Ukrainian constitutional process in 2014
Ukrainian constitutional process in 2014 began a series of constitutional transformations aimed at legal regulation of the new political reality that had emerged as a result of the revolutionary events under the title Euromaidan.
The juridical means of constitutional transformation include primarily such documents as the Law of Ukraine “On revalidation of certain provisions of the Constitution of Ukraine” of February 21, 2014; Resolution of the Verkhovna Rada of Ukraine “On the text of the Constitution of Ukraine in redaction of June 28, 1996 with amendments and supplements introduced by the laws of Ukraine of 8 December 2004 No. 2222-IV, February 1, 2011 No. 2952- VI, September 19, 2013 No. 586-VII”; Resolution of the Verkhovna Rada of Ukraine “On the dissociation of the President of Ukraine from fulfillment of constitutional powers and appointment of early presidential elections in Ukraine” dated February 22, 2014; Resolution of the Verkhovna Rada of Ukraine “On vesting the Head of the Verkhovna Rada of Ukraine with the duties of the President of Ukraine in accordance with Article 112 of the Constitution of Ukraine” of February 23, 2014.
Subsequently, the constitutional process was extended by an official act of submission to the Verkhovna Rada of Ukraine by President of Ukraine Poroshenko of the bill “On Amendments to the Constitution of Ukraine (concerning the authority of state bodies and agencies of local self-government)” No. 4178 of 26 June 2014. It is advisable to consider these legal steps in chronological order.
Law of Ukraine
“On revalidation of certain provisions of the Constitution of Ukraine”
The very title of the Law “On revalidation of certain provisions of the Constitution of Ukraine” dated February 21, 2014 is the first thing to consider at firsthand view of it. In particular, the phrase “revalidation of the Constitution…” is functionally loaded in the wrong direction.
In fact, Article 85, which contains the list of the main plenary powers of the Parliament, of the Constitution of Ukraine valid at the time of adoption of this Law does not provide for “revalidation <...> of the Constitution of Ukraine” by a single parliamentary vote for the bill. As stated in Article 85 of the Basic Law, the Verkhovna Rada (in terms of possible modifications of the Constitution) is empowered to introduce “amendments to the Constitution of Ukraine within the limits and by the procedure envisaged by Chapter XIII of this Constitution.”
In addition, as stated in Art. 5 of the Constitution of Ukraine, “the right to determine and change the constitutional order in Ukraine belongs exclusively (emphasis is mine—V. R.) to the people and shall not be usurped by the State, its bodies or officials.” The latter, as the common sense suggests, means that if the changes to the Constitution of Ukraine infringe on elements of the constitutional system, they should be approved exclusively by the people, that is by a national referendum without any (except for the institutional one) participation of the state in its conduct.
Since the change of the form of government in the country is both the change of an element of the constitutional order, Ukraine’s transition from the model of presidential republic to the model of parliamentary republic should have been carried out only by direct assent of Ukrainian people. Simply put, according to the Constitution the national referendum only can introduce a parliamentary republic in Ukraine.
This thesis is to be read fundamental in any circumstances. As a legal factor, it was valid since the initial adoption of the Constitution of Ukraine on June 28, 1996 and remains in force today. This fact alone would suffice for the Constitutional Court to disagree with the constitutional (political) reform in 2004. As you know, the infamous reform was voted in package with an ordinary law and Resolution of the Verkhovna Rada, which led to the reverse control effect when the content of current regulations directly affected the content of the Constitution of Ukraine. In general, only a mediocre level of expert culture in Ukraine still allows supporting the legal topic of “betrayal” of the Constitutional Court of Ukraine.
However, it is essentially more serious. According to the sociological survey, the population of Ukraine continuously supports the preservation of one-man rule of the president elected by the people. This situation corresponds to Ukrainian normative code as a set of fundamental principles and norms that permeate the activity of the domestic political civilization as its organic mold, repetitive design.
