New constitution on the way in 2008

Just before the New Year celebrations, on Dec. 27, President Yushchenko established the National Constitutional Council to draw up a new version of the Constitution of Ukraine.

A unique political trait has emerged in our country: whenever there is a leap year there are always some constitution-related events. The year of the Constitution was 1996 (the Fundamental Law of Ukraine was adopted at the Verkhovna Rada’s fifth session on June 28, 1996); 2000 was the year of Kuchma’s constitutional referendum; and 2004 was the year of constitutional reform. Something of the kind may also happen this year. Undoubtedly, 2008 is going to be the year of a fresh “constitutional wave” and new events in the constitutional process.

Many experts forecast that the key point will be a competition for different versions of reform - from strengthening the president’s powers, which Viktor Yushchenko’s milieu is proposing, to upgrading the status of the regions, to which the Party of Regions leader Viktor Yanukovych is striving.

But to a certain extent 2007 was also a “constitutional” year. For example, during the election campaign, the BYuT leader and current Prime Minister Yulia Tymoshenko suggested that a nationwide referendum on the concept of the new Fundamental Law be held on Sept. 30 concurrently with the elections.

The communists have also had their finger in the “constitutional pie”: in February 2007 the Communist Party of Ukraine (KPU) drew up a constitution that calls for abolishing the institution of the president.

Yushchenko himself promised to offer the conceptual foundations of a new version of the Constitution of Ukraine for a nationwide debate.

We asked The Day’s regional experts the following question: “What kind of impact will the constitutional process have on the political situation in Ukraine? Will this spark bitter parliamentary debates and a fierce political struggle? What can you say in general about the constitutional reform in 2008?”

Viktor BORSHCHEVSKY, first secretary, Dnipropetrovsk Oblast Committee, Communist Party of Ukraine:

“The president’s intentions are as clear as day. He is not satisfied with his current powers and wants them to be like those of Leonid Kuchma or even more comprehensive ones, for example, the right to dissolve the Verkhovna Rada at his own discretion. It should be admitted, however, that the current Constitution is full of contradictions and does not clearly explain the separation of duties among the various branches of power. The incomplete political reform only threw things into further confusion. In my view, the government should be answerable to parliament, while the prime minister should have the sole right to form his/her own cabinet. Otherwise, a conflict may emerge between domestic and foreign policy, when the foreign minister, appointed by the president, begins to act contrary to the government’s line. The executive power is also in disharmony - both at the top, where the president and the prime minister find themselves caught in a tug of war, and on the regional level. Since the governor is the president’s creature, governmental decisions are often obstructed at his level.

“Also far from perfect are the relations between regional administrations and regional councils. This may be called local diarchy. The regional council is supposed to be a full-fledged local government body: it passes a budget but does not have an executive body of its own, which could not only fulfill but also project this budget. In a word, there are many problems in Ukraine’s current political system. But what appears to be questionable is not only the president’s intentions but also the way he is pushing through a new Constitution, taking advantage of the situation in the Verkhovna Rada. As far as I understand, there are plans to refer the constitutional council’s draft to a nationwide referendum and get it implemented by a fragile majority in the current Verkhovna Rada. First of all, it is profanation pure and simple to put to a referendum a comprehensive document in which even a single comma has great importance. Second, I am not at all sure that Yulia Tymoshenko will unreservedly support the president’s ploy, which is aimed at limiting the prime minister’s powers. As a physicist by education, I would call the situation in the Ukrainian parliament an unstable balance. It is enough for ‘a mouse to wiggle its tail,’ and the ‘golden egg’ will fall, i.e., the parliamentary coalition, which is now flying on a wing and a prayer, will collapse.”

Volodymyr KVURT, secretary, Lviv City Council:

“In the past few years we have seen that it is really crucial to revise certain constitutional provisions, especially the ones that govern the relationship among the branches of power. If asked whether this will cause a stir in the Verkhovna Rada and perhaps in society, I would say that everything depends on the approach taken during the drafting of this document. Furthermore, before making amendments, we should be clearly aware of what our Constitution is today. On the one hand, I think this document is democratic, open, and one of the most perfect, as far as the declaration of human rights is concerned. Everything is fine where our declarations are concerned, but there are many flaws and inaccuracies in the relationship between the president and the Verkhovna Rada, and the appointment procedure for Constitutional Court judges, which may provoke a political crisis in the country. We should make a clear choice of the political administration pattern that best suits our country. It is not a question of what is better but the necessity to finally choose one pattern and bring all the laws in line with it.

“I would like to emphasize that both the presidential-parliamentary and the parliamentary-presidential models can be absolutely democratic in essence (although I personally prefer the parliamentary one) provided there are checks and balances, a possibility to exert influence or impose a veto, etc. We know that an authoritarian model is more effective. Take, for example, private entrepreneurs. Once they have achieved a certain level, they require changes. If a business wants to develop and make real progress for a long period of time, it cannot employ exclusively authoritarian methods. The same applies to society: if it wants to develop (for a period longer than a single human lifetime), it should be guided by other values. We will be running too high a risk if we stake on just one individual, even a talented one.

“That we should learn to obey laws (we have adopted a lot of them, many of which are truly progressive and beyond one’s wildest dreams in some countries) is also an axiom, in my opinion. The problem is that we still have not learned to observe laws, perhaps because there is no mechanism to control the observance of laws. The level of political culture is also low, above all among top officials, who demonstrate non-observance or flouting of the laws, which is not conducive to law abidance on the part of ordinary people.

