Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

Preparing for the Constitution Day. The main conclusion

Mykola TOMENKO: “The actual character and organization of our government and society still has not been brought in line with the spirit and letter of the Basic Law”
27 June, 2017 - 11:32
Photo by Borys KORPUSENKO

Have we learned to live according to the Constitution? This question has not lost its relevance throughout many years of Ukraine’s independence. This nation’s basic act will turn 21 on June 28. Were it a person, they would be old enough to think about their behavior and realize what they are entitled to do, and what actions are, on the contrary, prohibited by law. However, this country has major issues with both the culture of adherence to the Constitution and its inviolability, since each government is trying to amend the Basic Law as it sees fit. Even now, the president has a constitutional commission at work, which is drafting amendments to the Constitution. What is the problem? We talked to Doctor of Political Science, MP of the 4th through 8th convocations of the Verkhovna Rada, public figure Mykola Tomenko.

How would you characterize the traditions of Ukrainian constitutionalism, taking into account such historical documents as Yaroslav the Wise’s Ruska Pravda of the 11th-12th centuries, the Constitution of Pylyp Orlyk (1710), acts of that nature passed under the Ukrainian People’s Republic (UNR), and the Ukrainian State in the early 20th century?

“The defining feature of Ukrainian constitutionalism is its European character. Moreover, we did not merely work in the context of the European tradition – we were among its creators. For example, the version of Ruska Pravda passed by Yaroslav the Wise’s sons introduced the abolition of blood vengeance or its replacement by blood price, which overall preceded similar changes in many European countries. That is, we were in the forefront of the civilized approach to the issue. In general, caring about the rule of law and respect for human rights were distinctive features of our first great state, which Mykhailo Hrushevsky called Rus’-Ukraine. When reading Mykola Kostomarov’s essay ‘Two Russian Nationalities,’ one clearly sees the author showing the difference between Muscovy, where neither law, nor legislation, nor respect for fellow human operated, and Kyiv as the capital of a state where people of every race and creed felt at peace and protected. So, from the outset, we shaped European traditions, it is just that we were separated from them by force at times.

Photo by Mykola TYMCHENKO, The Day

“Now to my second point. We have always worked in parallel on, so to speak, two constitutions: the ideological one and the legal one. As we were fighting for our independence, we felt it highly important to spell out the basic ideological matters; accordingly, every constitutional document included a portion justifying our historical right to self-determination and a state of our own. This line of thought extends from the Constitution of Pylyp Orlyk to the current Constitution of Ukraine, where the preamble and the first section are ideological in character.

“Let me talk about the type of political regime now. Obviously, all constitutional documents – perhaps with the exception of the quasi-constitutions of the Soviet period and the documents drafted by underground organizations or during periods of liberation struggle for the Ukrainian state, because there was no place for democracy there – all of them have included a statement of adherence to the democratic type of political regime. This has been so since democracy has always been a value for Ukrainians, starting with the Princely Age, when, for example, a prince had to hold a council meeting before setting out on a campaign, not to mention the Cossack Age, etc.

“Speaking about the form of government, there is a distinction here between the Greater (Central-Eastern) and Western Ukraine. The Dnieper Ukraine has always favored the parliamentary model, as various Cossack or central councils had broad powers and were represented by a leader. The UNR period offers a classic example of the parliamentary model, since Hrushevsky was the head of state, but he was elected to that position by the legislature. Western Ukraine has favored the presidential republic more. But the fact remains that today, under all circumstances, Ukrainians believe the direct election of president or their right to elect the head of state to be almost a natural right. This gives me reason to assert that a classical parliamentary model will be very uneasily perceived by our society, since under such models, it is not the people, but a representative body which elects the president.

JUNE 28, 1996. KYIV / UKRINFORM photo


“Now to the system of government. Of course, the unitary state is our choice. When Vladimir Putin or Viktor Medvedchuk are talking about a federal system today, it is manipulation and distortion of facts. In the time of Mykhailo Drahomanov or Hrushevsky, the federation was discussed as an evolutionary way of Ukraine’s secession from the Russian Empire. When it came to the formation of our own state, analyzing Hrushevsky’s works shows that he envisioned no political powers, only self-governing powers for the historical lands within Ukraine. Hrushevsky’s projects dealt with the administrative-territorial division, not a federal system. That is, we have always strived for a unitary model with broad local self-government, based on local communities.

“Another point is the role of the military. The key conclusion is the importance of a highly professional and socially protected military. The most illustrative example here is the Constitution of Pylyp Orlyk. It was adopted after a tragic defeat in the Battle of Poltava in 1709, and so it reflected an attempt to answer why did they actually lose. That is, it included a number of articles dealing with the social protection of families whose members fought for the Ukrainian state. That historic constitutional experience teaches us that we need to treat our soldiers with great respect, take care of their social and ideological protection.

“My general conclusion from the lessons of Ukrainian constitutionalism is that the real Constitution is one which everyone knows, respects, and executes.”

By Ivan KAPSAMUN, The Day