The disposition of Ukrainians to Hetmanate may be seen in not only the With Fire and Sword by H. Sienkiewicz, but in the Constitution of Pylyp Orlyk in 1710, History of the Rus by H. Konyskyi, and race for power by P. Skoropadskyi in the early twentieth century. On the contrary, the fact that the parliamentary republic is little-suited for Ukraine can be illustrated by the Central Rada headed by M. Hrushevskyi, Directorate headed by S. Petliura, and the rule of President V. Yushchenko. The Ukrainian parliamentary republic remains a situational fragile entity. As a long-term strategy, it shows only its ineffectiveness. The opposition basis for denying the Ukrainian parliamentarism included in its time such factors as the well-known disposition of Ukrainians to Haidamachchyna (O. Shulgin), rule of otamans (D. Skoropadskyi), which shows the dominance of political “Eros” over “Logos” (I. Lysiak-Rudnytskyi).
Overall, the return of Ukraine to the model of a parliamentary republic in 2004 looked not only unconstitutional, but also illegitimate, unjustified in terms of the needs of the political culture of our people.
Resolution of the Verkhovna Rada of Ukraine
“On the text of the Constitution of Ukraine in redaction of June 28, 1996
with amendments and supplements...”
If the Law of Ukraine “On revalidation of certain provisions of the Constitution of Ukraine” dated February 21, 2014 actually duplicated the content of the Laws of Ukraine of 8 December 2004 No. 2222-IV, of 1 February 2011 No. 2952-VI and of 19 September 2013 No. 586-VII, then the resolution became a kind of collection of additional transitional provisions of this Law.
As stated above, the Law of Ukraine “On revalidation of certain provisions of the Constitution of Ukraine” cannot be considered constitutional by its content and procedure of entry into force. In turn, the Verkhovna Rada Resolution “On the text of the Constitution of Ukraine...” does not withstand legal scrutiny.
The resolution manipulates fragments from different contexts, arguments that only reinforces doubts as to its legitimacy. In particular, it argues that “the statutory powers of the Verkhovna Rada of Ukraine undoubtedly render impossible for any other government bodies or officers to commit any (emphasis is mine — V. R.) act intended to change constitutional norms.” However, in reality such acts are possible, because the Constitution of Ukraine can be modified or its new redaction can be approved by a national referendum, the organization of which requires activity undertaken by public authorities (including the President) outside the parliamentary structures as well.
Moreover, the resolution affirms that “the provisions of the Law of Ukraine “On Amendments to the Constitution of Ukraine” dated December 8, 2004 became an integral part of the Constitution of Ukraine, and the law has exhausted its function.” With this purpose in mind the Resolution refers to the ruling of the Constitutional Court of Ukraine on February 5, 2008 No. 6-y/2008 containing the appropriate wording. However, the relevant decision means only that the Constitutional Court of Ukraine cannot be addressed with proposals to examine the constitutionality of the current Basic Law as a whole and its individual fragments. Such verification the Court may execute only in relation to bills amending the Basic Law of Ukraine.
The politicians and journalists are slow to take in such legal arguments, but that does not mean that the latter do not exist or that they lose their strength. Neither based on outside proposal, nor on its own initiative the Constitutional Court of Ukraine may question the constitutionality of the current formal constitutional text.
Otherwise, we would but admit that the Court is not under, but above the Basic Law of Ukraine, which in a state of law is unacceptable. Therefore, we can undertake to express that the Constitutional Court cannot check the legality (compliance with the Basic Law) any legally valid constitutional content. However, this rule does not mean that the Constitutional Court of Ukraine cannot verify on appropriate representation the legitimacy of the Constitution of Ukraine or its individual fragments.
In jural state, the legitimacy of enactments is ensured by scrupulous observance of procedures for their adoption and implementation. Especially important is the legal procedural form when making the constitution a strategic regulator of domestic political life in the long term. Depending on the procedure of its adoption, the constitutions may be divided into rigid, flexible and mixed. The “rigid” constitutions proceed from the obvious awareness of the fact that the political elites strongly desire to change constitutional texts. To counter this desire the constitution are made “invariable”.
