The Holy Grail:

Who wants a change of Ukraine’s Con­sti­tu­tion, and why

The Ukrainian Week - - CONTENTS - Ro­man Malko

Who wants a change of Ukraine's Con­sti­tu­tion, and why

Ukraine needs new clear rules, a new so­cial con­tract, a new Con­sti­tu­tion and, over­all, an over­haul of the state­hood based on a new qual­ity of re­la­tions be­tween the cit­i­zens and their gov­ern­ment. These ideas are re­peated over and over again, and more fre­quently lately.

The 1996 Con­sti­tu­tion is crit­i­cized as a prod­uct of a com­pro­mise be­tween then elites, the old post­com­mu­nist one and the new na­tional demo­cratic one, that no longer meets the de­mands of the time and so­ci­ety, and can­not en­sure suc­cess­ful progress of the state de­spite the amend­ments made through­out these years.

For now, there are at least give projects of the new Con­sti­tu­tion by var­i­ous more and less known au­thors. One is by Ihor Yukhnovsky, one of the au­thors of the 1996 Con­sti­tu­tion. This project was de­vel­oped by a work­ing group of at least two dozen ex­perts. It pro­poses a two-cham­ber par­lia­ment with a Sen­ate as the up­per cham­ber and the Na­tional Coun­cil as the lower cham­ber. The Sen­ate would have four per­ma­nent cham­bers: the se­niors, the econ­omy and plan­ning cham­ber, the ter­ri­to­ries and self-gov­er­nance cham­ber, and the Coun­cil of Ex­perts as cham­ber of the fu­ture. The Sen­ate would be in charge of con­ceiv­ing the strat­egy of the na­tion’s de­vel­op­ment, mon­i­tor­ing the ac­tions of the pres­i­dent and gov­ern­ment in im­ple­ment­ing that strat­egy, ex­plor­ing Ukraine’s de­fense ca­pa­bil­ity, the ef­fi­ciency of its for­eign pol­icy, the qual­i­fi­ca­tion and the fitness of can­di­dates for top po­si­tions. The Na­tional Coun­cil would be some­thing sim­i­lar to the cur­rent Verkhovna Rada: it would be in charge of the leg­isla­tive ac­tiv­ity along with the Sen­ate, ap­prove the Cab­i­net and pass the bud­get. The au­thors of the project be­lieve that such a model would en­sure po­lit­i­cal sta­bil­ity of Ukraine, elim­i­nate un­cer­tainty in the state-build­ing pro­cesses do­mes­ti­cally and in­ter­na­tion­ally, and shape the sys­tem of checks and bal­ances within the leg­is­la­ture.

An­other pro­jected de­signed by the Ukrainian Helsinki Hu­man Rights Union at the end of Vik­tor Yushchenko’s pres­i­dency. It also of­fers a two-cham­ber par­lia­ment with the Cham­ber of the Re­gions and the Cham­ber of Deputies. The Cham­ber of the Re­gions would rep­re­sent the re­gions, while the Cham­ber of Deputies would be elected by the cit­i­zens through gen­eral elec­tions. Fol­low­ing suit of the US Congress Sen­ate, the Cham­ber of the Re­gions would ap­prove the pres­i­dent’s pick for the prime min­is­ter and Cab­i­net mem­bers, and judges of the Con­sti­tu­tional Court. The Cab­i­net would re­port to pres­i­dent di­rectly, while lo­cal state ad­min­is­tra­tions would re­port to it (as France’s pre­fec­tures do) – they would have the pow­ers to con­trol lo­cal self-gov­ern­ments.

Apart from the fi­nal­ized projects, a few more ini­tia­tives ex­ist. One comes from the or­ga­ni­za­tion ti­tled the Peo­ple’s Con­sti­tu­tion, a Coali­tion of Civil So­ci­ety. It is al­legedly spon­sored by Ser­hiy Liovochkin, Chief of Staff un­der Vik­tor Yanukovych’s pres­i­dency, and oli­garch Ser­hiy Taruta. Whether this ini­tia­tive has pro­duced any new doc­u­ment is un­clear. But it has tried to se­cure a spot in the process for it­self by pass­ing the idea of set­ting up new agen­cies to amend the Con­sti­tu­tion through Par­lia­ment. It of­fers a wide civic di­a­logue and the Con­sti­tu­tional As­sem­bly to de­velop a new Con­sti­tu­tion that would be put up on a gen­eral ref­er­en­dum. The VR barely sup­ported the pro­posal at a sec­ond at­tempt and has been hang­ing there ever since.

