Pre-Con­sti­tu­tional changes:

Al­though Ukraine for­mally only passed its Con­sti­tu­tion five years into in­de­pen­dence, sig­nif­i­cant changes to the Ba­sic Law took place even be­fore the Soviet Union went into col­lapse

The Ukrainian Week - - CONTENTS - An­driy Holub

What pre­ceded the 1996 Con­sti­tu­tion

Prior to 1996, Ukraine was al­ready ef­fec­tively liv­ing un­der a new Ba­sic Law. Con­sti­tu­tional amend­ments in the 1990s and the fur­ther con­sti­tu­tional process are not as widely known as the events of the “con­sti­tu­tional marathon” that took place all night in the Rada on June 28, 1996. To re­mind our read­ers of these events, The Ukrainian Week turned to Vik­tor Shyshkin, who was an elected MP first in the Ukrainian SSR and then in in­de­pen­dent Ukraine, from 1990-1994. Shyshkin was a mem­ber of the VR Com­mit­tee on leg­is­la­tion and le­gal pro­vi­sions, as it was called in soviet times and even deputy chair for a time. The texts of all con­sti­tu­tional amend­ments went through this com­mit­tee, which pre­pared them for the leg­is­la­ture.

A SPLIN­TER­ING PARTY

At the end of the 1980s, de­spite per­e­stroika, Ukraine was gov­erned by the Ukrainian SSR Con­sti­tu­tion of 1978 with all the ac­com­pa­ny­ing im­pli­ca­tions, start­ing with the no­tion of “sci­en­tific com­mu­nism” and end­ing with the pri­mary role of the Com­mu­nist Party of the Soviet Union (CPSU) and the fact that USSR leg­is­la­tion su­per­seded the laws of the re­publics. In 1990, the first rel­a­tively demo­cratic elec­tions to Ukraine’s soviet Verkhovna Rada took place. Al­though the ma­jor­ity was formed by MPs loyal to com­mu­nism, called the 239 Group, op­po­si­tion par­ties also gained sub­stan­tive rep­re­sen­ta­tion in the leg­is­la­ture and formed Nar­o­d­niy Rukh or the Peo­ple’s Move­ment.

“That Rada was the first whose mem­bers were elected on an al­ter­na­tive ba­sis,” re­calls Shyshkin. “A

sig­nif­i­cant num­ber of anti-com­mu­nist and anti-im­pe­rial MPs ap­peared in the op­po­si­tion. These were mostly peo­ple from the na­tional-demo­cratic camp, es­pe­cially Nar­o­d­niy Rukh, al­though there was also a Demo­cratic plat­form within the Com­mu­nist Party and anti-com­mu­nist but pro-im­pe­rial deputies as well. How­ever, even the pro-im­pe­rial anti-com­mu­nists were not pre­pared to break away from the ex­ist­ing for­mat at that time, as they un­der­stood that the only main en­emy was the Com­mu­nist Party of the Soviet Union.”

On July 16, 1990, the Verkhovna Rada is­sued its Dec­la­ra­tion of State Sovereignty. This dec­la­ra­tion an­nounced to the world that Ukraine was in­de­pen­dent in de­cid­ing any mat­ters re­lated to its ex­is­tence as a state. It was about eco­nomic in­de­pen­dence, the supremacy of Ukrainian law, its own Armed Forces and its own in­ter­na­tional re­la­tions. Still, the Dec­la­ra­tion was not a law, let alone a Con­sti­tu­tion, and the de­ci­sion was made to give it added le­git­i­macy by im­ple­ment­ing changes to the soviet Con­sti­tu­tion. “The Dec­la­ra­tion of Sovereignty set the foun­da­tion for what later be­came amend­ments to the Con­sti­tu­tion,” says Shyshkin.

