UKRAINIAN CONSTITUTIONAL PROCESS IN 2013: HOPE VS. REAL POSSIBILITIES
As has been repeatedly noted earlier, after the Constitutional Court of Ukraine on September 30, 2010 had abolished the “political reform” that had divided national political entity into supporters and opponents of the parliamentary republic, the constitutional process came under the influence of the idea of Leonid Kravchuk about establishment of the Constitutional Assembly of Ukraine, which would update the national basic law. Viktor Yanukovych has supported the initiative and January 25, 2012 issued the relevant Decree. The community of politicos met this move in different ways, because it was problematic to update the Constitution of Ukraine on a voluntary basis, as required by the Decree. Either way, the opposition refused to join the constitutional forum.
As Volodymyr Shapoval, Professor of Constitutional Law, wrote in the 90's, the Constitution of Ukraine in 1996 was designed as a Basic Law of the state, and not of the civil society, that is, its potential regulatory a priori had time and space limits. Intended for the post-totalitarian state the Constitution proved functionally deficient in terms of political freedom and market economy. Therefore the Constitutional Assembly in its activities decided to follow not only the laws of Ukraine, but also the principles and norms of international law. It targeted the principles of supremacy of law, collegiate style, self-government, transparency, openness, independence in decision-making, professionalism and scientific orientation.
The work of the Constitutional Assembly resulted in publication in September 2012 of the reports of the heads of commissions[2] and the project of the "Concept of amending the Constitution of Ukraine” (hereinafter: the Concept) adopted on June 21, 2013. It was brought up for critical discussion, but ended in prior approval (66 pros and 4 cons). So the official Ukraine gained a renewed philosophy of its constitutional existence.
Common approaches
The concept begins with a statement of “general methodological approaches”. In particular, it reads that the renewed Basic Law shall “implement the best modern European constitutional achievement s in the field of constitutional law”. The Renewed Constitution has to become an act which “establishes principles of an innovative model of social and national development”. But if Ukraine really tends to progress, it will not suffice to confine itself to the achievements of European constitutionalism only. The fact is that European constitutionalism is but a mild reflection of bolder American constitutional approaches.
Even if one does not take into account that Mykhailo Hrushevskiy considered American constitutionalism exemplary and that American constitutional ideology experienced its ups and downs, one may assert that the modern American constitutionalism is tempting not only for the east and center, but also for the west of Europe. The case in question is the doctrine of economic constitutionalism, as well as the unique attitude of the U.S. Constitution toward the freedom of speech and press (including the more recent decisions of the Supreme Court of the United States and toward the intellectual freedom of expression in general). With the adoption of the First Amendment the North Americans brought freedom of speech and of press beyond the possible legal restrictions boosting domestic progress. In this way they legally separated spheres of symbolic and subject-material (physical) reality. Hence, in 1791, in the United States the postmodern principle in the field of intellectual creativity actually became effective: anything goes. Since then, the U.S. Congress is not empowered to seriously modify or optimize by setting any limits to the freedom of speech, freedom of expression of a modern man.
Meanwhile, Europeans, pursuant to Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the provisions of the Charter of Fundamental Rights of the European Union (2000) strongly forbid limiting the freedom of intellectual expression only in the fields of literature, art and science. This approach is like that in the U.S., but not identical to it. According to Ulrich Beck, current progress is determined not by the parliamentary or governmental activity but by free chaotic and stochastic work of creative people and institutions. That is why the most active type is best suited with the ban on any limitations of the freedom of intellectual expression in legislation, not just on the executive level. It is no mere chance that the greatest number of discoveries in the world is made in the U.S., and the total number of American scientists is more than four times the number in a united Europe.
If the Constitutional Assembly of Ukraine is serious about Ukrainian progress, it should declare the inadmissibility of restrictions on freedom of speech and press by referendum or legislative assembly. And this ban should top the list of priorities of the Basic Law. Unfortunately, the draft Concept does not tackle this question.
The next issue of strategic importance and weight is the definition of “the highest social value”. The current Constitution declares a person's life to be such value (it tops the corresponding list in Article 3). The concept does not even mention the possibility of changing that rule. The only thing that the members of the Assembly dared to admit was adding of the category of freedom to the existing list of social values. The Concept reads: “In order to ensure the real principle of justice and establish a democratic, legal, socially-oriented, environmental state the focus should be on the recognition of the priority of human values (life, health, honor, dignity, freedom (my italics – V.R.), immunity, and security.”
The unjustified absence of freedom in the listed categories of the highest social values of the Constitution was often in the limelight. As early as on January 11-13, 1996 the International Juridical Forum in Huta-Syniohora proposed to add the category of freedom to the list of the highest constitutional values. However, a few weeks later the Ukrainian developers removed the concept of freedom from the constitutional project.
However, it is not enough to simply include the fundamental category of freedom into Article 3 of the current Law. Firstly, this notion is far down the list from the top-rated values (and there are no random lists in the Basic Law); secondly, the list combines values from substantially different semantic registers. For example, the value of physical life openly contrasts with the value of the preservation of national freedom: it is clear that the words of the national anthem of Ukraine "souls and bodies we'll lay down, all for our freedom" put freedom above the physical existence of a citizen.
Noteworthy is the fact that the life of an individual as a physical being was not the highest social value neither for the Christian martyrs, nor for such authorities of antiquity as Socrates, Herodotus, and Sophocles. Later historical and philosophical understanding that the human life is the highest social value was argumentatively criticized by Hegel and nowadays by Alexander Kozhev and Francis Fukuyama. That is, there is no doubt that the human life is of the highest personal value for an individual. However, the nations tend to relatively easy sacrifice the lives of their citizens to preserve their sovereignty, political freedom and territorial integrity of the country. A politically immature, “infantile” nation can sometimes fail to differentiate values of freedom, on the one hand, and the lives of citizens, on the other, but politically experienced people readily hierarchize priorities.