Such considerations are important for the proper understanding of the action logic of the Constitutional Court of Ukraine on abrogation of constitutional reform in 2010. It seems that for the average citizen the Decision of the Constitutional Court of Ukraine on September 30, 2010 No. 20-rp/2010 in the case of compliance with the procedure for amending the Constitution of Ukraine will always mean “the abolition of parliamentary republic in Ukraine.” However, in a strictly legal sense, this decision was only the recognition of illegitimacy (abuse of procedure) of the relevant constitutional text. The proper procedure is a legal guarantee of adequate transition of popular will into the constitutional sense, transformation of popular will into law. If the procedure is abused, we may get, instead of popular will, the will of the state apparatus. This very distortion of the will took place on December 8, 2004 in the assembly hall of the Verkhovna Rada. Moreover, for correct understanding of the juridical meaning of events we should also take into account the following arguments: First, the Constitution was changed in the time of actual emergency. The deputies were in exalted mental mode, which is not suitable for making fateful decisions; second, the voting on constitutional amendments was carried out in package with ordinary legal texts that actually affected the determination of important parameter of the constitutional system of the country.
As stated above, changing the form of government under Article 5 of the Basic Law of Ukraine is changing its constitutional system that can be done only by Ukrainian people through a referendum; third, the latest version of the bill on amendments to the Constitution of Ukraine was not submitted for review to the Constitutional Court of Ukraine.
The critics of abrogation by the Constitutional Court in 2010 of political reform insist that the Court have allegedly challenged the terms of reference of the Verkhovna Rada of Ukraine instead of presenting the matter of abrogation of the reform to parliament. However, this argument is legally incorrect. The Verkhovna Rada is not empowered to make decisions about the legitimacy of its own normative acts. The opposite would be contrary to the principles of separation of powers in Ukraine.
In addition, there was nothing prohibiting returning to parliamentary republic in Ukraine after the Decision of the Constitutional Court on September 30, 2010. Only the national referendum should have been held on this issue. Since this had not been done, Ukraine got another infringement of art. 5 of the Constitution of Ukraine in the form of the Decree of the Verkhovna Rada of Ukraine “On the text of the Constitution of Ukraine…” on February 22, 2014.
In general, the procedural aspects of the constitutional transformations in Ukraine, made in early 2014, show that the Ukrainian elite is just on the threshold of mastering the organic constitutional culture. The Ukrainian state represented by the leaders is still only vaguely aware of the essence of the rule of law.
Resolution of the Verkhovna Rada of Ukraine “On the dissociation of the President of Ukraine from fulfillment of constitutional powers and appointment of early presidential elections in Ukraine”; Resolution of the Verkhovna Rada of Ukraine “On vesting the Chairman of the Verkhovna Rada of Ukraine with function of the President of Ukraine in accordance with Article 112 of the Constitution of Ukraine.”
The Resolution Parliament “On dissociation of the President...” from February 22, 2014 was based on the recognition of the fact that President of Ukraine Viktor Yanukovych illegally dissociated from his constitutional powers which endangered the controllability of the state, territorial integrity and sovereignty of Ukraine, rights and freedoms of its citizens. Being aware of this and proceeding from the paramount necessity, the Verkhovna Rada of Ukraine decided: “The fact is hereby established that the President of Ukraine Viktor Yanukovych in an unconstitutional manner has dissociated from the exercise of constitutional powers and is one who does not fulfill his duties.”
On this basis, in accordance with paragraph 7 of the part one of art. 85 of the Constitution of Ukraine the Parliament scheduled the date of early presidential elections in Ukraine for May 25, 2014. In turn, based on the decision of the Verkhovna Rada “On vesting the Chairman of the Verkhovna Rada of Ukraine with function of the President of Ukraine…” approved on February 23, 2014 Speaker O. Turchynov was vested with function of the Acting President of Ukraine in accordance with Article 112 of the Constitution of Ukraine. The first and second decisions of the parliament entered into effect from the date of adoption on 22 and 23 February 2014, respectively.
