THE UKRAINIAN CONSTITUTION AT 25: STILL A WORK IN PROGRESS…

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THE UKRAINIAN CONSTITUTION AT 25: STILL A WORK IN PROGRESS…

On June 28, Ukraine celebrated the 25th anniversary of the ratification of its post-Soviet Constitution.   The document was adopted after a marathon all-night session that proceeded under a threat from President Leonind Kuchma to adopt an alternative constitution via referendum.  The final, most controversial elements related to the state emblems and the status of Crimea. 

Given this somewhat inauspicious debut, it is no surprise that the Constitution subsequently became a bone of political contention, all too often being observed in the breach.  Its formally mandated 'guardians' - the president and the Constitutional Court -  have frequently been accomplices in manipulating the Constitution's foundational role in consolidating Ukrainian statehood. 

Attempts at restoring the document's centrality - or, alternatively, ensuring its political subordination - through fundamental amendments were made in 2004, 2010 and 2014.  The Yanukovych Administration's 2010 reforms - essentially reverting to a centralized presidential-parliamentary system by stealth - ultimately proved catastrophic and were a central factor in the 2014 protests known as the Revolution of Dignity.

Despite the anticipated formal reverence displayed towards the Constitution on this landmark occasion, the fact that there are several sets of fundamental amendments currently vying for the Verkhovna Rada's attention, suggests that the controversies generated by the 1996 document are far from over.  The USUF asked three individuals familiar with these processes - including Oleksandr Moroz, who was chairman of the Verkhovna Rada when the Constitution was ratified - to comment on that historical event and  its significance thirty years on.  

1.Why was the Constitution of Ukraine adopted at that particular time, five years after independence?  What was the immediate imperative?

Oleksandr MOROZ (Speaker of the Verkhovna Rada of Ukraine, 1994-98 and 2006-07): Every country has its own Basic Law or something similar.  This was one of the reasons for the adoption of the Constitution.  The absence of a constitution was to some degree indicative of  the incompleteness of the process of establishing sovereignty.

Many new laws had been passed in the five years prior to the adoption of the Constitution.  They reflected the new realities or expressed ideas of how to cope with these changes. Their content often conflicted with constitutional principles and they were effectively hollowed out.  In this way the existing [Soviet era] Constitution began failing in its function as the nucleus of the legal system.  It started to become unbalanced.  This shortcoming became most apparent after the government was unwisely given the right to issue decrees – acts which were the equivalent of laws.

The situation required that the parliament act to resolve this problem. This was another reason for the Constitution’s adoption.  All of this coincided with the president’s ambitions - as a former prime minister he had gotten used to issuing government decrees - to govern autocratically, something he wanted enshrined in any constitution.  These opposing views created political tension between the branches of government and within society.  This explains the intensity of the debates within the parliament where a number of deputies defended the president’s position.

Oleksandr BARABASH (People’s Deputy of Ukraine, 1990-94, Vice President of the Association of People’s Deputies of Ukraine, 1995-to date): In reality, the Constitution of Ukraine had existed since September 17, 1991, when the Verkhovna Rada (elected in March 1990 and which bridged the Soviet- and post-Soviet eras) immediately passed a whole series of fundamental amendments to the Constitution of the Ukrainian SSR that were required by the country's newfound status.  This included the name of the Constitution itself.  2021 is, therefore, the thirtieth anniversary of the Constitution of UKRAINE, but this should be celebrated on September 17.  In the five years prior to the adoption of the Constitution of Ukraine, the Verkhovna Rada made fifteen major amendments and a further three were made by the succeeding Rada that convened in March 1994. 

The ratification of a new Ukrainian Constitution was necessary because of the serious political conflict for political primacy between the President, Leonid Kuchma, and the Verkhovna Rada that had been elected in the 1994 early elections.  The first stage of this confrontation was the adoption by the Rada on June 8, 1995 (by 240 votes) of the so-called Constitutional Agreement which introduced a division of responsibilities clearly not in President Kuchma's favor.  The adoption of the Constitution of Ukraine on June 28 the following year not only codified a certain compromise between President Kuchma and the Rada but also resolved the legal chaos that the Constitutional Agreement had created. 

Ivan ZAYETS (People’s Deputy of Ukraine, 1990-94, 1994-98, 1998-2002, 2002-06, and 2007-12):  There were two main reasons.  The first one was the need to consolidate the new state.  Large scale revolutionary transformations had to be made in a lot of socially significant areas. Ukrainians had to rid themselves of their colonial status and create an independent, democratic state.  There was a very real need to move away from an administered economy and create a market one based on private ownership, a pluralistic political system, to build security and defense sectors in the context of the country’s nuclear disarmament, and to form a legal system based on the primacy of natural rights. 

The new Constitution was to be the key, fundamental document of the Ukrainian state, the basis for a national system of laws.  The extraordinary complexity of the transitional process made the drafting and adoption of the constitution an unusually complicated task. 

The constitutional process in Ukraine began when Ukraine was still part of the Soviet Union with the adoption on July 16, 1990, of the Declaration on the State Sovereignty of Ukraine.  Then, on October 24 that year, the Verkhovna Rada introduced amendments to the existing Soviet Constitution that, among other things, liquidated the Ukrainian Communist Party’s monopoly on power, established the primacy of Ukrainian laws over all-Union legislation, and recognized the independent status of the procuracy and the court systems. 

