Ukraine’s constitution: reform or crisis?

Constitutional reform was supposed to put post-Maidan Ukraine on a firmly democratic footing. This process, however, has gone seriously off track.

(opendemocracy.net – Mikhail Minakov, Maryna Stavniichuk – February 16, 2016)

Mikhail Minakov is Associate Professor at Kyiv-Mohyla Academy and President of the Foundation for Good Politics, Kyiv. He is also director of the Krytyka Institute, and editor-in-chief of the journal Ideology and Politics. Maryna Stavniichuk is a Ukrainian politician and member of the Venice Commission (2009-2013).

Today, Ukraine is a country that can lose its chance at democracy. The victory of Euromaidan provided Ukrainian citizens, and our post-Soviet neighbours, with the prospect of building a polity that could grant political liberties, economic freedoms and local self-governance – an important example in a region of dictatorships. Two years later, Ukraine’s democratic dream seems to be as far from reality as in the bloody February of 2014.

In an array of reforms that were promised by the country’s post-revolutionary leadership, constitutional reform was a key state-building initiative. Constitutional reform should have ensured that Ukraine would not find itself in an authoritarian dead-end and painful revolution for the third time in its 25 years of independence.

Now, in February 2016, it is time to say that the direction and method of constitutional reform was wrong and misleading. Two precious years have passed in vain. And an authoritarian alternative remains possible in a country with weak democratic institutions.

This conclusion may seem far-fetched in comparison to positive assessments of two packages of constitutional amendments – decentralisation and reform of the judiciary – that were promoted by President Petro Poroshenko. For example, in October 2015, experts of the European Commission for Democracy through Law (hereinafter, the Venice Commission) admitted that “the latest version of the constitutional amendments prepared by the Working Group on the Judiciary of the Constitutional Commission of Ukraine is very positive and well-drafted, and deserves to be fully supported.”

Some months earlier, the Venice Commission also acknowledged that “[t]he draft amendments introduce a form of decentralisation in the exercise of state power which is largely compatible with the European Charter of Local Self-government.” Ukraine’s partners from western democracies also continue to praise Ukrainian reforms, albeit with increasing alarm.

Now, why do we assess the reform in such negative terms? Here are our arguments.

Who and how changes the Constitution?

After Euromaidan, Ukraine was presented with a choice in regard to constitutional reform. The new polity could have been built through either a new constitutional assembly, or by applying the existing constitutional mechanism to update the current constitution. Whichever reasons were used to deny the radical choice in 2014, the alternative to amend the existing constitution (in accord with the procedure its prescribes) still provided the possibility for democratic process and result.

The current Ukrainian constitution has a clear stipulation on the process of its amendments (Chapter 13, articles 154-159):

• Amendments can be proposed by the president or by a 150+ group of MPs
• The approval of amendments is to be made by parliament twice: first time by a simple vote (226), and then by 300 votes at “the next session in turn”
• If these amendments are not approved at “the next session in turn”, they can be approved no less then a year after voting on them in parliament
• Before the voting in parliament, the Constitutional Court has to take preventive constitutional control by reviewing the draft amendments in relation to Articles 157 and 158: amendments cannot decrease or violate human rights, civil liberties, Ukrainian independence and/or territorial integrity of Ukraine; amendments must follow the procedure. Furthermore, the constitution cannot be amended in situation of the martial law or a state of emergency

In the realpolitik of post-Maidan Ukraine, however, these stipulations are going on through a very disturbing process. Both packages of amendments were finalised by anonymous groups in the depths of the Presidential Administration. The prepared documents were submitted to the Constitutional Commission, a body called to givesome additional legitimacy and transparency to the process of constitutional reform, as demanded by civic activists.

The Commission included recognised experts in constitutional law, MPs and civic activists. It was the place to help newly elected president and parliament to make the constitutional process democratic, thought-out and effective.

Despite expectations, the role of the Constitutional Commission was limited to formal support of the president’s initiatives. On several instances, and only after the Commission’s formal support, members of the Commission expressed their “personal opinion” on the president’s constitutional drafts in public . But the voice of dissidents was heard neither by president Poroshenko, nor by parliament.

One such example of dissent was the “personal opinion” of Oksana Syroiid, vice-speaker of Verkhovna Rada and a member of the Constitutional Commission. In July 2015, Syroiid was one of many voices against the norms contained within the decentralisation amendments that are dangerous for Ukraine’s democracy and territorial integrity.

The role of Constitutional Court has been limited to an institution of formal approval of whatever comes from the Presidential Administration. The most recent scandalous decision of the Constitutional Commission was made on 20 January, 2016, when the Constitutional Court cleared the package of amendments to the judiciary without any remarks. And after that, 10 of 13 judges of the Constitutional Court who reviewed the case publicly criticised the legislative initiative.