To achieve this, we used the reference to Art. 112 of the Basic Law of Ukraine as a parliamentary republic, that is, in the version “restored” by the Law of Ukraine “On revalidation of certain provisions of the Constitution of Ukraine” dated February 21, 2014. At the same time art. 6 of the Law stipulated that it shall enter into force on the day following the day of its publication. Given the fact that the law was officially published in the Holos Ukrayiny only on March 1, 2014, in the Oficiyny Visnyk Ukrayiny on March 11, 2014, and in the Vidomosti Verkhovnoyi Rady Ukrayiny (No. 19) on March 14, 2014 the logical conclusion is that during the period from February 23 to March 2, 2014 Olexandr Turchynov served as President of Ukraine contrary to the norms of the Basic Law. According to the Constitution of Ukraine in force at the time only Prime Minister could execute restricted powers of the Acting President of Ukraine in this period could.
The escape of the President of Ukraine from Kyiv and his leaving his post in a time of emergency led to the de-legitimization of his power. Therefore, the Ukrainian parliament had to use the analogy of law. Because the Basic Law made no provisions for such actions as “escape” or “leaving his post by the President”.
Therefore, the Ukrainian government faces the problem: maybe the best way out during transition is not mutilated constitutional but adopted ad hoc emergency legislation. The latter might have the form of the acts of the “Committee for National Salvation”, “Maidan Rada” and so on. However, the authorities gave preference to the “quasi-constitutional” instrument to overcome problems. No wonder, this decision was and remains extremely vulnerable to criticism.
During the same period, some moral and ethical aspects emerged in the constitutional process in Ukraine. In particular, whether the escape of the President of Ukraine from Kyiv should be considered a “dissociation”? In particular, on March 12, 2014 at the session of the Verkhovna Rada of Ukraine on the rule of law and justice Euromaidan spokesperson S.Shchetinin said that the escape of Yanukovych from the revolt in the capital should not be considered a “dissociation” but overthrow of his government by rebellious people.
It is not easy to treat this fact within the categorical framework of the Constitution of Ukraine. However, the formal Ukrainian constitutionalism should not be confused with organic Ukrainian constitutionalism. It is common knowledge that not every basic law n point of fact can be considered constitutional. Only a law prioritizing (versus state) protection of the interests of civil society can be called real constitution. In the first place, the organic constitution defends not public order but civil liberties. Therefore, it is not a booster, but the strategic limiter of state power. The purpose of the constitution is social progress rather than state-apparatus and bureaucratic discipline. The organic constitution is the guardian of liberty, market, human rights and freedoms. To this end, it establishes the separation of powers, representative government, mechanism of checks and balances and maximizes the freedom of speech.
In this sense, all known modifications of Ukrainian Basic Law can be considered only partial equivalent to organic constitutional model. For example, pursuant to Article 5 of the Constitution 1996 (as a negative perspective) the usurpation of popular sovereignty by the state, its agencies or officials has not logical continuation in the form of the right of Ukrainian people to opposition to dictatorship, civil disobedience or democratic uprising.
The complementary-to-government mechanism of impeachment of the President is also a major drawback of the current constitutional text. On the basis of Art. 105 of the Constitution, the President retains the full powers until the final (third) vote to remove him from office. Until this point, he completely retains the possibility of using to his own advantage Security Service, Foreign Ministry and Armed Forces of Ukraine.
Even formally charged by the Parliament (second phase of impeachment) the President continues to hold his powers. Moreover, the 75% vote of the constitutional composition of parliament as required by the Basic Law for the removal of the President from office is a requisite that renders impeachment unrealistic. It is generally known that even after the death of dozens of people from the bullets of snipers and desertion of V. Yanukovych from Bankova Street, only 73% of the votes of the Verkhovna Rada were in favor of condemning his behavior.