The concept also states that “the constitutional regulation is based on relationship between an individual and the state, society and the state”. This approach is reminiscent of an extract from a Soviet law textbook. Consciously or unconsciously the authors of the concept ignored the thesis universally recognized in the Euro-constitutionalism that the purpose of any real (organic) Constitution is functional limitation of any (even democratic) government. Based on the ideas of Rousseau, Montesquieu and Locke's the main constitutional models are grounded on the fact that the state is a potentially dangerous subject prone to chronic extrapolation of its power. That is, any state in terms of the purpose of the constitutional regulation is a rigorous Hobbesian Leviathan. To cope with it, one had to devise a constitution as a meta-law of civil society.
In dealing with the issues of strategic importance and content the Concept should have been guided by the fact that the mature Basic Law is a legal guarantee of cultural, political and economic development of the country. As follows from the classical doctrine, the organic constitution is designed to prevent “splitting of the atoms of freedom, democracy and market”. The strategic objective of genuine constitution is progress which is achieved due to creative initiative and activity of the maximum number of individual and collective actors. This refers to a radical acceleration of all social transactions, rapid growth of social capital (trust in the individual, her/his abilities), reduction of control, registration and licensing bodies, ensuring the economic, political and personal freedoms, non-interference in the private sphere and life of the whole civil society.
Hence, the renewal of the Constitution of Ukraine should rely not on the state but on the civilized business, science, education, academic freedom, spontaneous creativity, resources of the information society and globalized world in general. From the perspective of the renewal of the Constitution of Ukraine the market economy should become the embodiment of the principles of economic freedom, like the liberal democracy embodies the principles of political freedom and inviolability of private and family sphere as a guarantee of individual freedoms of an individual. All reasonable (not necessarily moderate) interests of individuals and private entities should be protected by the Constitution. In terms of modern constitutional design, no one can abrogate economic, political and personal freedoms of the people. Only partial limitations of their implementation expressly specified in the Constitution as a meta-law may be possible.
The state should not limit or control business initiatives. At the constitutional level, this should mean that the Ukrainian State guarantees on its territory the free movement of persons, goods, services, and capital. The size of state and local taxes should not threaten economic freedom. The trade should be optimally free and domestic and foreign investments should be encouraged in every possible way. No wonder, the idea that the state must guarantee the free movement of labor, goods, services and financial resources is a leading European slogan. This regulatory requirement is a key element of the Charter of Fundamental Rights of the European Union and the Lisbon Treaty and is, in fact, a basic principle of vital activity of the united Europe. According to classical liberalism which has been fully confirmed by the history of the USSR, the state eventually abolishes the market economy replacing it with comprehensive totalitarian socialism, if it is not restricted with genuine constitution.
According to the concept “in order to ensure the stability of the constitutional order in the revised Fundamental Law of Ukraine it is necessary to implement the separation of laws [into] constitutional, organic, conventional, laws on ratification of international treaties”. This requires a different number of votes of the deputies depending on the seriousness of the subject regulation. This approach seems thoughtless from the political point of view as it allows the immature Ukrainian opposition to block the adoption of the most important bills. The Ukrainian political opposition is constructive only on paper. In practice, it is overly excited and unyielding. Ukraine lives without the Greater Coat of Arms of Ukraine, because 300 deputies are against its graphical design. If the same fate befalls the “constitutional laws” about elections, referendum, impeachment or local self-government, the country is not to be envied.
Preamble and principles of the constitutional order
As follows from the concept, the Constitutional Assembly suggests to “save value objectives and initial targets worded in the Preamble of the Constitution of Ukraine”. The novel for the Preamble reads as follows: “to supplement the list of political and legal guidelines <…> with the provisions relating to the strengthening of the unbroken completeness and unity of Ukraine and statement of Ukrainian state as a part of the World European Community with the desire to develop an environmental state [and] civil society”. The Assembly also considers it possible to include in the preamble the objective of “social justice”.
The deficiency of this approach consists in the lack of understanding of the Basic Law as a strategic limiter of the government and poorly disguised statist paternalism. The idea of autonomism, separateness of a politically free and conscious of her/his goals individual is the genetic resource of Western constitutionalism. That is the constitution is a manifestation not so much of the spirit of unity and collectivism, as healthy individualism and creative freedom. The organic basic law protects the free state of society and therefore integrates people based on their "collective" desire not to be under wardship. Unfortunately, the Ukrainian interpretation of the Constitution, at least for now, is significantly different: it is considered as a kind of Leninist “Iskra”, a collective propagandist and organizer.
The intention to “develop” civil society worded in the Preamble also sounds paternalistic. The integrative feature of civil society is realized through the desire of its members to preserve and defend (against the state) their political, economic and personal freedom. In the context of Ukraine, the quest for the “social justice’ looks rather problematic. Unfortunately, Ukraine still remains a state of poor workers and peasants. And for the majority of poor people the ideal of social justice consists in a redistribution of wealth, not its growth. Against this background, the slogan of social justice looks like moral affixment held by domestic dictators, demagogues and political adventurers.