Work on the Con­sti­tu­tion wrapped up by Oc­to­ber 1990. There was no ded­i­cated con­sti­tu­tional com­mis­sion at the time, ac­cord­ing to Shyshkin, and the draft­ing was done through in­di­vid­ual VR com­mis­sion, now called com­mit­tees. For in­stance, the eco­nomic and cul­tural com­mis­sions fo­cused on those is­sues that were their re­mit. There was also a Com­mis­sion for Leg­isla­tive Pro­vi­sions, which gen­er­ally han­dled the in­sti­tu­tional as­pect—the gap be­tween the ju­di­ciary and pros­e­cu­to­rial sys­tems and the gen­eral soviet ju­di­ciary. Only af­ter­wards, these ad­just­ments were brought into line with one an­other to pre­vent con­tra­dic­tions.

MOSCOW'S WAN­ING SUPREMACY

“This was mostly state is­sues, given that, in those days, the state had supremacy over the in­di­vid­ual and they had to de­ter­mine how state in­sti­tu­tions were to work go­ing for­ward,” says Shyshkin “All the propo­si­tions came to our Com­mis­sion for Leg­isla­tive Pro­vi­sions and we were re­spon­si­ble for changes to the Con­sti­tu­tion as a state doc­u­ment.” The num­ber and scale of the changes to the Ukrainian SSR Con­sti­tu­tion are sim­i­lar to the adop­tion of the new Ba­sic Law. They were voted on in the Rada on Oc­to­ber 24, 1990. The irony was that the amend­ments took ef­fect on Novem­ber 7, Oc­to­ber Rev­o­lu­tion Day, the main state hol­i­day in the USSR.

“In ef­fect, Ukraine had de­clared in­de­pen­dence un­der­cover,” ex­plains Shyshkin. “Be­cause all of the repub­lic’s in­sti­tu­tions had be­come in­de­pen­dent of Moscow and the Party’s man­ag­ing role was null and void, al­though it was still in the Soviet Con­sti­tu­tion.”

In ad­di­tion, Art. 7 had been changed in Oc­to­ber, with the pro­vi­sion on unions rewrit­ten as an ar­ti­cle on com­mu­nity or­ga­ni­za­tions and a multi-party sys­tem. The sec­tion on the eco­nomic sys­tem, which des­ig­nated the Ukrainian SSR econ­omy as part of the over­all soviet econ­omy, was re­moved com­pletely. One of the ar­ti­cles es­tab­lished the dom­i­nance of Ukrainian SSR laws on the ter­ri­tory of Ukraine and that soviet laws con­tin­ued to be in ef­fect in Ukraine only where they did not con­flict with Ukrainian laws. It was now pro­hib­ited to send Ukrainian draftees to serve be­yond the Ukrainian SSR. Fi­nally, the Ukrainian Supreme Court be­came the high­est court in the land and no longer sent cases to Moscow for re­view. In­stead of a Con­sti­tu­tional Over­sight Com­mit­tee, the Rada an­nounced that a Con­sti­tu­tional Court would be set up.

Shyshkin also points out that many changes were made to the pros­e­cu­to­rial sys­tem. “The Pros­e­cu­tor’s Of­fice was the only in­sti­tu­tion whose top of­fi­cials were ap­pointed di­rectly from Moscow,” he ex­plains. “We’re talk­ing not even about ap­proval, as it was with other agen­cies, but the ac­tual se­lec­tion and ap­point­ment. All the other top po­si­tions were ap­pointed in Kyiv. In­stead, the re­gional pros­e­cu­tors of all the soviet re­publics and oblasts were ap­pointed by the Pros­e­cu­tor Gen­eral of the USSR, and those pros­e­cu­tors ap­pointed all the lo­cal pros­e­cu­tors, with the ap­proval of the soviet PGO. The Pros­e­cu­tor’s of­fices and the De­fense Min­istry, be­cause there was no equiv­a­lent min­istry at the repub­lic level, were the two main pil­lars on which the em­pire stood. So we es­tab­lished the of­fice of the Pros­e­cu­tor Gen­eral of the Ukrainian SSR, who was ap­pointed by the Ukrainian leg­is­la­ture. So, on Oc­to­ber 24, 1990, we be­came a con­sti­tu­tion­ally in­de­pen­dent na­tion.”