The most critical opinion was presented by Mykola Melnyk, a member of the Constitutional Court, who blamed the Court for being too formalistic and not noticing the decrease of civil rights and liberties in the draft constitutional amendments.

So far, the Constitutional Court has continued its long history of loyalty to presidents, and betrayal of civil liberties in Ukraine, which it committed on several occasions under Viktor Yanukovych (reinstating an older version of Ukraine’s Constitution in 2010 that increased presidential powers) and Leonid Kuchma (such as the decision to permit to Kuchma to run for the third term in spite of direct prohibition in the Constitution).

The role of the Ukrainian parliament in the constitutional reform is unjustly limited. Once brave defenders of democracy and Ukraine’s European choice in the days of Euromaidan, new MPs have slowly turned into humble voting devices for the initiatives above. It seems that political aims justify remarkably biased legislative decisions. Instead of a democratic tool for government oversight, the pro-European ruling coalition has become a mechanism for voting in favour of the president’s constitutional initiatives.

The most striking example of anti-constitutional behaviour of the parliament happened just several days ago. The pro-presidential majority of MPs supported changes to parliamentary procedures, and permitted the parliament to postpone final approval of decentralisation amendments to the constitution despite the constitutional demand. It was made partially due to the fact that the controversial norms of the proposed constitutional amendments cannot gather the necessary 300 votes even in the loyal parliament.

Consequently, the role of president in the constitutional reform has become hegemonic. The presidential institution has often been a source of anti-democratic initiatives in post-Soviet states. This pattern is now being repeated in Ukraine. The exceptional position of president in the constitutional process is reflected in the norms that increase powers of the president, decrease role of parliament and limit – or even reverse – the role of local governments.

Again, a recent example: the abolition of parliament’s oversight over the office of General Prosecutor was one of the issues that provoked an otherwise obedient parliament to mildly disagree with the president upon the judiciary package. In late January, president Poroshenko had to propose changing judiciary amendments (which by that time had already been cleared by the Constitutional Court and Venice Commission) and return the right of the parliament to control General Prosecutor. Parliament supported this bargain, and demanded the Constitutional Court to review the change at an unprecedented speed. The court did so just within one day.

The process of amending Ukraine’s constitution to create a legal, political and institutional infrastructure for a new democracy has seemingly taken an all too familiar “historical path”, and one that leads to the consolidation of power by the president and a reaction to presidential omnipotence in the form of Maidan.

The constitution of Ukraine is being reformed without wide and inclusive public dialogue. It remains business as usual for a limited number of participants with undisguised hegemony of the president.

What are the aims of constitutional reform?

But it is not only process that is destroying the democratic constitutional reform in Ukraine. Major risks are hidden in the absence of a response on strategic questions: What form of government and state model should we have in Ukraine? How is the rule of law guaranteed? What are the major balances between power branches, as well as central and local governments?

Legal documents still use words like “democracy”, “rule of law”, and “European legal and political culture”. Yet there are disturbing innovations behind this rhetoric, including the establishment of a new presidential “power vertical” with minimal or no control over it included in the amendments.

The current constitution established many imbalances between branches of power, and introduced an institutional conflict within the executive branch. A result of consensus in November 2004 (in the midst of the Orange Revolution), this institutional conflict was expected to limit presidential power by increasing the powers of the prime minister, cabinet and parliament.

Instead, this conflict diminished the efficiency and transparency of government, and increased the role of informal groups in the Ukrainian state. The informal financial-political groups inside the state were allowed to solve the conflicting interests of institutions for their private gain, and the common good remained outside the constitution’s care.

So, constitutional reform had to return the common good back into picture. So far this re-orientation of constitution was expected to be articulated in the form of two packages of amendments – decentralisation and judiciary.

In essence, the decentralisation package of constitutional amendments responds to the demands of citizenry to make the Ukrainian state more responsive to the needs of its population. It was expected that principles of subsidiarity would become dominant in the process of re-balancing the authority of central and local governments. Throughout 2014-2015, there were several modest steps made to provide regional authorities with some budgetary independence.

At the same time, the constitutional amendments create a new structure headed by the president to control local councils, and, if needed, to overrule local decisions. This new vertical has no control over it. The constitutional reform became a field of competition between president Poroshenko and other centres of power, and the president is winning, keeping regions, parliament and the Cabinet of Ministers under his/her influence.

The judiciary part of the constitutional reform was to balance executive and legislature influence over the judiciary, and make justice accessible for all Ukrainian citizens. For decades, the political system and socio-economic model of Ukraine were based on dependent and corrupt courts. To increase the chances for democracy, access to justice and independence of judiciary had to be established.