There is also a provocative statement in the Concept that “the provisions of the fourth part of Article 5 of the Constitution of Ukraine: “The right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials” were not developed in other Articles of the Constitution of Ukraine <...> remaining an abstract declaration.” In fact, if we do not take into account the Law of Ukraine “On the National Referendum” approved in 2012, in Ukraine there is no constitutional mechanism that would help to avert a political disaster in the case if the state or separate branches of power usurp national sovereignty.
The Constitution unequivocally condemns the seizure of popular sovereignty by the state apparatus, but does not utter a word about a legitimate way out of this situation. The Constitutions of many Western democracies provide in this case for the right of people to legitimate democratic uprising. The constitutions and constitutional laws of the United Kingdom, Germany, Lithuania, the United States, Czech Republic, Greece, Estonia and others foresee different forms of the possibility of a popular uprising. So the focus of the Constitutional Assembly on the guarantee of national sovereignty is clearly justified. Unfortunately, it is nothing but external focus in this case.
The concept practically does not recognize the legitimacy of the democratic justification of the rights of the Ukrainian people to rebellion. From the formal legal side, this approach is, in its own way, logical for the current Constitution does not recognize freedom as the highest social value of Ukrainian people. And if the freedom of people is not the highest social value, then who needs a democratic rebellion? Instead the Concept repeats once and again about the principles of “guaranteeing”, “compliance”, “protection” and “assurances” by Ukrainian state of the rights and freedoms of man and citizen. Such declarative statements in the area of human rights and freedoms require more specific explanation.
First, attention is drawn to the fact that the Concept once again speaks of ensuring and guaranteeing the subjective rights and freedoms in the paternalistic spirit. For example, it dwells on “the duty of the state to observe and protect these rights”, “determination of an effective system to ensure and protect the constitutional rights and freedoms”, “optimization of correlation of the civil society and the state” and even a combination of “self-regulation of social processes in economics, politics, spiritual and other spheres of life with public administration in these domains.” The international statistics shows the true value of this approach. Having included into the Constitution the proposition that human life is “the highest social value” (Article 3), Ukraine (according to the magazine The Economist) ranks first in the world in terms of its population mortality. In its strange urge toward combining and merging everything the Concept says, on the one hand, about the individualistic “human value and guarantees by the state of its rights”, and, on the other, about the “principle of unanimity of state power”, “constitutional institutionalization of social partnership” and “public importance of ownership”.
Instead, the real guarantees of subjective rights by the state should have meant the implementation, in the first place, of market relations as a broader system of timely recognition and rewarding of human abilities and talents. This includes the full recognition of land ownership and the “absolutism” of property in general. Today the property objects may be taken away at book (not market) value when it comes to satisfaction of “social” needs. Also Ukraine would better abolish internal passports with the registration of citizens and foreigners at the place of residence. Even more acute is the problem of autonomy of even the best universities and academic freedom in general in Ukraine. It’s high time for implementation of insurance medicine, radical narrowing of the bracket of budget salaries, cancellation of fantastic privileges and sinecures for officials.
The rights, freedoms, and duty
This section of the Concept is one of the most appropriate. However, the alarming is the requirement to “balance" human rights and freedoms with “the rights and lawful interests of other subjects and the entire community as a whole”. It is unclear who shall install or restore the appropriate balance and how to combine the requirement of balancing human rights with the rights of the state and society on the basis of priority subjective rights already declared in the principles of constitutional order. Obviously, the Concept’s positive is the requirement “to extend constitutional possibilities of civil society organizations (especially the most representative trade unions and associations of human rights organizations) to affect the rights and freedoms and control (my italics – V.R.) their implementation and prosecution of officials accountable for their violations.” In addition, the Concept points to the need to “create real conditions for public human rights institutions to [implement] sufficiently broad powers necessary to carry out their functions.”
The scientific analysis and simple common sense suggest principles on which the renewal of Ukrainian approaches to the formulation of the rights and freedoms of man and citizen ought to be based:
• The constitutional definition of subjective rights, freedoms and duties of man and citizen should be realized both as the legal standard for a country that considers itself a potential member state. This means that the in-transit people that crossed the border of Ukraine should not encounter significant reduction of guarantees of their subjective rights. For this we need to establish a reliable national standard of protection of rights and freedoms.
• The rights and freedoms must be submitted in the wording of the European Convention 1950 and protocols to it signed on behalf of Ukraine. It is necessary to add to the Ukrainian list of rights certain rights and freedoms of the Charter of Fundamental Rights, to which refers the Lisbon Treaty.
• Defining the subjective rights and freedoms one should be guided by the fact that the number of foreigners in Ukraine is constantly increasing. This refers to persons permanently or temporarily residing in Ukraine, while remaining foreigners or stateless persons. The Constitutional Code of rights and freedoms should focus on the rights of foreigners in Ukraine to a far greater extent than today.
In so doing the entire range of constitutional rights and freedoms should be perceived not as a sphere of detailed paternalistic efforts of the Ukrainian state, but as a space of autonomism, “separatistic” individual, in which limits he really determines his priorities and gradient of his efforts. In this very domain a person chooses her/his own strategy and tactics of his conduct and is fully responsible for her/his actions. In this way it would be worth doing away with non-obvious, but actual perception of the Ukrainian Constitution as “the basic law for the poor”.
The complex of constitutional rights and freedoms should contain (as a principle or otherwise) references to the three-part test by which any restrictions on rights and freedoms must a) be established by the constitution and the law only; b) accurately reflect legitimate (provided for in the Constitution) objective; c) initially deemed necessary in the democratic society. In addition, the constitutional code of rights and freedoms should include a presumption that certain constitutional rights, freedoms and duties apply not only to individuals but also legal entities. Therefore the title of the second chapter of the Constitution should be rather changed to: “The rights, fundamental freedoms, and duties”.
