A constitution ahead of its time

There is a widely held view that the “golden” age of Mazepa (the Ukrainian cultural renaissance) was marked by attempts to synthesize the achievements of Eastern and Western European cultures, and Ukraine-Rus’ was virtually destined to bridge the gap between them. One of the manifestations of this synthesis in the sphere of politics and law was an ethno-political document known as the Constitution of 1710. Fate decreed that Pylyp Orlyk, a pupil and follower of the famous Hetman Ivan Mazepa, should implement it.

This monument of political, philosophical, and legal thought was approved on April 5 (16), 1710, at a Cossack assembly near the small town of Tiahyn (called Bendery by the Turks, now in Moldova) on the right bank of the Dnister River. This is why it is sometimes called the Constitution of Bendery. The full title is “Treaty on the Establishment of the Rights and Freedoms of the Zaporozhian Army and the Entire Free Little Russian Nation between His Excellency Hetman Pylyp Orlyk and the General Officers, Colonels, and the Registered Zaporozhian Army, Which, in Compliance with the Old Custom and Military Regulations, Was Approved by Both Sides by a Free Vote and Sealed by the Solemn Oath of His Excellency the Hetman.” A shortened version of this lengthy title — Pylyp Orlyk’s Constitution — is commonly used. This document is known in the juridical community in the Old Ukrainian and Latin versions, the abridged Latin title being Pacta et Constitutiones legum libertatumque exercitus zaporoviensis.

Orlyk’s Constitution evokes pride in Ukrainians and, at the same time, bitterness that stems from an enormous intellectual loss. For nearly three centuries this document was consigned to oblivion, and this dark deed was carried out through the efforts of representatives of the “cultural stratum” of first the Russian Empire and later, the Bolshevik one. Some weak attempts to revive this document, when Ukrainian statehood was restored in 1917-20, during the “thaw” in the period of “national communism” in the late 1920s, and through the research of Ukrainians in the diaspora, failed to produce the necessary result. After the restoration of Ukraine’s political independence in 1991, the Orlyk Constitution acquired the status of a monument of Ukrainian philosophical and legal thought, but its grandeur remains little known and inadequately appreciated by the public, even by those who regard themselves as members of the “Ukrainian elite.” Meanwhile, it is high time to treat Orlyk’s Constitution not as a monument of strictly Ukrainian political and legal thought but as a legal document that the Ukrainian cultural elite presented to the civilized world.

An analysis of this document proves that there are ample grounds to support this statement if only because this legal act contains elements of the natural law theory and the theory of the division of power in public administration into three independently functioning branches — legislative, executive, and judicial.

Before substantiating the above, it is worth saying a few words about the personality of Pylyp Orlyk and the state of philosophical and legal thought in those distant times. Orlyk was born on Oct. 21 (31), 1672, in the village of Kosut, now Oshmian raion, Grodno oblast, in Belarus, and died on April 24 (May 4), 1742, in Iasi (now Romania). He was of Lithuanian-Belarusian noble descent (with his own coat-of-arms). He was educated at the Kyiv Mohyla Collegium and later served as a desk recorder at the Kyiv metropolitan’s chancellery from 1692 and clerk and regent (manager) at the General Military Chancellery from 1700. In 1706 Orlyk was appointed general secretary in the Mazepa government and took part in the hetman’s secret diplomatic activities. Orlyk was elected hetman of Ukraine on April 5, 1710. He was fluent in many languages and wrote his major literary and philosophical works in Latin.

This raises the question: are the provisions enshrined in the text of the constitution really Orlyk’s own ideas or were they borrowed from Western European philosophers and jurists? At issue here are the two directions: the theory of natural law and its component, the theory of “natural” (godly) human rights; and the theory of “power division” as a principle for building institutions of public administration.

The great French thinker and jurist Montesquieu, who is credited with the theory of the division of political power into legislative, executive, and judicial branches, scathingly criticized the regime of absolutist France in his philosophical and epistolary works. But the historical sources of Montesquieu’s theory date back to the Levelers. John Locke (1632-1704) further developed these ideas: the legislative branch (parliament), executive (the king), and federal (the king). The king’s authority was extended to such matters as war, peace, and foreign policy. According to this scheme, the king performed two governing functions, while the judicial power is not mentioned at all.

The civilized world accepted as ideal the public administration setup ascribed to Montesquieu, which provided for a division into functionally autonomous institutions: parliament-government-courts. But were Montesquieu’s views completely original? Here we must return to the constitution that was approved in 1710 by a representative assembly of Ukrainian Cossacks. It would be wrong to give preference to Montesquieu for the simple reason that he was born in 1689. This means that in 1710 he was 21 and had just begun to work as a lawyer after graduating from a university law department. Only much later did he begin to publish his philosophical works that suggested the idea of power division (The Persian Letters, 1721; Considerations on the Causes of the Greatness of the Romans and of Their Decline , 1734; The Spirit of the Laws, 1748). Thus, Montesquieu’s ideas could not possibly have helped shape Orlyk’s views on the organization of the legislative, executive, and judicial branches of power. It may be suggested that, on the contrary, Montesquieu had an opportunity to familiarize himself with Orlyk’s works and documents written in Latin.