Meanwhile, the history of Euromaidan 2014 fits perfectly into the model of rebellion against tyranny stipulated by laws and constitutions of countries like USA, UK, Germany, Greece, Estonia, Lithuania and others. If we were to analyze the Euromaidan activity based on the approach of the Constitution of Ukraine, the picture would have been substantially different. The motive force of history in this case would have been not people, but … leaders of opposition factions. Instead of popular overthrow of the dictatorship, there is a “dissociation” of the President from constructive dialogue with the opposition.
Preliminary findings and reservations
1. From the legal point of view, the return of the Verkhovna Rada of Ukraine after winning Euromaidan to the Constitution in redaction of 2004 was conducted in violation of the procedures set forth in Section XIII of the Constitution of Ukraine. Therefore, the post-revolutionary law and order would be better called an extraordinary legal regime.
2. In order to understand the logic of decisions of the Constitutional Court of Ukraine regarding any transformations of the Basic Law it is important to distinguish between justification by the Court of legality/illegality, on the one hand, and the legitimacy/illegitimacy, on the other hand, of any constitutional changes or amendments. In the first case, the decision of the Constitutional Court may apply to bills only; in the second case, the legal procedural form inevitably becomes the subject of control, the failure of which may result in actual “dying out” of constitutional matter after the fact.
3. The attempts of the General Prosecutor to express official suspicion to the constitutional judges for their decision-making that are not subject to appeal should be considered as infringement of the principle of legality. The resemblance of the legal position of judges and political preferences of the President is not a crime as such. The decision of the judges who are in tune with the political course of the President cannot be considered corrupt automatically. The attempt of the General Prosecutor’s Office to become an arbitrator in relation to the Constitutional Court is like an intention to eat a patty, which is larger than the stomach. In general, the work of constitutional judges threatened by the official announcement of suspicions completely ruins the independence and impartiality of the Court.
4. The revocation of authority of President of Ukraine Viktor Yanukovych by the Parliament in circumstances of 2014 is justified in terms of the canons of constitutionalism. However, his “dissociation” is politically and legally wrong concept. Yanukovych left his post as a result of the democratic uprising. The logic of the constitutional process in Ukraine should correspond to the logic of events that actually took place. People conducted the revolt against tyranny therefore the Euromaidan cannot be equated with the usurpation of state power. The people cannot be subjects of usurpation of what belongs to it from the beginning.
5. The current Constitution of Ukraine cannot yet be considered an effective limiter of state power. It does not recognize as the highest social value the category of freedom of people and is focused more on public order than on guarantees of the rights and freedoms of man and citizen. Therefore, it remains stagnatory in its essence. Stimulating not so much social progress but bureaucratic order and discipline, the Basic Law significantly stifles creative potential of Ukraine. With this in mind, the new government should focus not on tactical amendments, but on changing vector of constitutional evolution in Ukraine. It should be based on a strong state, responsible government and rule of law. Remembering H. Spenser’s guidelines, we can say that the Constitution of Ukraine should not ask for more, at the same time it should not be allowed to do less.
Continuation of the constitutional process initiated by Petro Poroshenko
Later the Ukrainian constitutional process 2014 came under the influence of presidential initiatives. In particular, on June 26, 2014 the President submitted to the Verkhovna Rada the draft Law of Ukraine “On Amendments to the Constitution of Ukraine (concerning the authority of the state agencies and local self-government)” No. 4178a. The project was registered with the 4th Session of the VII convocation. The bill was initiated by a number of Verkhovna Rada committees led by the Committee on making of the state, regional policy and local self-government. Already on July 2, 2014, the bill was sent on behalf of the President of Ukraine to Venice Commission (the European Commission for Democracy through Law).
