Constitution Day might be described as a popular pastime when every boss says something good about the Main Law or about its improvement, every citizen demonstratively goes to the country, and every TV channel invites Mykhailo Syrota to their TV studio.
They say that modern Ukrainian policymakers would rather write a Constitution or state’s sovereignty declaration than a personal income declaration. Nevertheless, this gift for Constitution-making is false. It’s just like in the proverb: to plant a tree, to build a house … to write a Constitution… If you poked a finger into anyone in Ukrainian political circles it would certainly be another Main Law’s author. But the Constitution is not a deputy’s inquiry and not a coloring-book for bored state builders. The Constitution, the Main Law, is a state’s fundamental document that has supreme legitimacy and is supported by the whole nation. Is the Ukrainian Constitution legitimate? No, it is not. I understand that with this flat statement I may provoke criticism from the side of many politicians and lawyers-Constitution-makers who live according to the ancient Roman saying – Dura lex sed lex (The law is drastic, but it is the law).
The current Constitution, the anniversary of which we celebrated on Thursday, appeared in 1996 during a serious parliamentary-presidential crisis. I can remember that at that time Kuchma was threatening the MPs with a referendum on his own half-monarchical project of the Constitution and Oleksandr Moroz (how unlucky he is) was afraid to lose the speaker’s seat. And under these circumstances marked with fear and blackmail the MPs presented the Constitution.
But according to the Constitution of 1996 in some way or another it was still possible to live using the “separate and rule” slogan as Kuchma did, in fact, for 10 years. Today, after the so-called political reform, all mechanisms of government control and counterbalance have been broken. Everybody is trying to tailor-make this new Constitution for his or her own benefit. The political reform was meant to carry out several functions: not to give too much power to Yuschenko, to protect the country from Yanukovych’s invasion, to provide the Prime Minister’s post in the parliamentary republic to Kuchma or Medvedchuk and so on. The only thing that the above reform was not meant for was the state’s Constitutional formation. The key political players were making the Constitution as if following IKEA instructions. Some of them produced “beds”, some – “bookcases” and some – “crutches”. And, as a result, the country has practically remained without a Constitution.
Frankly speaking, all Ukrainian political crises during the last two years have been the consequences of political reform. I am proud that our faction has never given any vote for the reform. Furthermore, I was holding Viktor Yuschenko’s hand in order not to let him vote for the reform. That’s why the President of Ukraine has every right to criticize the reform and demand to improve Constitutional order. Today, when the socialists blame Yuschenko for trampling on the Main Law, they forget that they, along with Medvedchuk and Kuchma, were the ones who violated the Constitution in all possible ways.
Mr. Moroz, you should realize that three Prosecutors General in one country, two governors in one province and fifteen instructions explaining every law are all your doing. It is because of you that the country, the parliament, the President’s secretariat and government are in fervor. You are the father of chaos, disorder and irresponsibility. And your maniacal desire to continue the Constitutional reforms (in this particular case) is a diagnosis.
… Our country needs a new version of the Constitution today. There is no doubt about this. We can and we should write a new legitimate Constitution. Ukraine has long-standing Constitution-making traditions. For instance, the archaic “Russian Truth” was quite a progressive document in Europe in the early Middle Ages. Or we can remember Pylyp Orlick’s Constitution which is supposed to be the mother of the Constitution of the United States.
But I would like to warn all Ukrainian politicians against a private approach to Constitution-making. There shouldn’t be any signs of individual copyrights in the Constitution project. Furthermore, the new Constitution shouldn’t be a part of the political sphere at all since Ukrainian policymakers are dishonest and irresponsible. And in this light WE are offering the following list of possible actions.
First of all, I would like to repeat once again: the Constitution project ought to be developed by specialists and Constitutional law scientists but not by politicians. Politicians do everything in their favor. Professional lawmakers should write the Constitution. They should use their international lawmaking experience and create a system of balances and counterbalances and mechanisms of control over the state’s authorities. And then the Constitution is to obtain inviolability status. Politicians should be prohibited from even putting commas into the Constitution because they would try to usurp state power with the use of commas.
In the second place, it is necessary to put two accomplished projects of new Constitution on the referendum. One of these projects has to be based on a parliamentary form of government and the other – on a presidential form of government. The two forms of government shouldn’t be mixed up because this type of system would not bring anything good for the society. People have seen the work of the “mixed system” during the last two years, so I guess they will make the right choice at the referendum.