As for the great Voltaire, he was only 16 years old in 1710. The other well-known French philosophers and enlighteners, as well as the fathers of the American Constitution, had not even been born. Thus, the very idea of power division could have been generated by none other than Pylyp Orlyk. With regard to its political and legal implementation, the Ukrainian hetman was undoubtedly the first to do this.

As for the constitutional implementation of the ideas based on the theory of natural law and its institution of human rights in a “natural milieu” (freedom, equality, ownership), which the English philosopher and legal scholar John Locke described in detail in his most famous works, Two Treatises on Government and Essay Concerning Human Understanding (both published in 1690), it may be suggested that Orlyk could have borrowed these ideas and creatively improved them when he was crafting his works and the constitution. Orlyk could also have been influenced by the views of the Dutchmen Hugo Grotius and Benedict Spinoza, and the Germans Samuel von Pufendorf, Christian Thomasius, and Theodor Ludwig Lau.

The Orlyk Constitution consists of a preamble and 16 articles. Its authors, who call the Ukrainian state “Ukraine,” “Little Russia,” and the “Zaporozhian Army,” suggest forming the national government in the following way. Legislative power is granted to the General Rada (council) represented by the general corps of officers, civilian city colonels, general councilors (sound-minded and well-respected delegates from regiments), regimental officers, captains, and representatives of the Zaporozhian Sich (Art. 6). The General Rada was to convene three times a year: in January (Christmas time), April (Easter), and October (Day of the Holy Virgin the Protectress). The General Rada was to deal with matters of state security, the common weal, and other civil issues, hear the hetman’s reports and take no-confidence votes, and elect general officers on the hetman’s recommendation.

This was supposed to lay the groundwork for permanent parliamentarianism, albeit in the form of occasional sessions, in contrast to “black councils” (general military) and officers’ advisory assemblies that were typical of the Hetmanate. This formation was aimed at exercising control over the executive branch. It envisioned for the first time the induction of elected representatives of regiments (administrative-territorial units) and the Zaporozhian Sich into a legislative body. However, the constitution did not establish norms for their representation. Through the procedure of electing general and other officers, the constitution partly inherited and standardized the customary practice of traditional Cossacks’ (people’s) direct parliamentarianism of the Zaporozhian Sich, but also introduced representative parliamentarianism, ensuring that those who were elected were independent of the hetman’s will.

During intervals between sessions, the powers of the General Rada were executed by the hetman and the council of general officers (Art. 6). These institutions embodied the highest executive authorities. Yet the hetman’s absolutist governmental powers were drastically reduced (Art. 6, 7, 8). The hetman was stripped of the right to dispose of the state treasury and lands, pursue his own staff placement and foreign policies, set up an administration subordinated to him personally, and punish the guilty. While in office, the hetman was furnished with real estate and clearly stipulated profits in line with his exalted position.

As a document establishing universal legal foundations of the state and society, the constitution in fact envisioned, for the first time in history, separation of the judicial branch from other governmental institutions and its independence in handing down certain rulings, as well as compulsory jurisdiction of these rulings for all. It was the brief Art. 7 that caused this “upheaval:” “Should any general officers, colonels, general councilors, nobles, or other military officials, as well as common people, commit an offense by insulting the hetman’s honor or are guilty of committing any other crime, His Excellency the Hetman shall have no right to punish the culprit with his own authority. Such a case — criminal or any other — shall be referred to the military General Court. Everybody is to bow to the impartial court decision no matter how unpleasant it may be.”

It has not been ruled out that this idea could have been the joint viewpoint of hetmans Ivan Mazepa and Pylyp Orlyk, which gradually took shape owing to certain situations. For example, in 1692, in a letter to the Muscovite tsars Ivan and Peter, Hetman Mazepa focused on restricting the tsarist government’s functions in governing Ukraine, particularly with regard to the jurisdiction over the hetman of the Zaporozhian Army’s General Court, rather than tsarist courts.

Therefore, Orlyk’s constitution was not simply the philosophical viewpoint of a lone scholar but a huge legal step towards bringing into civilizational practice the theory of dividing a national government into legislative, executive and judicial branches via a juridical act adopted by a constituent assembly of Ukrainian Cossack representatives.

The most important feature of this act was the provision raising the local government to the constitutional level. The norms of international (Magdeburg) law were thus translated into the country’s constitutional act. It will be recalled that at the time the cities of Ukraine, in contrast to Muscovy, had been living under Magdeburg Law for centuries. Attacks on this law gradually began when Ukraine was joined to the Muscovite state, and they increased in intensity as Tsar Peter I strengthened his absolute monarchy. This is why a constitutional provision for the rights of local self- government for cities in Ukraine may be regarded as a reaction to monarchic policies. Article 13 of the act says, “The capital city of Kyiv and other Ukrainian cities with their city administrations (a sign of Magdeburg Law — Author) shall retain unshakably the rights and privileges granted to them in good faith. The constituent assembly shall make a decision to this effect with due respect for this act, which is subject to confirmation by the hetman’s government.” A separate clause is devoted to the Zaporozhian Sich, which allows one to conclude that the document guaranteed the Sich’s autonomy within the limits of the Ukrainian state.