It is also worth changing the legal form of consolidation of social and economic rights. It is expedient to determine it following the legal model applied in the International Covenant on Economic, Social and Cultural Rights (1966). Then all positive social and economic rights shall be seen as the strategic objective, program of the government activity in the future. Obviously, most of the socio-economic benefits in Ukraine may be provided only by an effective market. And only in the case of socially weakened condition of an individual the realistic guarantees should be granted by the society and the state. In the future such legally proper guarantees may be sought juridically.
Formulating specific subjective rights it is necessary, as has been said above, to use not only the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), but also protocols to it adopted later. There is also a need to adopt basic rules of the European Charter of Fundamental Rights, in particular about the inviolability of human dignity, academic freedom, rights of young people, access to public information, rights of elderly people and so on. If the experience of using American First Amendment seems too radical to us, it is worth banning all restrictions of freedom of speech (self-expression) in the fields of science, literature, and art. The corner stone of the whole constitutional superstructure should be the constitutional principle of free movement of people, goods, services, and capital.
The constitutional list of the subjective rights and freedoms of speech and press (freedom of symbolic expression) should be defined not just as the first generation human right, but as a classic means of providing political and intellectual freedom, main pillars of the progress of Ukraine, channels of realization of the creative potential of Ukrainian people. The gist of this approach is in the fact that the freedom of speech and of the press (freedom of media) cannot be limited either by the parliamentary majority, or even the all-Ukrainian referendum. To do this, the freedom of speech and press should be moved to the “pre-political” space of Ukraine. This broad guarantee of intellectual freedom must be included into the first (principles of the constitutional order) part of the Basic Law.
Academic freedom
It should be noted that the latest version of the Concept provides a laconic thesis as follows: “It is proposed to include into Article 53 of the current Constitution of Ukraine additional provisions that the state promotes academic freedom and university autonomy, including the use of material resources and funds in accordance with their statutory tasks.” In general, the issue of constitutional recognition of academic freedom and/or autonomy of universities in Ukraine has deep philosophical and political and pragmatic dimensions.
At the philosophical level, the academic freedom and the associated autonomy of universities is a sort of “secondary” reflection of broader issues of intellectual freedom. Intellectual freedom is a prerequisite for social work, for which it is advantageous if the ideas (their circulation, rotation) have no boundaries. According to Bronislaw Malinowski, the intellectual freedom may be described in terms of a condition necessary and sufficient for determining and setting any goals; the conversion of this goal into effective actions through the instruments of culture; finding pleasure as a result of this kind of activity. In its turn, the intellectual freedom is adequately realized on conditions that: a) the objective of mental activity is selected by individuals on a free basis (indoctrination prohibited), b) actions intended to attain the objectives should remain autonomous (uncontrolled), c) the results of intellectual developments should remain freely available to the subjects of intellectual action[3].
As Albert Einstein wrote on a similar occasion, the most outstanding scientific achievements were made in an atmosphere of freedom; therefore the limitation of intellectual freedom is permissible only there where it is directly related to the threat to the survival of mankind[4]. Although intellectual activity often serves the achievement of predetermined objectives, in its best use it traditionally goes beyond the scope of the plan and its results cannot be predicted. No wonder, between science and higher education, on the one hand, and constitutional law, on the other hand, important relationships have been established. The main feature is the recognition of the fact that the control and excessive regulation ruin or destroy intellectual (scientific, educational) efficiency.
It is natural that in today's globalized world a number of imperatives, which are considered the foundation of academic freedom and university autonomy, have formed. In particular, since the best results of scientific and educational activities are direct results of intellectual freedom, this activity requires constitutional safeguards against the pressure of religion, politics, social prejudices, myths, etc.
That is the progress of culture needs the free market of ideas, guarantees of spontaneous improvement in science, art, and education. Equally necessary is a competition of educational strategies and methodological pluralism. The post-totalitarian countries urgently need to overcome vanity and xenophobia in the humanities. In general, the modern world encourages replacing the “instructive society” with a “community of dialogue” (Ulrich Beck), which stipulates the transformation of educational guidelines, stimulates multiplicity in research methodologies and learning as a whole. The globalization also generated the need of global education, university courses modernization toward global studies. Today the universities are supposed to develop critical thinking skills in students and encourage them to unconventional synthetic approaches and solutions.
All of it means that the university education should be as close to the research standards that are consistent not only with the principles of transparency didactics, but with "free work of imagination as well”. According to the theory of science, most of the discoveries were made in the past and are made today not so much due to the rules of logical inference, but rather due to “unaccountable performance” of scientific intuition. From this it follows in part that the best students should determine the scope of their interests on their own, choose disciplines and be masters of their knowledge. This, in its turn, makes Eastern European governments to provide for the University autonomy and academic freedom on their own territory. As for the older democracies of Western Europe and the U.S., the freedom and autonomy of universities are traditionally considered there as important institutions of law.
That is the academic freedom and university autonomy are seen in the Euro-Atlantic world as organizational and legal prerequisites for social go-ahead and progress. In particular, in the United States they distinguish four essential freedoms of universities: a) freedom to determine the grounds of academic essentials of education; b) freedom to choose and invite lecturers on their own; c) freedom to determine the methods of teaching on their own, and d) freedom choose future students on their own (which was dwelled upon by Ronald Dworkin).