Instead, for almost two years, the judiciary has remained outside systemic reformation, and under strict political pressure on judges. Throughout this period, political and financial-political groups have promoted distrust towards the judiciary.

After this unjustified delay, the judiciary reform started. Most of its democratic aims and solutions are critically needed today. If supported by parliament, the judiciary will be transparent and independent of politicians, and will be able to provide citizens with justice in reasonable term.

Yet the amendments diminish parliament’s ability of impacting the selection process of judges, while presidential influence remains. The political practices of 2014-2015 shows that this ability will be used to make judges loyal to those in power, and would not increase judicial independence. The Constitutional Court did not notice these loopholes in the amendments.

But the real situation is even worse. The judiciary reform, with its positive and negative innovations, will be considerably delayed. Its norms will not be introduced until 2019. For the next three years, temporary provisions will rule Ukraine’s judiciary with some peculiar rules:

• The Highest Council of Justice, a core body providing transparency and independency for the judiciary, will have to start working only in 2019, or a slightly later. Strangely enough, this date coincides with the presidential elections in Ukraine. So the to-be-democratic judiciary system will start evolve only after the new (or old?) president is elected
• In the intervening period, the president has the privilege to replace judges from one court into another, as well as to establish, restructure and dissolve courts at his discretion
• The judges of the Constitutional Court will remain in place until their term expires. So the independence of this important constitutional body may be delayed for even longer time

The current constitutional reform does not provide Ukrainians with any answers regarding fundamental questions about its political and legal order.

War and legitimacy of constitutional process.

An undeclared war is going on in Ukraine. And it has an impact on the constitutional process and its legitimacy.

• De jure, Ukraine has not declared war against Russia. For this reason, the Constitutional Court decided that the constitutional reform may go ahead
• The Minsk-22 agreements have a direct impact on today’s constitutional process. De facto, Ukraine’s sovereignty in the process of constitutional amendments is limited. External players have a direct impact on its outcomes, especially in the case of self-administration of some territories in Donbas region

The participation of the Venice Commission has also been misused by the managers of constitutional reform. The Commission’s role in the support of constitutional reform could be therapeutic, yet due to manipulations, the Commission was used to increase presidential influence upon the Constitutional Commission and parliament.

For example, in July 2015, the Venice Commission received a package of amendments that was different from what the Constitutional Commission approved. Later, after receiving the commission’s assessment of these amendments, the Rada’s speaker and presidential ally Volodymyr Groisman announced only the positive remarks of European experts; the criticism was hidden from the public. Later, the tragic events outside the Ukrainian parliament on 31 August were directly connected to the untransparent constitutional process and political manipulations of Ukrainian leadership and their political opponents.

Another disturbing case relates to the fact that, a month after the Venice Commission gave its opinion on the judiciary constitutional amendments, these amendments were further elaborated in the presidential administration in a way that all the positive changes were postponed for two to four years.

Conclusions

Constitutional reform in Ukraine is unsatisfactory neither in terms of the quality of the process, nor in its content. The proposed amendments are too humble where they must be brave, and too radical where they should establish a balance of powers. The presidential dominance and a lack of inclusivity in constitutional reform is diminishing the legitimacy of the political order and adding to risky developments in Ukraine.

These drawbacks have naturally provoked debate. After open discussions among experts, politicians and diplomats in December 2015, the European Union Ambassador to Ukraine Jan Tombinski issued a statement calling for Ukraine to draft an entirely new constitution, not just amendments. There is a new initiative of civic activists to re-start the constitutional reform and call for a constitutional assembly to be established. However, so far, these ideas remain at the margins of political processes in Ukraine.

It is time to re-think the approach to constitutional reform in Ukraine. The direction and method of Ukrainian constitutional reform was incorrect and misleading. It does not respond to the critical questions of Ukraine’s democratic and sustainable development; it does not have a vision for country’s prosperous and free future. In procedural part, the constitutional process provided an opportunity for influence from outside country. These drawbacks make the entire constitutional reform a hazardous endeavour that diminishes the formal and all too real democratic and constitutional legitimacy of order in Ukraine, and adds to future risks of existence of our republic.

The parliament must stop manipulations with the constitutional reform and increase its leadership role. The Constitutional Court and president must adhere to their role as guarantors of constitutional order in Ukraine. Ukraine’s state building should not be a hostage of personal ambitions and group interests. The common good and rule of law must be reinstated as orienteers of constitutional reform.

Article also appeared at opendemocracy.net/od-russia/mikhail-minakov-maryna-stavniichuk/ukrainian-constitution-reform-or-crisis bearing the following notice:

This article is published under a Creative Commons Attribution-NonCommercial 4.0 licence. If you have any queries about republishing please contact us. Please check individual images for licensing details.