Few par­ties or politi­cians re­frain from an at­tempt to come up with Con­sti­tu­tion-re­lated ini­tia­tives. Yu­lia Ty­moshenko says that the cur­rent Con­sti­tu­tion needs to be changed be­cause it gives peo­ple no ef­fec­tive in­stru­ments to change the gov­ern­ment in Ukraine ear­lier than sched­uled elec­tions. She ar­gues for an en­tirely new Con­sti­tu­tion that will pri­or­i­tize the in­ter­ests of so­ci­ety and give peo­ple real tools of con­trol over the gov­ern­ment. She of­fers noth­ing more spe­cific, other than to reload the clan-based power sys­tem, to elim­i­nate the di­archy in power, and to hold a real rather than fake ju­di­ciary re­form. Of course, she sees her­self as part of the new team that will break and re­place this clan-based power sys­tem. Ru­mor has it that the Pres­i­den­tial Ad­min­is­tra­tion wouldn’t mind amend­ing the Con­sti­tu­tion too, in or­der to help Petro Poroshenko stay in power. The al­leged per­son in charge of this is Ihor Hryniv, one of the pres­i­dent’s key spin doc­tors. The changes would have the pres­i­dent elected by par­lia­ment and some of his pow­ers, such as the ap­point­ment of some min­is­ters, chiefs of oblast state ad­min­is­tra­tions or the Na­tional Bank of Ukraine, curbed in fa­vor of the premier. Also, the pres­i­dent would be de­prived of in­flu­ence on par­lia­ment which would be re­duced to 300 seats, while the thresh­old would go down from 5% to 3%. Also, the pres­i­dent would lose his power over the shap­ing of do­mes­tic and for­eign pol­icy. As a re­sult, the premier would be­come the key fig­ure in the coun­try while the pres­i­dent would be a nom­i­nal fig­ure. Yet, even now the premier can­not com­plain over the lack of pow­ers which are far vaster than those of the pres­i­dent. The rea­son why the cur­rent Pres­i­dent presses the Premier more fre­quently than the sys­tem al­lows for lies in the dis­tor­tion of this sys­tem, not its de­sign.

Whether such plan ac­tu­ally ex­ists and whether Pres­i­dent Poroshenko would agree to it is any­one’s guess. For now, he hardly has any other ways to stay in power given his plum­meted rat­ing. A sim­i­lar plan, with some dif­fer­ence in nu­ances, has al­ready been put for­ward by Poroshenko’s fren­emy, ex-Premier Arseniy Yat­se­niuk.

In the end, it would do good to curb Poroshenko’s pow­ers. At this stage, how­ever, it would prob­a­bly be enough to sim­ply put them to or­der. On one hand, he of­ten takes it too far while his Ad­min­is­tra­tion tends to act iden­ti­cally to Leonid Kuchma’s Ad­min­is­tra­tion whose chief of staff was Vik­tor Medved­chuk, the pro-Rus­sian ac­tor in Ukraine’s pol­i­tics. On the other hand, it makes no sense to com­pare Poroshenko to Kuchma, nor Yanukovych whose en­tourage was milk­ing the coun­try dry while their boss was lost in re­flec­tions at his fancy res­i­dence. Poroshenko’s pow­ers are far more lim­ited than those of his two pre­de­ces­sors. And be­fore one delves into the con­sti­tu­tion-chang­ing, it won’t hurt to re­mem­ber the de­tails, as well as the end of sim­i­lar ex­per­i­ments in the epoch of the late Kuchma and the early Yushchenko: the changes of 2004 were about the curb­ing of pres­i­den­tial pow­ers. Both then, and now, sim­i­lar changes are been lob­bied for by Medved­chuk, a man whose daugh­ter has Vladimir Putin as her god­fa­ther. He also pro­motes fed­er­al­iza­tion and var­i­ous other ideas rec­om­mended by the Krem­lin. What was the re­sult back then? The Or­ange Rev­o­lu­tion, then the come­back of Yanukovych. By the way, Kuchma, too, had a dream to be elected in par­lia­ment.

THE 1996 CON­STI­TU­TION IS CRIT­I­CIZED AS A PROD­UCT OF A COM­PRO­MISE BE­TWEEN THEN ELITES, THE OLD POST-COM­MU­NIST ONE AND THE NEW NA­TIONAL DEMO­CRATIC ONE, THAT NO LONGER MEETS THE DE­MANDS OF THE TIME AND SO­CI­ETY

An­other ques­tion is whether it makes sense to curb the pow­ers of the Com­man­der in Chief when the coun­try is at war and needs a strong hand? Whether it makes sense to “over­haul” the state at this given moment in his­tory? It would prob­a­bly be more rea­son­able to de­fend and so­lid­ify it. The cur­rent Con­sti­tu­tion serves that pur­pose very well.

For Ukraine to have a true break­through and its Con­sti­tu­tion to ac­tu­ally work, the na­tion needs a clearly for­mu­lated po­si­tion, a sense, a set of val­ues defin­ing a Ukrain­ocen­tric project. Once those are dis­cussed, once the na­tion de­fines its fun­da­men­tal val­ues and de­cides whether Ukraine is a mere name of a ter­ri­tory, or whether there is more to its ex­is­tence, all this can be laid out on pa­per. This will take time.

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