This approach is based on a number of constitutional decisions of the Supreme Court of the United States, one of which states: “The University is supposed to ensure that atmosphere which is most suitable for reflection, experimentation, and creativity. This is the atmosphere in which there are four dominant rights of universities: to decide on their own whom to teach, what to teach, how to teach and whom to accept as students.”[5]
On the European continent, the academic freedom and/or the autonomy of institutions of higher education are granted by art. 58 of the Constitution of Slovenia (1991), art. 40 of the Constitution of Lithuania (1992), art. 67 of the Constitution of Croatia (1990), art. 53 of the Constitution of Bulgaria (1991), art. 46 of the Constitution of Macedonia (1991), art. 33 of the Constitution of Italia (“the academic freedom is provided for in institutions of higher education equated to the state ones”), p. 35 of the Constitution of Moldova etc.
In addition, art. 70 of the Constitution of Hungary (1990) states that solution of scientific issues and determination of viability of research is the prerogative of professional people involved in science. Art. 207 of the Constitution of Brazil (1988) contains a provision that guarantees educational, scientific and administrative autonomy for the universities, which is supplemented by their right to freely manage their finances and property. In addition, the universities have to operate on the principle of “indissoluble unity of learning and research”. The Constitution encourages universities to invite foreign lecturers, researchers, and professionals.
In accordance with art. 33 of the Italian Constitution (1947), art, science and teaching are proclaimed independent. In its turn, art. 5 of the Basic Law of Germany (1949) guarantees everyone the right to obtain knowledge from any existing sources. At the same time art, research and teaching shall be free. Art. 70 of German Basic Law guarantees the autonomy of higher educational institutions. The autonomy of the universities is stipulated by art. 70 of the Constitution of Poland (1997), the freedom of scientific activity is specified in art. 23 of the Constitution of Japan (1947) and so on.
The current Basic Law of Ukraine directly does not provide for the autonomy of universities and/or academic freedom. The national treatment of this issue is based on the provisions of art. 10 of the European Convention on Human Rights and Fundamental Freedoms (1950), which contains over a dozen restrictions on the realization of the freedom of intellectual self-expression. Almost all of them were included into art. 34 of the current Constitution of Ukraine. However, this does not mean that the Ukrainian regulation of intellectual freedom is accredited by the European standards.
Firstly, in Ukraine they do not apply the three-part test, under which the limitation of the exercise of fundamental freedoms can take place only under the law and only when it meets a legitimate purpose and is necessary in a democratic society. Secondly, the Constitution of Ukraine lacks a very important provision present in the EU countries specifying that all limitations of the freedom of speech stipulated by national constitutions cannot be applied in the fields of literature, science, and art. This norm is included in the Charter of Fundamental Rights of the European Union (2000), and is sometimes directly reproduced at the national level. Thirdly, the Constitution of Ukraine does not provide for the right of an individual to receive and disseminate information regardless of frontiers as it is specified in art. 10 of the European Convention (1950). In addition, the classical European and American understanding of academic freedom and university autonomy prohibits the police to enter the educational campus, which in Ukraine cannot be even discussed.
Summarizing this range of problems, John Stuart Mill once wrote: “The main danger of our time consists in the fact that so few people have the courage to be eccentric.” It was actually a matter of the threat of unification of Western education and culture. Later Vaclav Havel called educational unification “the criminalization of the principle of plurality”. In the Soviet Union such unification was carried out for decades. According to Jean Cocteau, “the ants’ ideology like the Russian one” considered ideological diversity a crime. As a result, it so happened that by putting their countries out of the value game box, the communist leaders created a “closed system with specific principles”[6].
Currently, the most resolute and consistent in protecting academic freedom and university autonomy is the constitutional doctrine and practice of the United States. Firstly, it a priori does not recognize a possible existence of “erroneous ideas”. According to the U.S. Supreme Court, the truth can be achieved only on the market of “free selling ideas” in competitive environment[7]. Secondly, educational institutions under any circumstances must avoid becoming “enclaves of totalitarianism”, and their administrations must not establish absolute control over the students[8]. Thirdly, the free education is threatened with pressure even from such factors as the “national unity”, “patriotism” or “saluting the flag”[9].
The United States, wrote Francis Fukuyama, succeeded due to their dedication to the ethics irrational, which implies a serious demand of protection of all unpredictable and spontaneous in business and science. As far the democracy is not so much a creative as selective talent, the ordinary citizens can be successful, as a rule, only within the limits of environment created by bright intellect of their national elites. The logical development of this thesis means that if the democracy in Ukraine is not preceded by the university or academic freedom, our citizens will go on consuming intellectual secondhand. There is also no doubt that this threat should be a serious point in the current rating of Ukrainian constitutional issues that require resolution.
Direct democracy
The Assembly proposes to determine at the constitutional level a range of issues for which a referendum is a must, as well as issues on which a referendum cannot be held. Severally the concept offers “to make a list of spheres for regulation by law, on which a referendum cannot be held on popular initiative”.
It is known that on November 6, 2012 the Verkhovna Rada of Ukraine adopted the Law “On national referendum”. Then became ineffective the previous Law “On the all-Ukrainian and local referendums” (1991), which significantly differed from the Constitution. Under the new law both the new redaction of the Constitution of Ukraine, and amendments thereto may become a subject of the referendum. The referendum can also cancel any law amending the Constitution of Ukraine. In the same way, it is possible to adopt and cancel common laws of Ukraine, as well as amendments to them (except laws on taxes, budget, and amnesty).
All of it created additional incentives for the activity of Constitutional Assembly. Before the adoption of the law on referendum its proposals about amendments to the Constitution directly depended on the Verkhovna Rada. And now the adoption of a renewed constitution can occur without the participation of people’s deputies, i.e. only by the will of the people and on their own initiative. No wonder that Ukrainian politicians perceive the law “On national referendum” in different ways.
