in the executive branch of power brought about by the constitutional amendments have led to conflict between the external and domestic political course of the country, between bodies of local self-government and State administrations in the East and South of the country. Combined with a revival of the retrograde style of management which typified the Kuchma era, this has led to a nationwide political crisis.  This is first and foremost a crisis of public faith in the authorities, resulting in many Ukrainians seeing the very idea of joining NATO or the European Union as frightening.  There is also the crisis linked with the economic divide between rich and poor, as well as between higher and lower-ranking civil servants. There is a crisis of constitutionalism and respect for the law resulting in high-ranking public officials daring to ignore the basic requirements of its legal system.

The Ukrainian State had reached a dead end and the dissolution of parliament was an attempt to put an end to the crisis. Yet simply dissolving parliament and calling early elections couldn’t pull the country out of a systemic crisis caused by the constitutional amendments of 2004.  As long as the Constitution which came into force on 1 January 2006 remains unchanged, no parliament and Cabinet of Ministers will be able to escape its destructive influence. Whoever becomes Prime Minister, conflict between her / him and the President is inevitable. And it will all be repeated again.

The constitutional amendments of 2004 must therefore be revoked. However at the present time this seems improbable.  Is it, moreover, a good idea to return to the past?  Does the Ukrainian Constitution passed in 1996 suit the present state of Ukrainian society? I believe that it is hindering social progress. It contains masses of social guaranties of the type: the right to accommodation, to a sufficient living standard, to work, to free medical care etc, which the State is unable to enforce. The widespread assertion that the Ukrainian Constitution is one of the best in Europe is of course insincere.

The Constitution of 1996 effectively consolidated the system of State relations that existed at that moment – a semi-Presidential unitary republic with a parliament lacking any real powers, a relatively weak judicial system and also a Cabinet of Ministers without any significant political functions and therefore constantly dependent on direct presidential support. In general, the lack of accountability of the state to society in the new Constitution remained almost on the level of Soviet times.

The main, while at the same time, «shadow» power in the State was wielded by the Presidential Administration – accountable to no one, managing everything, an effectively uncontrollable power structure. The government was to fulfil not only the President’s directives, but also those of the head of the Administration, while bearing full responsibility for the state of affairs in the country. At the same time the Prime Minister’s role was often that of a boy to take the beating.. It is hardly surprising that the holders of this post changed virtually every year.

All this, to a certain extent, doomed the role of the Constitution to be a force not of dynamism, but of stagnation in the Ukrainian socio-economic and political transformations. The Constitution, moreover, was a rather eclectic legal text with norms passed as a compromise which different political players – from the communists to the «Greens» – interpreted in their own ways. However, the contradictions imbedded in the Constitution fairly soon became apparent and not only at the level of party disputes and differences in interpretation. Shortly after its adoption, discussion began within society about the need for amendments and supplementary articles to the constitutional text.

Ukrainian society therefore faces the task of creating and passing an entirely new Constitution. And it is of fundamental importance that all adhere to it. Following the rules is much more important than who wins political battles. The main thing is that all must keep to the rules and not adapt them to receive the desired result, or post fact.

What State model should the new Constitution envisage?  In my view the events of 2006 – 2007 demonstrated clearly that Ukraine is not yet ready for a parliamentary republic since the party system undeveloped. All parties in some strange way are reminiscent of the Communist Party of the Soviet Union. In each case the main issues are decided by one or several leaders. It is to be expected that these leaders demand the imperative mandate, understanding it as effectively strict factional discipline. However world practice shows that one receives the best results from a pluralistic society, where respect for individuals’ intellect combines with collective tolerance. It is clear that the Ukrainian parliament built on party lists is not capable of this.

Another consequence of proportional representation is the dubious legitimacy of the Verkhovna Rada where more than 250 Deputies represent the capital, with very weak representation of regional interests. We need a two-chamber parliament, with one chamber representing the regions.

The proximity of a strong presidential Russia makes it necessary to have adequate effective mechanisms for decision-making, this being a presidential republic. The President should head the executive branch of power, organizing and coordinating the work of the government. Both chambers of parliament – a higher, chamber of the regions, and lower, formed on a proportional model, must have strong mechanisms of control over the work of the executive. These are at present very weak. The new Constitution must allow for a much stronger and truly independent judiciary. We need to seriously strengthen constitutional protection of human rights and fundamental freedoms, as well as local self-government.

The current Constitution does not envisage consideration of an entirely new draft, with parliament only having been mandated to only pass a Constitution once, with only changes and additions possible. Since the people are the single source of power, a new Constitution must be passed at a referendum. According to the present Constitution the President can submit this for a referendum, but first a draft needs to be prepared and thoroughly discussed.

The Presidential Decree from 27 December envisages the creation of a National Constitutional Council, made up of academics, politicians, regional representatives delegated by bodies of local self-government and public figures. The President will confirm the Council’s makeup and head it.  The Council should discuss and prepare a draft Constitution which must then be widely discussed.

Can such a draft be legitimate enough to be put to a referendum?  I doubt it since it is effectively created by an advisory body under the President.  There needs to be another stage before a referendum, consideration and passing of a draft prepared by a special representative body – a Constitutional Assembly.  This cannot be entrusted to parliament since the latter is too removed from society and the temptation to adapt the Constitution to its selfish interests is unavoidable. The Constitution is an act of civic society and should not be adopted by only professional politicians. Therefore a condition for all members of the Constitutional Council should be that they cannot run for office during the next parliamentary term.

It would be desirable if parliament passed a draft law for a Constitutional Council in the first half of 2008. This would demonstrate public consensus on the need for a new Constitution and the procedure for passing it.  Parliament’s attitude to this will be the litmus test which will demonstrate their real, not just declared concern for Ukraine’s national interests.

Be that as it may, it is clear that a new Constitution is needed and as soon as possible. It is equally clear that this must not be done in haste. 2008 will show whether Ukrainian society is mature enough to avoid conflict around the adoption of a new Constitution and build a strong foundation for future progress.


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