In or­der for these changes to pass, the Rada needed to muster 300 votes, just like today. What helped back then was that the Com­mu­nist Party of the Soviet Union was no longer a mono­lith but splin­tered along many lines: The com­mu­nists in­cluded con­ser­va­tives, like the ones who at­tempted the Au­gust putsch in 1991, and pro­gres­sives, who ei­ther joined the Peo­ple’s Coun­cil from the Demo­cratic plat­form of the CPSU or sim­ply sup­ported the evo­lu­tion of so­ci­ety, ac­cord­ing to Shyshkin.

There was also a group of com­mu­nists whom I would call ‘dis­ci­plined,’” he ex­plains. “The con­cept of a state based on the rule of law first ap­peared in the CPSU’s Party doc­u­ments dur­ing the 19th Congress. There, it was an­nounced that the Soviet Union was trans­form­ing into a rule-of-law so­ci­ety. And so more Party doc­u­ments ap­peared that were ori­ented to­wards this shift. Hu­man rights be­came an im­por­tant fac­tor. In the 1978 Soviet Con­sti­tu­tion, the word ‘per­son’ does not even ap­pear, only the word ‘cit­i­zen,’ and so ‘hu­man rights’ were pre­sented only as ‘cit­i­zen rights.’ And yet hu­man rights be­gan to dom­i­nate when it came to mak­ing a rule-of-law state. That’s why the part of com­mu­nists who were dis­ci­plined about en­forc­ing Party doc­u­ments was also in fa­vor of change. They did not sup­port the idea of a na­tion state, but they sup­ported changes to the hu­man rights as­pect. With­out them, we would never have been able to elim­i­nate Art. 6.” That was the Ar­ti­cle that es­tab­lished the top role of the CPSU.

THE RISE OF THE PRES­I­DENCY

In 1990, the Ukrainian SSR was turn­ing into a real, not just a nom­i­nal par­lia­men­tary repub­lic, as be­fore. The Verkhovna Rada now ap­pointed the Gov­ern­ment, judges and the Pros­e­cu­tor Gen­eral. The ques­tion of es­tab­lish­ing a pres­i­dency had not been raised yet, but

IN 1990, THE UKRAINIAN SSR WAS TURN­ING INTO A REAL, NOT JUST A NOM­I­NAL PAR­LIA­MEN­TARY REPUB­LIC, AS BE­FORE. THE VERKHOVNA RADA NOW AP­POINTED THE GOV­ERN­MENT, JUDGES AND THE PROS­E­CU­TOR GEN­ERAL

im­me­di­ately came up in 1991, just be­fore the fi­nal dec­la­ra­tion of in­de­pen­dence.

“At that time, the sense was that a par­lia­men­tary repub­lic would not be good,” says Shyshkin. “As an ex­am­ple, they took the ex­pe­ri­ence of France’s Fourth Repub­lic, which was par­lia­men­tary, and proved in­ef­fec­tual af­ter WWII, then the French econ­omy was in col­lapse and its colo­nial sys­tem still in place. The ar­gu­ment was that, at a time of ma­jor so­cial and po­lit­i­cal up­heaval, the coun­try needed a strong, con­cen­trated gov­ern­ment. This was the for­eign pol­icy fac­tor that made this con­cept dom­i­nate. In ad­di­tion, its sup­port­ers be­lieved that pro­gres­sive demo­cratic forces might gain the pres­i­dency.

“The thing was that Donetsk and Luhansk Oblasts were still vot­ing for com­mu­nists to the Rada al­most ex­clu­sively,” Shyshkin ex­plains. “By con­trast, three of the 11 MPs from Kirovohrad Oblast were al­ready mem­bers of the Peo­ple’s Coun­cil, and two more fa­vored it. The be­lief was that it would be dif­fi­cult to over­come the af­ter­math of the soviet era through the leg­is­la­ture, whereas with a pres­i­den­tial form of gov­ern­ment it would be doable. An au­thor­i­tar­ian pres­i­dency was ex­pected to work in fa­vor of state­hood.