In addition, the adoption of the law on the all-Ukrainian referendum significantly deepened the meaning of Article 5 of the current Constitution on the sovereignty of people. As stated in the third part of this article, “the right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the state, its agencies or officials.” Given the legal meaning of this provision, only a referendum (in addition to the requirements of Chapter XIII of the current Constitution) should be held to change all the rules of the Basic Law, which are legally involved in the determination of the parameters of the constitutional order in Ukraine. Simply put, the law allows for a referendum to abolish the amendments to the Basic Law submitted for consideration by the Verkhovna Rada of Ukraine, but really irrelevant to the interests of the Ukrainian people. It is possible to say that this law is a reasonable current domestic analogue of the people's right to democratic uprising present in the Western constitutionalism.
One of the manifestations of acute reaction to the law “On national referendum” was a reproach to the parliament for its refusal to exercise its own prerogatives. And only a few critics of the law understood that the process of amending the Constitution of Ukraine should not be limited to the thirteenth chapter and the rules defined by Article 5 of the Basic Law, which still did not have a proper specification. If the meaning of this provision is interpreted in strict accordance with its purpose (teleological interpretation), all laws that directly affect the determination of the essential characteristics of the constitutional order of Ukraine shall be passed only by nationwide vote. The Basic Law does not accidentally use in Article 5 the word “exclusively”, stressing in this way that the change of the elements of the constitutional order requires not an approval of these changes (after their initial parliamentary support) at a referendum, but a direct--without the mediation of the Verkhovna Rada--popular vote. For example, in this manner it would be good to change in 2004 the Ukrainian form of government.
So, the Law of Ukraine “On National Referendum” fills with the meaning the notion of guarantees against the usurpation of national sovereignty by the state. Obviously, the usurper of public authority may be not only a legislative but also executive and judiciary branches, not to mention the president. That is the constitutional referendum may be considered the only legitimate means in Ukraine of controlling government revolt against the interests of the people.
Unfortunately, the latest version of the Concept provides for the prohibition of referendums initiated by people, which might highlight any “positive” (in the sense: not yet resolved) questions. According to the members of the working group of the Assembly, the referendums initiated by people shall only be used to adjust existing laws. That is such referendums can only exclude and not include into the legal field of Ukraine new norms at the level of law. Professor Volodymyr Shapoval supported by a working group of the Constitutional Assembly went even further in his political and legal aspirations. He believes that the referendums initiated by people shall be held only on questions predefined by the Constitution of Ukraine…
Parliament (Verkhovna Rada of Ukraine)
The concept advises to reduce immunity of the people’s deputies simultaneously improving the mechanism of their responsibility for adopted decisions. The proposed novels included strengthening parliamentary control over the executive branch, introduction of interpellation (holding hearings on the activities of the Cabinet of Ministers of Ukraine), recognition of the possibility of voluntary dissolution (two-thirds of votes) of the Parliament, introduction of “public” legislative initiative, making the Cabinet of Ministers the only body responsible for putting forward a draft budget resolution, introduction of division of laws into constitutional and ordinary ones.
The Constitutional Assembly revitalized the idea (as yet unsupported) of a bicameral Legislative Assembly. The Upper House (such as the Chamber of Regions or Senate), which will be a political representation of 24 oblasts, Autonomous Republic of Crimea and the separate capital district, Kyiv city, should be directly elected by the population or respective radas: oblast, Verkhovna Rada of the Autonomous Republic of Crimea and Kyiv City. The senators may include ex officio every former president of Ukraine, unless he was impeached. The Lower House of 300 deputies might be elected by adult citizens of Ukraine on the basis of equal, direct, universal and secret suffrage. The introduction of a bicameral parliament might reduce conflicts in the governance mechanism. Not canceling cultural differences between the east and west of the country, it would boost harmonious development, contribute to regional development, step up the authority of the local self-government, increase the representational functions of Parliament, and support the political course of Ukraine to join the European Union. In general, the existence of a bicameral parliament in a unitary country is no exception to the rule. Such parliaments exist in Poland, Italy, Japan, Spain, the Netherlands, Romania, France, Croatia, the Czech Republic, the Philippines and Ireland. Bicameral are the majority of legislative Assemblies in old democracies regardless of form of governance (Great Britain, France, Italy, USA, and Switzerland). The upper and lower chambers usually differ in quantitative composition, order of formation, competence, status and so on. The most often the lower chambers are elected by population in general equal and direct elections. With them the ideas of popular representation, rule of the legislature with the power to approve the budget and other important laws are connected.
In countries with bicameral parliaments the concurrence to appoint the government is usually given (excluding the U.S.) by lower (as in Italy) or by both upper and lower chambers. In the majority of such parliaments the chambers have different status. The Ukrainian Concept could be guided by the same principle. For the most part the bicameral parliaments make a more efficient system of popular representation than unicameral ones: they represent the interests of regions in more efficient way; they correct legislative mistakes much easier and adopt more balanced decisions.
President of Ukraine
The section of the Concept dedicated to the status of the President of Ukraine reflects the conflicting aspirations of the members of Constitutional Assembly to establish, on the one hand, the “appropriate legal framework for balanced and effective functioning of the mixed form of governance”, and, on the other hand, to strengthen the role of the state leader “ensuring stable functioning of the state mechanism”. For this purpose the members propose … “to allow the President of Ukraine to realize the functions of political arbitration”. The analysis of this part of the Concept shows that it is--as it was in the past—empowers the President of Ukraine to concurrently execute multiple functions.
