The dazzle and squalor of the constitutional process in Ukraine

During 2007 there was a great deal of talk about the need for constitutional reform.  Presidential Decree №1294/2007 from 27 December envisaged the creation of a National Constitutional Council [NCC] which would include academics, politicians, regional representatives delegated by bodies of local self-government and civic figures. The President would head the Council and approve its makeup. The Council would discuss the concept for a new draft Constitution and prepare this draft.

What should the role of the NCC be?  It is a consultative and advisory body under the President and it can, in my opinion, be viewed only as a convenient tool for preparing decent draft amendments and additions to the current Constitution or a draft new version of the Constitution. The NCC has no authority to review draft laws or approve any decisions, this being the prerogative of a representative body – either the Verkhovna Rada or a Constitutional Assembly especially elected for this purpose. There should also be wide public discussion of changes to the Constitution. The draft needs to be printed in large numbers and sufficient time given to ensure that all those interested have the opportunity to read it and make their comments.

The Constitution is an act of civic society and it cannot be passed solely by professional politicians who will certainly not manage to avoid the temptation of adapting the Constitution to serve their own selfish interests, or will sabotage its creation altogether. A decent draft can only be drawn up with the participation of well-known public leaders and lawyers who have people’s trust. And there was a possibility of creating a National Constitutional Council reflecting the diversity and different views of Ukrainian society: many civic associations put forward their proposals for well-known public figures to be included in the NCC. However the makeup of the NCC approved on 18 February by Presidential Decree № 139/2008, is a downright disappointment. Of 97 of its members, 40 are National Deputies [MPs] with 12 from the Party of the Regions; 11 from Our Ukraine – People’s Self-Defence; 9 from BYuT – Yulia Tymoshenko’s bloc; 5 from the Lytvyn Bloc; and 3 from the Communist Party. There are 9 employees of the Presidential Secretariat, 4 from parliamentary institutions; 2 civil servants; and 6 heads of regional councils.  In a word, we see the entire political beau monde. There are only 13 specialists in law, including 5 retired judges of the Supreme and Constitutional Courts; 13 representatives of the National Academy of Sciences and higher institutes. There are 9 members of civic organizations, the vast majority of which are extensions of the same authorities.

What could this choice by the President’s Secretariat indicate?  I would hazard a guess that this makeup of the National Constitutional Council is a difficult compromise which was achieved in order to get a public constitutional process starting and to legitimize the Council. It would seem that no political forces, aside from Our Ukraine – People’s Self-Defence, consider changing the Constitution to be of priority, while without the participation of all parliamentary factions the Council will have no legitimacy. Yet will it be able to work with such a makeup, and could it not turn the preparation of changes to the Constitution into pure political squabbling? I would be glad to be proved wrong however it is difficult to believe that such a Council has any chance of succeeding. This was confirmed by the Council’s first meeting.

The meeting took place on 20 February. At first the President briefly spoke of the need to write a new Constitution and gave his views about the changes needed. He was supported by the Speaker of the Verkhovna Rada who called on all political forces to work together on the draft. However when the discussion turned to organizing the Council’s work, the various political factions’ entirely different attitudes became apparent. The Council Secretary Marina Stavniychuk suggesting dividing the Council up into five committees: on the fundamental principles of the constitutional order and the rule of the people; on human and civil rights and liberties; parliament, the Head of State and. the Cabinet of Ministers; the justice system; the territorial organization of power and bodies of local self-government, as well as choosing 15 members of a working group to prepare a draft Constitution. However this didn’t suit the politicians. Viktor Yanukovych said that first a concept for constitutional changes needed to be prepared by a working group and discussed, and only then should the committees be formed since it wasn’t clear how many and which there should be. Mykola Tomenko then stated that BYuT was against the creation of a new version altogether and supported only amendments and additions. It was therefore unnecessary to form a working group, and the five committees mentioned should work towards improving and optimizing the relevant sections of the Constitution.  Petro Symonenko said that before any working bodies of the Council were created, there needed to be discussion of the concept for constitutional changes and he proposed beginning that discussion immediately. In short, it was all extremely reminiscent of the Verkhovna Rada. Mykola Onyschuk explained that the working group and committees should work together, passing on what they had prepared and making both the concept and the actual changes more specific.  The President interrupted this discussion, saying that the makeup of the working bodies had been approved, that they would begin work the following Tuesday and ended the first meeting.

Since 20 February the NCC has not met at all. As far as I am aware, 5 of its commissions have similarly not begun work. A draft Constitution, prepared by the working group, which was subjected to devastating criticism was posted on the website “Glavred”. The specialists named on the site as the authors of the draft confirmed that it was one of the variants which the working group considered, however not yet the final one. It looks as though the President’s Secretariat is waiting and deciding what to do next.

Predictions for the fate of this National Constitutional Council and the constitutional process as a whole are fairly pessimistic. In this there is consensus between constitutional specialists and politicians. On the other hand, the Constitution which was destroyed in 2004 has become a source of systematic political confrontation and as a consequence of the destruction of the State. Without changes to the Constitution, there can be no end to this destruction. Those political figures who appreciate the burden of this responsibility simply must try to continue the constitutional process. For that reason, although at first glance the Council and its members would seem unable to function and have already effectively not been working for a month and a half, the situation forces us to seek a solution.

In my opinion, the main weakness in the position of the stage managers of the constitutional process lies in the lack of public access and trust in society.  The stage managers are constantly trying to find shadow, behind the scenes, means for conquering their political opponents.  While, I believe it’s necessary to make the constitutional process as public and open as possible. Ukrainian civic society should state its position. A public constitutional council could be created, with this proposing its draft Constitution and demand its discussion and consideration.

What are the possible scenarios for the constitutional process? Hopes for the introduction of amendments and additions to the current Constitution under the present procedure are as I see it unwarranted, since parliament is not capable of this. I think that those politicians who are calling for this variant of constitutional reform are simply not sincere. The appearance of a new draft Constitution which the President will try to put to a referendum is possible. However even a decent draft must be discussed by society, the NCC and in the representative body, otherwise it is doomed. Ukrainians don’t put up with attempts to force them. I think that there should only be talk of a referendum when all other possible paths have been lost.

We should note that if a decent draft Constitution appears which people like, the question of the legitimacy of its adoption becomes secondary. In 1956, De Gaulle, having received parliament’s consent to make some amendments and additions to the current Constitution, proposed for referendum an entirely new draft which was passed. This was termed a “constitutional revolution”, yet France received one of the best constitutions in the world, which competes with the American Constitution and is a source of pride to the French.

Be that as it may, we are presently only at the beginning. The constitutional process will still bring many surprises. The difficulty lies in the fact that not a lot of time has been put aside for this, while it is impossible to neglect all the vital components each of which requires a lot of time. It remains to be seen whether we will be able to reach a compromise.