Thirdly, the Constitution should include distinct mechanisms of control over the state’s authorities, that’s why we suggest inserting an “Opposition and its status” section into the Constitution. Opposition is the only reasoned supervisor that can control government officials and their activities.
I would like to add more about control. According to our present Constitution all officials are unpunished in Ukrainian politics; it is practically impossible to dissolve Parliament, it is hard to dismiss the Cabinet of Ministers, it is unlikely to conduct an impeachment, and it is unimaginable to institute criminal proceedings against any official. And all the above sanctions have to be possible, easy and very likely. The everyday responsibility and the threat of losing influence are the only factors that can discipline the authorities and force them to work efficiently and for the welfare of the nation. I know from personal experience that the MPs are never as eager to work as during the election campaign. There has to be a risk factor in the system of the authorities’ responsibility – the possibility of losing one’s post if a politician or official deserves that. This would make the authorities follow the law and obey the Constitution. Politicians and government authorities should be afraid of losing their posts but not proud of them. Some might say that Tymoshenko is trying to build a “totalitarian state”. But if we analyze the situation we can see that the entire civilized world is living under such a system. The President of France can dissolve the parliament without giving a reason for it. Officials’ resignations and parliament dissolution are forms of political stability in Italy. And Romania held a referendum on impeachment just days ago.
It is also necessary to state the methods and ways of overcoming all possible and hypothetical system crises in the Constitution. And there shouldn’t be any alternative versions or options with that. The Constitution is a document that doesn’t allow conflicts among the definitions. The fate of one or other form of statute shouldn’t depend on the dwelling costs of a separate Constitutional Court’s member.
Fourthly, the new Constitution should finally create a true justice system in Ukraine. We all have witnessed disgraceful things recently. We’ve seen how some district courts were repealing the President’s Decrees when only the Constitutional Court could do that. What can we say about common Ukrainians if the state authorities have to struggle for justice with the means of blocking, picketing, militia detachments and fights between factions or between coalition and opposition? The Constitution should define that the judges are not only independent but responsible. It is possible to reach that through the judges’ appointment by election and possibility to recall judges for injustice.
Fifthly, the new Constitution should include regulations that would ban deputies’ benefits and their personal immunity.
Sixthly, it is necessary to develop a single approach to the formation of the executive body of power – the Cabinet of Ministers. The government formation according to the principle when every political force nominates several Ministers is not the best way. I was Prime Minister of a government to which I couldn’t appoint any Minister. It was, to put it mildly, not comfortable at all. It took so much time to persuade some members of the government to fulfill their direct tasks. I identified this process as: “everyday fight with Khinah”. Viktor Yanukovych, as far as I know, is treating the disobedient Ministers in “his own way”, but let’s hope that from now on the Ministers will fulfill their duties with uninjured livers and kidneys. Actually, it is very interesting to watch how the present Cabinet of Ministers is trying to adapt the Constitution to their needs. It seems that Moroz couldn’t explain to the Prime Minister: what is this reform about and how can they use it? Watching them reminds me of the times of collectivization when the farmers saw the tractor for the first time in their lives. After a long lecture about this miracle of engineering they said: “It’s a good machine, of course, but what side should it be horsed at?”
And, finally, I would like to remind all our present and potential politicians, deputies, presidents, prime ministers and ministers that the Constitution doesn’t start with the tenth page where the authorities and competences are distributed between the participants of the political process. The Constitution starts with essential rights and liberties of the citizens. Not the president’s and prime minister’s authorities compose the basis of the Constitution but the people’s rights: property, education, science, jobs, salaries, recreation and so on. Only politicians who understand this main principal of the Constitution should receive a chance to become full-fledged representatives of Ukrainian citizen’s interests.
P.S. Viktor Yuschenko presented his own Constitutional initiatives the day before Constitution Day. His main points are: to reduce the number of MPs and bring in a parliament of two chambers. I fully agree with the first point. But the idea of parliament of two chambers, in my opinion, is absolutely unacceptable. Ukraine is a unitary state, therefore there is no need for two chambers which are the typical feature of the federative states. The main slogan of the present Ukraine – “East and West are together”, and the parliament of two chambers would hardly serve for the sake of uniting the country.