The presidential project highlighted the modification of the legal relationship of the head of Ukrainian state with parliament, government and local self-government bodies. In particular, the project of constitutional amendments stipulated as follows (see the updated draft redaction of Art. 83 of the Constitution): “the parliamentary coalition in the Verkhovna Rada of Ukraine in accordance with the Constitution of Ukraine submits proposals to the President of Ukraine on the candidacy of Prime Minister of Ukraine and in accordance with the Constitution of Ukraine makes proposals to the Prime Minister of Ukraine on nominations to the Cabinet of Ministers of Ukraine“.
However, as before, “the parliamentary coalition in the Verkhovna Rada of Ukraine is formed within thirty days from the date of the opening of the first meeting of the Verkhovna Rada of Ukraine held after regular or special elections to the Verkhovna Rada of Ukraine or within thirty days after the termination of the coalition in the Verkhovna Rada of Ukraine.“
According to the draft, the parliamentary coalition still had to act in the Parliament of Ukraine on a regular basis. That is, for the umpteenth time since December 2004, it remained unclear why there should be (be revived) parliamentary coalition when the Cabinet of Ministers is fully formed. Indeed, according to Article 80 of the current Constitution (on the proposals of Poroshenko it was left in the old redaction), the people’s deputies of Ukraine irrespective of their sympathies and antipathies remain free and shall not be held legally liable for the results of voting or for statements made in the parliament and in its bodies.
Moreover, even within the framework of the procedure of the formation of the new government the members of parliamentary coalition remain legally unguided. In fact, ever since 1996, Article 80 of the Basic Law has not provided for any exceptions to its application. Therefore, the only justification for the existence of permanent existence of parliamentary coalition remained its participation in the formation or filling the vacancies in the Cabinet of Ministers of Ukraine. However, if the government id fully staffed, further customary existence of the coalition, as this was illogically prompted by the amendments to the Constitution, loses its juridical meaning. There remains but a limited actuality of some moral and ethical aspects of its presence in the parliamentary system.
On the other hand, as stipulated in Art. 90 of P. Poroshenko’s draft, “The President of Ukraine may terminate ahead of time the powers of the Verkhovna Rada of Ukraine if: 1) within thirty days in a row the parliamentary coalition is not formed in the Verkhovna Rada of Ukraine in accordance with Article 83 of this Constitution.” Formally, this meant that at first the parliament and later the government could be dissolved through the exit of certain critical mass of people’s deputies from the coalition. For example, if the coalition consists of 226 people’s deputies, the breakaway of even one of them will make this critical mass.
It also meant that if within 30 days in a row the Verkhovna Rada of Ukraine fails to restore the compulsory minimum membership in the parliamentary coalition (226 members), its further existence becomes dependent on the political will of the President. It shall depend only on the President whether he will terminate before the appointed time the parliamentary powers or continue to maintain status quo. We can assume that if the President had been the candidate of opposition political forces that constitute a minority in Parliament, then he would have got a lever that could throw into confusion the parliament even in the absence of real government crisis.
The draft of amendments to the Constitution required the presence of coalition in Parliament even when the formation or reformatting of the government is not an order of the day. Then a question is bound to arise: if the coalition must exist outside of government formation, what is the point in it? One might expect that the coalition would support government bills. But, strictly speaking, based on other articles of the Constitution the people’s deputies in this regard remained completely free. In the same way the opposition also remained free in its political preferences.
If the President for his political views had been close to a parliamentary majority, then the requirement of the existence of coalition would have become a tool for an opposition to blackmail the President. This potentially endangers the stability of the constitutional order. In the terms of minor strategy, this procedure also does not promote political stability in everyday life.
If the quantitative composition of the coalition is only a minimally necessary, the draining away of the people’s deputies may result in serious impairment of domestic political superstructure. For example, if the President were opposed to the small minority coalition (in quantitative terms), he might not withstand the temptation to dissolve the parliament within 30 days after any coalition collapse. In the case when a small majority coalition were politically close to the President, the opposition would try and persuade the people’s deputies to quit it. In this case, the political blackmail might be less effective, because, according to the amendments, the President may, but is not obliged to dissolve parliament because of situational collapse of the coalition ranks.