Under the current Constitution, the president is the head of state, guarantor of state sovereignty and territorial integrity of Ukraine, observance of national Constitution, as well as the rights and freedoms of an individual and citizen. He, as is clear from the text of his oath, must “with all his doings protect the sovereignty and independence of Ukraine, take care of the good of the Motherland and the welfare of the Ukrainian people, protect civil rights and liberties, abide by the Constitution and laws of Ukraine, perform his duties for the benefit of all fellow citizens, and enhance the prestige of Ukraine in the world.” By comparison, the U.S. President entering upon his duties swears only that “he will responsibly fulfill his duties as the President of the United States and in every possible way preserve, protect and defend the Constitution of the United States.”
The stylistic difference of these texts is caused, of course, by lexical features of Ukrainian or English languages. This is a significant difference between the North American and Ukrainian constitutional paradigms. In the first case we see the civilization of the universal market type where everything “follows its customary routine” and real law-based state, where the president's role is reduced to maintaining appropriate procedures (“how” as opposed to “what”); it reminds of croupier in a national casino, which controls the rules of the game and not the size of winnings and betting. The second refers to the fundamentally different political and legal stereotype when the state led by its head is the mover of everything, all existing and potential developments. We see the president-demiurge that completely determines and controls the entire political process.
The Concept declares the transformation of the constitutional status of the President toward expansion of her/his arbitration functions. And it would rather into details and explain in what way the transformation of the president’s role from carrying out material to more procedural power would take place.
As for the rules of impeachment of the President, crime is named as a sole cause of her/his forced removal from office. However, the crimes differ essentially depending on whether they are committed intentionally or through negligence. In addition, the crime is not a typical temptation for a president or a characteristic behavior pattern: significantly more risky for the society is the commitment by the president of gross violations of the Constitution. If the Constitutional Assembly agreed with this approach, the basic list might be included in the body of the Constitution. The optional violations of the Basic Law should be referred to the Constitutional Court.
The Cabinet of Ministers of Ukraine, other executive bodies
The special attention should be paid to a cursory mention in the Concept of the need for “singling out law enforcement agencies intended to protect the life, health, rights and freedoms of a person, ensure his/her inviolability and safety, protection of national and public safety, protection of the interests of society and the state against illegal assault, and prevention and combating of crime.” Strange as it may seem, the Concept suggests no details of this “singling out”. It offers only to secure at the constitutional level the principle of depoliticization and non-partisanship of the personnel of these bodies and define by law the parameters permitted-for-use “coercive measures”.
In fact, the Concept and later the Constitution should rather secure a full-scale parliamentary control of law enforcement agencies requiring the definition of law rather than by presidential decree or decision of the government of their status, manning table, functions and funding; providing for the possibility of full parliamentary inquiry, including the prohibition for senior officials to refuse to provide information to parliamentary committees; implement monitoring by human rights organizations of the law enforcement activities; empower Ukrainian Ombudsman to suspend for 48 hours operation or any act (including a minister) of an official of the Ministry of Internal Affairs, penitentiary system and so on.
Judicial authority, office of public prosecutor
The Concept names “strengthening of the guarantees of independence of courts and judges” as the main task of constitutional reform in the judicial sphere; however, it would be worthwhile to start with improving education and training (“intelligence”) of the corps of judges of Ukraine. It is rather a question of overall quality of “human capital” in the domestic legal sphere. The lack of trust in the courts and judges is also associated with a lack of respect for human dignity in general. The law students at Ukrainian universities even of the fourth (highest) level of accreditation are trained in an atmosphere of hard realism and pragmatism. This is not education, but rather a sort of “training for a community”. They simply have neither time nor place for everything intellectually challenging, high and postmodern.
According to the authors of the Concept, if the judges are appointed to the post by the President of Ukraine upon submission of the revised High Council for Justice, it will reduce their political bias and ideological dependence. To achieve this goal the appointed judge is to be a professional of more mature age (30 years) who has greater work experience (5 years). However, informal contacts with judges show that many of them finds the key issue of judicial reform not better education or age limit, but establishment of such an order of filling the position of the president of the court of justice, which provides for the secret rating voting of his candidacy by the judges. If the president of the court of justice is chosen by voting by secret ballot by his fellow judges, it will improve not only the moral and ethical climate. But if the president of the court of justice is appointed by upper administration, it will be impossible to modernize the courts.
As for the status of the public prosecutor, the Concept offers no clear solution yet. The office of public prosecutor is traditionally tied to the protection of the centralized state interest. Empowered to institute, investigate and recommit criminal cases to court, the office of public prosecutor was always in Ukraine an administrative lash. Now, at the intuitive level an approach comes forth through which prosecutors would have to monitor the compliance with the Constitution and laws of Ukraine only in those state bodies and structures, in which people may find them in the most risky and socially weakened, dependent situation without real freedom of choice of behavior.
It is, above all, the matter of the structures of militia (police) and Security Service of Ukraine, branched sphere of penal institutions, units of the Armed Forces of Ukraine and other military or paramilitary formations. Perhaps it would be worthwhile to entrust the Procuracy of Ukraine with the tasks as follows: a) criminal proceedings against a person, arraignment and indictment; b) public prosecutor in court; c) representation of public interest in litigations as established by law, d) supervision of the observance of laws by bodies that conduct detective and search activity, inquiry and pre-trial investigation, e) supervision of the observance of laws in the execution of judicial decisions in criminal cases, as well as the application of other measures of coercion related to the restraint of human liberty; f) supervision of the observance by the executive bodies, officers and employees, other public authorities of the laws on human rights and fundamental freedoms; g) supervision of the observance of human rights and fundamental freedoms in the units of the Armed Forces of Ukraine and other military and armed formations.
