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18 August, 2017  ▪  Roman Malko

The Holy Grail

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 post-communist 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.   

RELATED ARTICLE: Constitutional and administrative law expert Ihor Koliushko on who is changing the Constitution today and how  

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.

RELATED ARTICLE: How the Constitution changed as Ukraine went from being part of the Soviet Union to independence

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.

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.

Translated by Anna Korbut

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