But the second and main reason for the delay in adopting a new Constitution was the conflict between the democrats and the Left, who had very different views on the future of Ukraine.  The early parliamentary elections of 1994 returned a Left majority, the core of which consisted of the Communist Party, which had initially been banned in 1991 but then restored.  The Communists in particular did not accept the idea that Ukraine was restoring its statehood and therefore rejected the national historical experience.  They denied that Ukraine had developed within the mainstream of European state-building processes as a nation-based state. That’s why they opposed the idea of Ukrainian as a state language, the adoption of national state symbols, and traditional state management structures based on a separation of powers.  They wanted a constitution that reflected their Communist ideology and so-called Soviet practices.  The very idea of a presidential or presidential-parliamentary system was anathema to them.

The Left tried by every means possible to obstruct the process of consolidating Ukraine’s sovereignty.  They aimed to pull Ukraine back into a new Russian empire.  In this they were helped considerably by Yeltsin’s Russia.  Moscow was continually offering Ukraine various reintegration agreements, such as the defense-related Tashkent Agreement.  The Communists were in the vanguard of Russian policy in Ukraine.  The Communists and Socialists realized that the adoption of a new Constitution would draw a sharp line with Ukraine’s Communist and colonial past.  That’s why they opposed it so vehemently.            

  1. Was there ever any concern that the Constitution would not be adopted? How serious was the President's threat to adopt another version through a referendum?

OM:  I had no doubts that the Constitution would be adopted by the parliament.  This became clear  when the composition of the Commission tasked with preparing the draft accurately reflected the requirements laid down by parliament.  Being well aware that discrediting the work of the parliament – something that both the presidential administration and the head of state himself wanted – would not produce anything, the President announced a referendum.  The parliament ignored the illegal decree and continued to work on the Constitution, eventually ratifying the draft prepared by the deputies. 

OB: "Concerns" or "hopes" were felt or expressed only by those directly involved in the political conflict of the time.  There was no unusual or pressing social need to adopt a new constitution because Ukraine already had a fully-fledged constitution dating back to September 1991 that had subsequently been substantially changeded by eighteen key amendments.  That constitution addressed in one way or another every question relating to state-building - including the organization of political authority, the definition of state symbols and all of the basic human rights and citizens' liberties.  At the same time, in the contest for his vision of the division of constitutional authority, President Kuchma had a clear advantage when it came to popular support.  That is why the threat to 'push through,’ his (more authoritarian) version by referendum was very real and the appropriate decree had been signed the previous day.  This threat genuinely motivated the Rada deputies to engage in their day-long legislative marathon.  At the Rada morning session which followed the final vote on the Constitution, President Kuchma revealed that the decree on the referendum was no longer valid and apologized for having "stimulated [the whole] process not altogether correctly."

IZ: I had no doubts that the Constitution would be adopted by the parliament.  I saw that the disruptive efforts of the Left were getting no broader traction.  The Left liked the power they wielded in the Rada too much to risk losing it by not eventually ratifying the Constitution.  Their lack of broader support finally created a fairly broad space for compromise between the parliamentary majority Left and the democrats. Our major concern then became the adoption of a high quality constitution and to not make any concessions to the Left on the key points such as the organization of democratic authority and citizens’ rights as well as on property rights, language issues, and state emblems. 

President Kuchma would undoubtedly have held a referendum on the Constitution had the Verkhovna Rada not adopted it.  He had enough popular support for this and the population was demanding a new constitution.  The democratic forces also wanted a constitution to be adopted as early as possible.  A failure to do so would have been seen by the President as a failure by the Verkhovna Rada to comply with the terms of the previous year’s Constitutional Agreement under which a new constitution was to have been ratified by June 8, 1996.  

Actually, the subject of the referendum would not have been a presidential version of the Constitution, but the version proposed by the Constitutional Commission that had been submitted to the parliament on March 20.  Kuchma did not have any version as such.  The Constitutional Commission consisted of representatives of different parliamentary forces, including the Communists.  Talk of a presidential draft of the Constitution was just scaremongering by some Rada deputies.

  1. Why is it so difficult for Ukraine to respect the primary significance of the Constitution?  Is it a question of inherent flaws or a lack of political culture?

OM: The Constitution can be improved or perfected. This would involve first and foremost strengthening the weight and role of genuine self-rule.  This very issue does not appeal to the executive branch, which is personified by the president.   This is the root cause of the disrespect for the Basic Law, of the efforts to alter or even circumvent it.  I think that the failure to adhere to the Constitution is the true reason behind Ukraine’s decline.

OB: This is a much wider and fundamental problem.  The absence of the required political-legal culture and unconditional respect for the law, rules and rights (and not just towards the Constitution itself) are all major vices of a system of values, or worldview, of the country's political 'elite' that they impose on the whole of society.  When and how this system of social values took root among the Ukrainian 'elite' which is called - depending on one's taste - the "oligarchical system," "oligarchical model," or "partocracy" is the subject of separate research and analysis.  But it's obvious that this shortcoming of the 'elite' is the major obstacle, a kind of bottleneck, along the path to Ukraine's civilized progress and prosperity that ultimately affects the quality of life of all of its citizens. 

IZ:  The Constitution of Ukraine is a completely adequate document that has not exhausted its potential.  Moreover, there are a number of ways of increasing its possibilities.  One way is by passing constitutional laws, something allowed by the Constitution itself.   Another far from exhausted instrument is the Constitutional Court, which could clarify or resolve some issues through its right of interpretation.  A third way of strengthening the Constitution would be by applying the Constitution juridically because its norms are norms of direct action.  

The problem lies not in the quality of the Constitution itself but in the low level of political culture of the ruling elites who should affirm the Constitution’s central role by unconditionally abiding by it and setting an example for people to follow.  To respect something demands understanding it.  It’s not enough to attribute problems to growing pains.  A clear mechanism for accountability needs to be created for punishing failure to observe the Constitution.  Knowledge of the Constitution should be a mandatory requirement for certain official positions as well as part of a reformed education curriculum.