In accordance with their legal and actual status the units of the Armed Forces of Ukraine and other military and armed formations can resort to violence, physical, mental and ideological coercion and pressure under conditions of restricted individual freedom in an uncontrolled way. This primarily applies to citizens who undergo compulsory or contract military service.
Territorial division, Autonomous Republic of Crimea, local self-government
The questions of territorial division of Ukraine considered in the Concept boil down to a conclusion that the present division in Ukraine is too small-scale, that there is still no law on the territorial division and about Sevastopol, and the legal procedure for resolving issues of administrative and territorial division is not determined yet. The Concept suggests extending the jurisdiction of local communities and their associations to cover the land of the settlements and adjoining land for the development of economic, social, transport and other infrastructure. It also proposes to create a new administrative and territorial unit−the community after which the territorial division of Ukraine shall be presented at three levels: regional (Autonomous Republic of Crimea, oblasts, cities of Kyiv and Sevastopol); about five times enlarged (!) regions; and communities. It also provides for the formation of specialized (medical, social, educational, statistical and other) districts. In addition to that the Concept suggests recognizing officially that “the system of governance in the Autonomous Republic of Crimea is an independent subsystem of public authorities”.
The proposals of the Concept on modernizing local self-government in most cases (except for radical consolidation of regions and recognition of communities as territorial units) are acceptable. Urgent in Ukraine is to bring constitutional and legal framework of local self-government in compliance with the requirements of the Council of Europe and European Union: the European Charter of Local Self-Government (1985) and Protocols thereto. Consolidation at the constitutional level also requires the principle of complete authority of local self-government, recognition of the right of local radas to determine the system and structure of their executive bodies, total number of staff, as well as expenditures for their upkeep within the limits of the local budget.
The Constitutional Court of Ukraine
According to the Concept, the status of the Constitutional Court of Ukraine has not undergone significant changes. The novels apply only to certain aspects of the activity of the Court and boil down to the new order of appointment of constitutional judges to their positions, revocation of the right of the Constitutional Court of Ukraine to interpret the laws of Ukraine, charging the Court to verify the constitutionality of bills submitted to a national referendum.
Changing the order of appointment of judges to the position involves the transfer of this function to the President of Ukraine. Candidates for the position of a judge must receive a recommendation from the Congress of Judges of Ukraine, National Academy of Juridical Sciences and the Ministry of Justice of Ukraine. If Ukraine had a bicameral parliament, the President could appoint judges to the constitutional position on submission by the upper chamber. A similar procedure for the appointment of judges is operating in the United States. Experience shows that when the judges simultaneously are empowered by two branches of power, this makes the Court relatively independent politically. Even more important is that consideration of nominees for judges in the upper chamber makes the process of selecting judges more demanding and public (transparent).
But the most important for Ukraine is a general rethinking of the role of the single body of constitutional jurisdiction. Indeed, in contrast to general courts designed mainly to protect law and order, the constitutional courts must protect the freedom of the sovereign people. Taking into account the traditional laconism of constitutional texts, the protection of civil liberties requires from the judges the highest level of education and culture. Because it is much harder and more responsible job to defend freedom, than to defend positive conventionalism of everyday routine. In the law-based state, the constitution is an abstract controller that stands above power personified in human beings. Society is dynamic and successful mainly because it has a real opportunity to play its creative forces and ambitions. And constitutional judges are expected to ensure the free play of human passions and energies.
P.S.
Later (after September 15, 2013) the Constitutional Assembly worked on the draft Concept of meetings in the format of a specially created working group comprising 10 to 12 key (in terms of the professional hierarchy in the Assembly) persons and about the same number of experts but without the right to vote. The Working Group reduced the original text of the Concept by 40-50% having redacted most of its provisions. The updated concept plan had to be reconsidered and finally approved by the Assembly on December 6, 2013, but due to the emergence of Ukrainian “Euromaidans” and, as a result, “the uncertainty of the political situation in the country” (Kravchuk) the implementation of the plan was suspended indefinitely.
[1] Prepared by Vsevolod Rechitsky , UHHRU representative in the Constitutional Assembly of Ukraine, constitutional expert of the KHPG. The abridged version, see: Rechytsky V. Constitution for the Dreamland / / Krytyka , nos. 7-8 (189-190), July-August 2013. - P. 10-15.
[2] A brief review of these reports see: Rechytsky V. The constitutional process in Ukraine in 2012 / / Human Rights in Ukraine - 2012. Report. - Kharkiv Human Rights. 2013. - P.
[3] Malinowski B. Freedom and Civilization. - London: George Allen, 1947. - P. 25, 170.
[4] Einstein A. Out of My Later Years. - London: Thames and Hudson, 1950. - P. 19.
[5] Civil Rights Decisions of the United States Supreme Court. The 20th century. - San Diego, California: Excellent Books, 1994. - P. 221-222.
[6] Jean Cocteau. In three volumes with pictures of the author. Vol. 1 - Moscow: Agraf, 2001. - P. 238. (In Russian)
[7] Freedom of the Press Decisions of the United States Supreme Court. - San Diego, California: Excellent Books, 1996. - P. 58.
[8] Freedom of Speech Decisions of the United States Supreme Court. - San Diego, California: Excellent Books, 1996. - P. 154-156.
[9] Freedom of Speech Decisions of the United States Supreme Court. - San Diego, California: Excellent Books, 1996. - P. 74-75.