“So the Constitution of Ukraine does need changes, but let’s first decide on some points and understand some things. In particular, we must understand that checks and balances in the government allow the country to move forward. In other words, various political forces can be found in different branches of power, but they should know their limits and area of responsibility. It is common knowledge that our politicians lack a sense of responsibility. They often make ‘brilliant’ statements that show no obligations or responsibility on the part of a concrete person or political party for decisions that have been made. This power balance should also be well-considered and sufficient. There is no doubt that at this stage the president of Ukraine should remain the guarantor of the ongoing changes. But we should not forget that the Verkhovna Rada, as a legislative body, should also work within a certain framework. What has also come to a head is the problem of the judicial branch of power and the separation of powers among individuals, local councils, and the Verkhovna Rada.

“As for the Constitutional Council, I think its composition is a matter of debate. I am sure it will include authoritative people, experts in jurisprudence, government, and law, as well as politicians and political scientists who will be responsible for this document and be aware that, after working in this commission, they will have no right to assume top offices for some time. Ukraine may just reward them financially for this, but these people will have done their duty to Ukraine. There should be no allegations that they drew up this document to serve their own interests or those of the political group they represent.

“I think we should also accept the fact that any document that has an impact on the life of the entire society should be widely discussed, even though we admit that many of our citizens have a low political and professional level and are inclined to tout their political views. But the man in the street has the right to express his or her opinion about this document. Naturally, the best way to do this is with a nationwide referendum that will directly enact the document into law. Before this, there should be wide-scale public hearings in which public figures from every corner of Ukraine will participate. There should be no hurry with this matter. It is not ruled out that somebody may use the drafting of amendments to the Constitution of Ukraine as an element of his/her own electoral process. We should keep such people at bay. We can finally make a deal that this document will come into force in, say, five years. There are parliaments that decide that the document they have passed will only take effect once the next parliament is elected. We should also do something of the kind. World practice answers quite a few questions. Naturally, we would like to do this with a retroactive effect in order to reconsider previous decisions. But no matter how attractive this may look, we should not do this.”

Volodymyr PRYTULA, chairman, Committee for Monitoring Freedom of the Press in the Crimea:

“In general, it is an obvious fact that it is high time to change the Constitution. The parliamentary crisis and the Constitutional Court problem have only confirmed this. Moreover, the Constitution needs changing because the imperfect 2004 constitutional reform led us into a dead-end and aggravated the situation in legislation, public administration, and society as a whole. So it is clear that the president is forced to do this. At the same time, it is highly probable that the drafting of a new constitution may cause tensions and excessively bitter debates in society, which will in turn provoke a political confrontation.

“So the new Constitution should be drafted in a way that will avert tensions. Firstly, it should be worked out by experts and academics, not by the people who are now in power. To avoid speculations about the Constitution, public opinion must be heeded, all the more so as last year it was the public that showed the initiative and set up the Constitutional Civic Assembly, and is now taking an active part in its proceedings. Practice shows that such an important task as drafting a new constitution should not be entrusted to politicians alone because there is a grave danger that a certain political force will be pursuing its narrow egoistic interests here, so the new Constitution must be written by experts and the public. We believe that an obligatory condition for the members of the Constitutional Council is the refusal of these scholars to take part in the political process not only in the current year but also in the next 10 years. Only on this condition can we avoid conflict in society and one-sidedness in the Fundamental Law.”

Viktor RADCHUK, political scientist and PR expert, Zhytomyr:

“Viktor Yushchenko’s decree to establish the National Constitutional Council was a predictable step in principle. Naturally, the current opposition will use the constitutional process to influence the parliamentary majority and the ruling coalition in general. A smooth procedure for improving the Fundamental Law in the Verkhovna Rada requires well-coordinated work and the consent of at least 300 MPs, which is not the case now. But even the very attempt to draw up the laws that are needed for amending the Constitution is a positive thing. This process should involve academics, lawyers, politicians, and perhaps party representatives, i.e., all segments of society. After all, it is not ruled out that the new version of the Constitution will be put to a nationwide referendum, especially in the case of obstruction by certain forces. And even though these changes should be implemented by a parliamentary majority of at least 300 votes after they have been approved in the referendum, the fact that the population has or has not approved them will be of great importance. One should be guided here by the Ukrainian saying, ‘If you are afraid of the wolves, you’d better stay out of the woods.’ In other words, to solve the problems of Ukraine’s constitutional setup, we should not wait for the Verkhovna Rada to muster the required 300 votes. So we really need a council that will be drafting the new version of the Constitution, but it is doubtful that this body is represented by the best forces and is capable of making the most optimal proposals. What is going on now resembles Soviet practices. I personally favor the adoption of a revised version because the current text raises a lot of problems, especially in local government. This matter has been at a standstill since 1996. But I don’t think parliament will be pathologically dependent on constitutional questions.”

THE DAY’S FACT FILE

The procedure of amending the Constitution of the Ukraine:

1. The bill on making changes to the Constitution shall be submitted to the Verkhovna Rada by the president or at least one-third of the parliament members.

2. The Constitution may not be altered if the proposed changes are aimed at abolishing or restricting the rights and freedoms of citizens or if they entail the liquidation of independence or violation of the territorial integrity of Ukraine. The Constitution may not be altered if martial law or a state of emergency has been imposed.

3. Changes to the Constitution shall be approved by an absolute majority of the Verkhovna Rada’s constitutional quorum (300 members must vote “for”) or by a nationwide referendum called by the president.