June 28 marks 17 years since the adoption of the Ukraine’s Constitution. Despite its young age, it has gone through a rather complicated process of formation, which, judging from the work of the Constitutional Assembly, is not yet completed. Before the Constitution Day (June 28) we contacted the first President of Ukraine, Chairman of the Constitutional Assembly, Leonid KRAVCHUK, and also with one of the authors of the Constitution, law professor Viktor MUSIIAKA. The Day had many questions both regarding the functioning of the existing Constitution and the possible changes that are being prepared by the Assembly.
“Apparently, there was no such Constitution in the history that would have had such a tough process of formation,” said Leonid Kravchuk. “Originally, the parliament passed the constitutional law and then in 1996 the Constitution itself declaring the presidential-parliamentary republic was adopted. In 2004 we switched to parliamentary-presidential republic, but it turned out to be a ticking mine and caused conflicts between Viktor Yushchenko and Yulia Tymoshenko. In 2010 Viktor Yanukovych became the President and the Constitutional Court decided that the amendments to the Constitution passed in 2004 were made in an illegal way and, thus, we went back to the Constitution of 1996.”
The games that have been played with the Constitution all these years have led to a situation when the current Constitution is not being respected and often violated. “The current Constitution cannot enjoy respect. Politicians treat it as a duster that can be used to achieve one’s purposes when necessary,” Kravchuk says.
However, the problem is not only with the authorities. “Citizens are now indifferent to the Constitution,” Musiiaka says. “People are used to looking at any government acts, including one of such a large scale, from the viewpoint of how likely the declared rights are to be actually enforced. In Ukraine, the rights and freedoms of the highest value, ones recognized across the world, are not guaranteed. However, the problem is not only with the authorities but also with citizens. Their participation in the fight for their own rights is not as active as would be desirable. An active civic position on this issue is the most important factor. We shouldn’t wait for the authorities to change. We need to start taking action on our own.”
Meanwhile, the authorities are already taking their action. The Constitutional Assembly recently held another regular meeting. “We considered a draft conception about amending the Constitution,” Kravchuk explains. “In October 2013, after processing comments submitted both during the meeting and voiced by the public, we will work out the conception. Then the way towards adopting the draft law on amending the Constitution will be open, and we will continue working on the draft law. We will also be considering remarks from some members of the Assembly on the law on the referendum. We adopted a fairly reasonable resolution. We have applied to the President informing him that all laws of Ukraine must conform to the Constitution, while the law on the referendum is not entirely in line with Chapter 13 of the Constitution. The remarks of the Venice Commission were also taken into account.”
What changes to the Constitution are to be expected? The fact that there are big problems with obeying the Fundamental Law does not mean that there should not be clear-cut provisions on paper in line with our traditions and national interests. The current situation in parliament, local government bodies, and courts is ample proof of this.
Leonid Kravchuk: “We have analyzed all the chapters and articles of the Constitution and decided that they should all be spelled out in clear terms so that no dispute may arise. The Constitution must be an agreement between the government and the people and be understandable for the people. We proceed from the fact that we have a presidential-parliamentary republic now, and I support this option. In my opinion, there can only be a question of specifying some powers of the Verkhovna Rada and the president as branches of power – their legal fields must not cross one other. It is a difficult problem, and we will give it a minute scrutiny. We should adopt the Constitution legitimately, within a legal field, consulting the Venice Commission and various parties.”
Viktor Musiiaka, who was recently expelled from the Constitutional Assembly and replaced by political scientist Volodymyr Fesenko, has made a more radical conclusion: “The government is not seeking a better version of the Fundamental Law, their goal is to meet the European Union’s demands in the way that suits the government the most, in connection with the upcoming signing of the Association Agreement. The government has also set up a ‘prop’ for itself in the shape of the law on referendum. So the creation of a new Constitution is a face-lifting ploy for Europe and the world to see. To carry out certain reforms, one must draw up a single concept which will determine the distribution of functions between the governing entities. For I have seen that people are proposing concrete changes without having a general view of things. I know what they want to see as a result. They have in fact turned into instruments of project realization for the government members who deal with ‘reconstruction.’”
Incidentally, as for the “prop” in the shape of a law on referendum, Minister of Justice Oleksandr Lavrynovych said yesterday that he considers it legitimate to adopt Constitutional amendments at a national referendum, Ukrainski novyny reports. It will be recalled that the Venice Commission stated earlier that adopting Constitutional changes at a referendum might impair constitutional stability and legality in Ukraine.
Taking into account the current low level of observing the Constitutional norms, will the Fundamental Law be observed properly after being reformed? “It may happen that even the world’s best Constitution is not observed,” Viktor Musiiaka comments. “The way out of the current situation should be sought inside the society itself. The Ukrainians must be aware that nothing will change unless they show activity. This applies to the elections, judges, and obeying the law. It is a difficult road, but if we do not embark on it now, there will be nothing to hope for. Only when we begin to act and defend our rights, we will be able to say that we have a state and a Constitution. Otherwise, the Fundamental Law will turn into a slightly repaired toy.”