“What’s more, this po­si­tion was fa­vored by Vi­ach­eslav Chornovil and a sig­nif­i­cant num­ber of Rukh mem­bers, the Repub­li­cans and the Party of Demo­cratic Re­vival of Ukraine1, to which I be­longed,” Shyshkin re­calls. “I wasn’t en­am­ored with the idea and I pointed out that there were some risks. I wasn’t re­ally a fan of a pres­i­den­tial repub­lic in the way that it formed in Ukraine, just like I’m not a fan of the French model with its very pow­er­ful pres­i­dent. At the time, there were se­ri­ous ar­gu­ments in fa­vor of a cen­tral­ized gov­ern­ment, as a tem­po­rary mea­sure un­til Ukraine reached sus­tain­able growth. The pro-im­pe­rial com­mu­nists were against the idea of a pres­i­dent be­cause they saw this as lead­ing to the fi­nal col­lapse of the USSR, ar­gu­ing that a sin­gle state could not have sev­eral pres­i­dents. There can be dif­fer­ent struc­tures, but not pres­i­dents.”

SHIFT­ING POW­ERS

In July 1991, the Verkhovna Rada voted to estab­lish the post of pres­i­dent. The pow­ers of the pres­i­dent that were be­stowed on Leonid Kravchuk were nar­rower than those that were soon to be granted to Leonid Kuchma. For one thing, Ukraine’s first pres­i­dent did not nom­i­nate the Pros­e­cu­tor or judges, and he needed the ap­proval of the leg­is­la­ture not just to ap­point a premier, but for a slew of key min­istries. At the same time, says Vik­tor Shyshkin, it’s dif­fi­cult to com­pare the pow­ers of the dif­fer­ent pres­i­dents: “You might say that the pow­ers of the pres­i­dent in 1991 were some­where be­tween those in 1996 and 2004. In re­al­ity, it’s very hard to judge who of the pres­i­dents was ac­tu­ally weaker or

The PDRU had been formed by the DemPlat­form mem­bers in the CPSU.

stronger, Kravchuk, Kuchma or Yushchenko. They served in dif­fer­ent le­gal and so­cio-po­lit­i­cal en­vi­ron­ments.

“Dur­ing Kravchuk’s pres­i­dency, the Soviet Union fell apart and he had to build a state and its in­sti­tu­tions, and to build re­la­tions with other coun­tries,” he con­tin­ues. “It re­ally was the birth of a na­tion that sub­se­quent pres­i­dents in­her­ited. This is what was par­tic­u­lar in 1990-1991. On a strictly leg­isla­tive level, it’s im­pos­si­ble to com­pare them, be­cause even the coun­try’s laws re­flected dif­fer­ent so­cial re­la­tions.”

The pow­ers of Ukraine’s Head of State were sig­nif­i­cantly ex­panded al­ready in 1995, with the sign­ing of the “Con­sti­tu­tional Agree­ment be­tween the Verkhovna Rada and the Pres­i­dent.” This was part of the grad­ual shap­ing of the fu­ture Con­sti­tu­tion of Ukraine. There were con­stant dis­cus­sions about the way the coun­try should be gov­erned, the pow­ers of the pres­i­dent, the econ­omy, the for­eign pol­icy vector, and nu­clear sta­tus— all of which had to be cov­ered in the new Con­sti­tu­tion. Added to that was the sta­tus of Crimea that was re­flected in the Ba­sic Law. In 1994, a new Verkhovna Rada was elected, but once again, no ver­sion of the draft Con­sti­tu­tion made it even through the Con­sti­tu­tional Com­mis­sion it­self. At this point, the sug­ges­tion was made to have a tem­po­rary Con­sti­tu­tional Agree­ment that would clearly estab­lish the pow­ers of the leg­isla­tive and ex­ec­u­tive branches of power.

“I think that this is how we un­der­mined the foun­da­tion of Ukrainian law,” says Shyshkin. “You can’t abuse the Con­sti­tu­tion, no mat­ter what the rea­sons. Some say that this was the only way out of a dead end. I don’t see that. The same govern­ing struc­tures re­mained in place, but some­one was sim­ply given more pow­ers.