Anyway, the idea of a permanent coalition promoted by the President’s draft did not look constructive. It would be better to empower the President to dissolve parliament only if the latter fails to form or staff a government within 30 days. Moreover, it remained unclear how to establish the presence or absence of coalition without a vote of its members “for” or “against” candidates for the posts of ministers or prime minister?
According to art. 85 of the draft, the Parliament had to consent to the President’s appointment of the Chairman of the Security Service of Ukraine, Head of the State Bureau of Investigation, and Prosecutor General of Ukraine. In this case, the Parliament could later dismiss the Prosecutor General. Other officials on this list had to be dismissed by the President. Given that the Parliament had to appoint the Prime Minister on submission by the President of Ukraine, which, in turn, had to choose a candidate following “the suggestion of the parliamentary coalition in the Verkhovna Rada of Ukraine”, it becomes clear that there was no weakening of the power of the president according to the model declared by the constitution.
In its turn, although the candidates for the post of the Minister of Foreign Affairs and Minister of Defense had to be appointed (according to the draft) by Verkhovna Rada of Ukraine on submission of the Prime Minister, the formal submission had to get approval of the President. Without the participation of the Parliament the President had to appoint and dismiss the Head of the Foreign Intelligence Service of Ukraine.
The said list should also include the duty of the President to appoint (without the submission of the Cabinet of Ministers) and dismiss all representatives of the president in the areas and regions of Ukraine. Obviously, it was not about the weakening of the executive chain of governance.
The President was empowered to terminate powers of the Verkhovna Rada of the Autonomous Republic of Crimea, as well as any agency of local self-government, if the Constitutional Court of Ukraine established that any of them had violated the Constitution by a decisions (even only one).
The President might easily terminate the powers of the representative body of the Autonomous Republic of Crimea or any local body of self-government with the support of the Constitutional Court. At the same time, the President had not only to appoint six judges of the Constitutional Court, but reserved the right to dismiss them at any time. This pattern of relationship of the President and the Constitutional Court undermined the principle of independence of the judges of the Constitutional Court and made it extremely vulnerable to the interference of local self-government.
According to the draft of constitutional amendments, the President looked to the Ukrainian society not so much as an intellectual, political authority and leader of the nation, but rather as the commander, member of the top brass, modern hetman. But if so, then how would the civil component of the president’s understanding of the functions of the constitution and constitutionalism look like?
At the political level Poroshenko has repeatedly declared his commitment to strengthening democratic principles in governance, idea of decentralization of power, clear separation of public affairs, on the one hand, and affairs of civil society, on the other. The president has repeatedly stressed on the need to pay more public attention and render support to the regions negating the feasibility of federalism in Ukraine.
The Ukrainian state has long required to devote more attention to the provinces at the strategic level. On the other hand, the mere declaration of regional interests, modernization of only local network structures of self-government would not suffice. The regions of Ukraine should be constitutionally backed at the highest level of governance (parliamentary, governmental).
If the idea of a federal Ukraine is unacceptable for the President, but he tends to strengthen the constitutional guarantees of regional interests, Ukraine wouldn’t do without the two-chamber parliament. it is common knowledge that two-chamber parliaments are a characteristic feature not only of federal countries. They successfully function in many unitary countries. The parliaments of France, Spain, Italy, Poland, Netherlands, Croatia, Japan and so on are two-chamber. This kind of design provides for reliable representation of the provinces combining supra-party senatorial conservatism with the common sense of the lower house.