The local administration was to be represented by elected civilian colonels and regimental officers. The election of a colonel was to be coordinated with the hetman, who was supposed to confirm the newly-elected colonel in office but could not influence the course of the election itself, which was conducted by the regiment (Art. 8). The introduction of civilian colonels, the use in the text of the term “county” instead of “regiment,” and other provisions, may be regarded as the intention of the constitution’s authors to establish a civilian territorial setup for the State of Ukraine, along with the military mobilizational system of the Zaporozhian Army, and to separate military offices from civilian ones (Art. 10). The provision according to which regimental officers were to be elected by two social strata — the Cossacks and the “common people” (peasants and burgers) — was a major step toward introducing universal suffrage (so far, exclusively for men).

Astonishingly, the Orlyk Constitution laid down social approaches to the problems of some strata of the Ukrainian population (art. 9-12, 14-16) in the period of late feudalism and early capitalism, such as a ban on excessive exploitation of peasants and other working people. Incidentally, these are written in an unusual way, in comparison to the contemporary manner of drawing up standard-setting instruments that deal with human rights. The constitutional clauses do not declare human rights, but certain government officials are responsible for implementing the rights of certain groups of the population. Treasurers are to take scrupulous care of the treasury, look after mills and incomes, and see that these served public, not personal, interests. The hetman himself has no right to encroach on the military treasure or its revenues or to turn them to his advantage. He is to content himself with his own incomes provided for by his high office (Art. 9). The hetman is obliged to make every effort and constantly see to it that ordinary Cossacks and civilians do not suffer from excessive oppression, ravaging requisitions and dispossessions. Military and civilian officials are forbidden to force Cossacks and civilians to do the corvee and other private work unless they are their servants. Nor is it allowed to force craftsmen to do work for officials without due remuneration or to exempt Cossacks of their duty in order to do some private work for their masters (Art. 10).

Some privileges are granted to needy social strata — mostly “common people.” Families that have dispatched a Cossack to a fighting military unit or have orphaned children as a result of a Cossack’s death during a campaign are exempt from all kinds of compulsory and public work (Art. 11). Many clauses provide exemptions for working people, who are released from paying taxes, doing compulsory work for using cultivated lands or properties of the state, as well as from other duties connected with mail services, renting property, reduced taxation, etc. (Art. 12, 14-16).

It should be noted that articles 9, 10, 12, and 14-16 may be regarded as anti-corruption provisions that are aimed at establishing a fair and responsible way of governing the country.

Due attention is paid to cultural and educational matters. In particular, the Ukrainian Church was to step out of the shadow of the Moscow Patriarchate and be subordinated directly to Constantinople (Art. 1).

Military problems also receive appropriate consideration. The provisions of Article 8 say that “His Excellency the Hetman” holds the office of commander-in-chief of the state’s armed forces, while the general senior officers’ board is the general staff, to use modern terminology. The hetman is to address all military problems together with this institution, not with his court servants.

The document names such foreign policy priorities of Ukraine as protection from Sweden as a guarantor of the country’s independence and territorial integrity, as well as fraternal relations with the Crimean state (Art. 2).

Running through the entire constitution is the idea of the political independence of the Little Russian people, with a democratic form of government and measures that protect the ancient Rus’ lands from Muscovite encroachments. Orlyk was the first to attempt to legitimize the idea of an independent Ukraine in the article The Sarmatian Hippomenes (1698) and later, together with Hetman Mazepa, he sought to seize the opportunity to put it into practice.

The bitter fact is that the Orlyk Constitution was ill-fated. Everyone is familiar with the American Constitution of 1787, the French Constitution of 1791, and even the Polish Constitution of 1791 because those documents were approved by the representative authorities of full-fledged states. Even the partitions of Poland in 1793 and 1795, which buried Polish statehood for 120 years, could not eliminate the “Polish question” from European life or the memory of Europe’s first Constitution of Poland.

Orlyk’s constitution was adopted by the representatives of only a part of the Ukrainian Cossacks, a government in exile, with which none of the great powers wished to maintain serious contact. At the time Europe was more frightened by the expansion of powerful Sweden than by the increasing strength of Peter I’s Muscovy, which played a positive role for Europe by presenting a danger to the Ottoman Empire. Europe was also rife with monarchic— imperialistic trends. The long-established monarchic courts were tearing apart and swallowing small, weak countries, such as Hungary, Livonia, Italy, and Poland because they were not interested in the emergence of new states, all the more so ones with a republican and democratic form of government.

Nevertheless, this whim of fortune in no way lessens the historic importance of the Orlyk Constitution. This monument is still extremely interesting and important from the standpoint of contemporary Ukraine’s constitutional aspirations.

Viktor Shyshkin is a judge of the Constitutional Court of Ukraine.