“There’s an­other point here,” adds Shyshkin. “Today, many Ukraini­ans talk about a so­cial con­tract. But who’s sup­posed to agree to it with whom? It seems that there are dis­agree­ments even about this. We now have three pos­si­ble ap­proaches. The first one is that peo­ple agree among them­selves about au­thor­i­ties, pow­ers and so on. Typ­i­cally this is done through a ref­er­en­dum. Sec­ond, the gov­ern­ment agrees with the peo­ple. All our Con­sti­tu­tions have been based on this kind of an agree­ment: the gov­ern­ment gave us a Con­sti­tu­tion and the peo­ple agreed to it. The gov­ern­ment has the right to do this as it is elected by the peo­ple and rep­re­sents them.

“The third op­tion is that those in power agree among them­selves, Shyshkin con­cludes. “This is the worst sce­nario: the peo­ple don’t even count. The leg­is­la­ture ne­go­ti­ates with the pres­i­dent who they are go­ing to divvy up some­thing. That’s what the “Con­sti­tu­tional Agree­ment” was about and that’s why I’m dead against it. If we talk about a party to the agree­ment, such as the Pres­i­dent and the Rada, then it’s ob­vi­ous that the Rada has a lot more to lose from such an agree­ment.”

THE RITE OF PAS­SAGE

In the end, a new Con­sti­tu­tion was passed, ex­actly one year later, and the Agree­ment ex­pired. Of course, the new Ba­sic Law re­flected the greater pow­ers granted to Pres­i­dent Kuchma that were even­tu­ally taken back by Vik­tor Yanukovych through the Con­sti­tu­tional Court.

“The Con­sti­tu­tion en­shrined the pow­ers granted to the pres­i­dent in 1995,” says Shyshkin. “It was a com­pro­mise that law­mak­ers agreed to in or­der to get the nec­es­sary two-thirds vote: 300. And it most cer­tainly was a com­pro­mise Con­sti­tu­tion. Even a ge­nius like Leonardo da Vinci couldn’t be ex­pected to build a pro­pel­ler like the one in his draw­ings be­cause so­ci­ety sim­ply wasn’t ready for it. The 1996 Con­sti­tu­tion was a prod­uct of its times and I would call it a pos­i­tive event. The ques­tion of lan­guage was a com­pro­mise; the is­sues of land, prop­erty and Crimea were all com­pro­mises.

“To some ex­tent it was less ‘pro-pres­i­den­tial’ than the Con­sti­tu­tional Agree­ment,” notes Shyshkin. “Take the High Coun­cil of Jus­tice. It had not been part of the Con­sti­tu­tional Agree­ment be­cause the con­cept only emerged in the spring of 1996. The pres­i­dent is sup­posed to chair this Coun­cil, be­cause it was based on the French model, where the pres­i­dent nom­i­nally chairs it al­though he doesn’t nec­es­sar­ily at­tend its ses­sions. The plan was that the Coun­cil would in­clude 21 mem­bers, with the pres­i­dent at the head. This is the kind of thing I’m talk­ing about. The Con­sti­tu­tion was voted on ar­ti­cle by ar­ti­cle, and even sen­tence by sen­tence. Dur­ing the de­bate of Art. 131, the pres­i­dent was re­moved and the Coun­cil was es­tab­lished with 20 mem­bers. Then the point was made that 20 was not di­vis­i­ble by 3, al­though dif­fer­ent or­ga­ni­za­tions con­trib­uted 3 mem­bers each. Then they voted for the PGO to con­trib­ute only two mem­bers. This was the kind of in­ci­dent that re­flected re­la­tions be­tween the leg­is­la­ture and the pres­i­dent at the time: far from ideal and, un­like the cur­rent Rada, the 1996 Rada of­ten chal­lenged him.”