As for the president’s idea of modernization of Ukrainian self-government, this issue did not receive adequate detailed legal elaboration. First, according to the project, the local governments would receive not strengthening but weakening of their influence upon the state through the presidential representatives. If now an oblast or regional Rada may depose heads of local state administrations by two thirds of their votes, there would be no such threat for representatives of the president. Second, the representatives of the president would lose the collegiate style in relations with the executive branch, which is now enjoyed by the heads of state administrations due to their appointment by the President on the advice of the Cabinet of Ministers.
Under the project, the local representatives of the President would have to become “clean” creatures of the head of the state. That is, they would have so much to perform representative functions of the central and state interests as extraordinary personal messengers (commissioners) of the head of Ukrainian state.
Potentially it threatened with strengthening of the infamous “dualism” in the executive branch. It should be recognized that the executive dual governance in Ukraine has already become both systematic and structural. Suffice it to mention the competition of political ambitions of Prime Minister Yuliya Tymoshenko and President Viktor Yushchenko at the domestic level. The latter even forbade the heads of state administrations to come to Kyiv to participate in governmental arrangements or consultations with the Prime Minister. No less evident was the conflict between the National Security and Defense Council of Ukraine and the Cabinet of Ministers as a reflection of executive dualism.
If the Ukrainian president expected to personify the power of executive branch, it obliged him to work in unison with the government. If he wanted to be more a symbol of national cohesion, then his powers (according to the project) looked to be overburdened with the specifics. taking into account the list of proposed powers in the project, the President meant to be something much more than just a symbol of the nation endowed with representative functions. In any case, the constitutional mechanism of checks and balances in relation to the President obtained special meaning and content.
As for the improvement of the administrative-territorial structure of Ukraine and modernization of self-government system, in the presidential project they looked rather superficial. It remained unclear why the presidential bill, while recognizing the possibility of communities in villages, towns and cities (even cities millionaires), refused to see them at the oblast and regional levels. For the community is a substantive embodiment of political integration of people (sense of togetherness, feeling of mutual help) at the local level. If the sense of togetherness emerges in a given territory and gets fixed, the local communities may strike root. If there are public authorities of oblast and regional level in Ukraine, it may mean that in the oblasts and regions there are corresponding togetherness of population and collective identity.
Therefore, one variant of the constitutional reform of the President could be an approach by which the Constitution would recognize the existence of communities at the village, settlement, town, regional and oblast levels. Who dares today to deny the fact that the population of Luhansk and Donetsk oblasts represent an enclave of exclusive tension and content?
If you take a more spacious approach to the Presidential constitutional project, it may be seen as a set of legal tactical means intended to achieving strategic public goals, objectives. So almost immediately after reading it arises the question: can such steps really bring about fundamental and positive changes in Ukraine? In fact, positive changes can be made only with the help of adequate quality means.
today The Ukrainian constitutionalism is expected to implement effective common rules of the game guaranteed by renewed judiciary. This might lead to economic liberalization and market expansion in Ukraine, prompt recognition and reward of gifted persons, easing and speeding up of all social transactions (not just business ones), overcoming of hypocrisy and demagogy in ensuring human rights and freedoms. The Constitution list of highest social values also needs revision.
Today the Ukrainian law enforcers and armed forces not only protect and secure, but really defend the independence, sovereignty and territorial integrity of Ukraine. Every day they sacrifice their lives and health for this. Therefore it is now evident that the highest social value in Ukraine is not life and health of human beings (Art. 3 of the Basic Law) but freedom and liberty of Ukrainian people. Unfortunately, the constitutional initiatives of P. Poroshenko contained nothing about the matter.
As you know, on October 27, 2014, the Venice Commission published its opinion about the project of constitutional amendments of P.Poroshenko in English. While acknowledging some positive traits of the document, the Commission noted in general that the proposed novels contribute not to weakening but to strengthening of the constitutional positions of the President with respect to the executive branch and local self-government. It also considers a significant drawback the non-transparent and closed-to-public-examination procedure of design of the document. Perhaps, it is because of this criticism the bill was officially revoked by the President on November 27, 2014.
Vsevolod Rechytskyi, constitutional expert, KHPG.