If not for the squab­bles and dis­agree­ments in the Rada, the Con­sti­tu­tion might have passed much ear­lier, says Shyshkin. Back in 1993, an of­fi­cial ver­sion was pub­lished in the press. There were other ver­sions, too, whose gen­eral fea­tures were sim­i­lar. “The com­mu­nists, of course, did not have the of­fice of the pres­i­dent,” Shyshkin goes on. “Their ver­sion was along the lines of ‘all power to the sovi­ets [coun­cils]’ and granted dif­fer­ent sta­tus to the Rus­sian lan­guage. Still, in terms of their con­struc­tive ap­proach to the state it­self, all ver­sions were sim­i­lar.” When the of­fi­cial draft Con­sti­tu­tion was be­ing drawn up, sev­eral thou­sand propo­si­tions, ad­di­tions, changes and chal­lenges were submitted.

But what is not true is the myth that the Con­sti­tu­tion was ap­proved in a sin­gle night on June 28. “The Con­sti­tu­tional Com­mis­sion, which had been set up again af­ter the 1994 VR elec­tion, found it­self in a stale­mate and Vadym Het­man took the bull by the horns,” Shyshkin re­calls. “Among the lib­er­als, who at that point were in the ma­jor­ity, he was very highly re­garded. Het­man an­nounced that he was tak­ing upon him­self re­spon­si­bil­ity for set­ting up a work­ing group to draft a fi­nal ver­sion of the Con­sti­tu­tion. In this par­tic­u­lar in­stance, the Speaker, So­cial­ist Party leader Olek­sandr Moroz, sup­ported him. The group in­cluded rep­re­sen­ta­tives of all the fac­tions and con­sul­tants, one of whom was me. By the end of May, if I re­mem­ber cor­rectly, we pub­lished the draft that went on to be­come the new Con­sti­tu­tion.

“What’s more, we had been get­ting ap­proval for bits and pieces of the pre­vi­ous two weeks as well,” says Shyshkin. “When they say that the Con­sti­tu­tion was passed in a sin­gle night, it’s sim­ply not true. Prior to that night, 40 ar­ti­cles had been ap­proved over two weeks. Of course, these weren’t the most con­tro­ver­sial ar­ti­cles, such as the pro­vi­sions on the sta­tus of Crimea, the is­sue of own­er­ship, and the lan­guage is­sue. Nev­er­the­less, we man­aged to ap­prove one quar­ter of the 161 ar­ti­cles in Ukraine’s Ba­sic Law. The vot­ing came for not just ev­ery ar­ti­cle, but for sec­tions, para­graphs and even sen­tences. If a sen­tence raised ques­tions, then there might even be a vote over spe­cific words. By June 28, mostly the ar­ti­cles on hu­man rights and the elec­toral sys­tem had been ap­proved. That night did, in­deed, in­volve a kind of psy­cho­log­i­cal break­through. As chair off the Tem­po­rary Spe­cial Com­mis­sion Mykhailo Sy­rota took re­spon­si­bil­ity for the Rada on him­self, declar­ing that he would be re­port­ing ‘un­til the rooster crows.’”

Since the Con­sti­tu­tion was passed, Ukraine’s Ba­sic Law has been amended five times, the first time com­ing 8 years later, dur­ing the Or­ange Rev­o­lu­tion, in De­cem­ber 2004. Un­for­tu­nately, it’s hard to call the process of amend­ing the Con­sti­tu­tion trans­par­ent or con­sis­tent: many of them have taken place in emer­gency mode. As a re­sult, the Con­sti­tu­tional Court de­clared the 2004 amend­ments null and void when Yanukovych came to of­fice, giv­ing him the ex­panded pow­ers of the Kuchma years. Af­ter he fled in 2014, the Rada quickly re­versed the Court’s de­ci­sion and brought the 2004 pro­vi­sions into force again. But there are no guar­an­tees that these amend­ments will not again be de­clared un­con­sti­tu­tional at some point.

UKRAINE'S FIRST PRES­I­DENT DID NOT NOM­I­NATE THE PROS­E­CU­TOR OR JUDGES, AND HE NEEDED THE AP­PROVAL OF THE LEG­IS­LA­TURE NOT JUST TO AP­POINT A PREMIER, BUT FOR A SLEW OF KEY MIN­ISTRIES

A prece­dent of unity. Such was the ac­cent of the June 28, 1996 speeches by VR Speaker Olek­sandr Moroz and Pres­i­dent Leonid Kuchma

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