Viktor Yushchenko is definitely set to change the Constitution and sees a national referendum as the only possible way. He means to have presidential powers increased. If he succeeds, his next initiative will be another preterm parliamentary election.

This is the opinion of a participant in President Yushchenko’s meeting with the leaders of all political forces represented in the parliament. In his traditionally lengthy monologue Yushchenko insistently recommended them to take part in setting up the National Constitutional Council. He decreed that it be set up on December 27, 2007, and charged it with drafting a new version of the Organic Law. He put himself at the head of that structure and authorized himself to staff it. (Yushchenko suggested that the NCC be composed of representatives of political parties, delegates from the Crimean parliament and local self-governments, loyal members of the National Science Academy, and representatives of human rights organizations.)

That the NCC is a nonfunctional body is evident to all except its creator who states bluntly, “The Constitution must not be written for a certain individual… it must undergo transparent procedures so that the people trust the new Constitution.” Are any comments needed?

Fourteen months ago (on December 2, 2006) Yushchenko pompously announced the establishment of a similar structure which he named a “constitutional commission.” His political opponents reacted vehemently. MP Raisa Bogatyryova [then leader of the Regions Party faction] said, “To call for a war by adopting a new Constitution through a national referendum is to demonstrate utter disdain for the Constitution and the rule of law.” Hopefully, she has not changed her mind now that Yushchenko has appointed her Secretary of the National Security and Defense Council. Apart from this and similar statements, the opposition simply ignored the President’s initiative. Now things are different. The Communists and the Regions Party have stated their readiness to delegate their representatives to the NCC. Both understand perfectly well that the NCC is just a makeshift screen. So why do they need it?

The formal explanation is as follows. Yanukovych and Symonenko want to use the NCC as:

- a floor for exchanging opinions;

- a rostrum for criticizing the President’s idea;

- a source of information on the process.

Apparently, both the Communists and the “Donetsk guys” are going to fish for firsthand information from Bankova. Of course, the “frondeurs” know that Yushchenko means to enhance presidential powers through a national referendum, but they have a very vague idea of specific details (deadlines, names of executives, etc.) and undercurrents.

Everybody knows that there won’t be any practical work in the council’s frameworks. Its members are simply supposed to approve the text written by Yushchenko’s lawyers. And even if the opposition part of the NCC refuses to be involved in such a “transparent procedure”, Yushchenko will simply wash his hands of it and legalize the new Constitution through a national referendum.

If that happens, the Communists and the Regions Party plan to offer alternative versions. The Communists propose eliminating the presidency. The RP proposes several radical changes (though not yet formulated conclusively). It supports the idea of their “comrades” but doubts that any alternative version will be submitted to the people’s judgment. Its leaders are not sure that the people would vote for eliminating the presidency in Ukraine. Besides, they have their own presidential ambitions…

In a word, the opposition camp is in a state of anxious expectation, waiting for the constitutional council’s maiden session in mid-February. It is going to coincide with Yushchenko’s State of the Union address, the larger part of which is expected to address constitutional reform.
At Third Draft

According to sources with the Presidential Secretariat, the text of the new Constitution is to be completed by the end of April and the referendum is slated tentatively for June 28 – the twelfth anniversary of the Constitution (which looks at least as derision).

The same sources do not rule out another preterm parliamentary election in December. As they explain, the authors of the new Constitution propose dividing the parliament into two houses or removing 100 seats from it. Nobody knows which Yushchenko will opt for, but no one in his chancellery doubts that the people will support either initiative. The people’s will is ultimate and sacred, and since the present parliament fits into neither format, it will have to be dissolved.

The final say is, of course, with the Constitutional Court. However, as recent developments have shown, in this country it is possible to dissolve the parliament without any legal grounds.

This is not the first attempt to change the Constitution with the help of a referendum. In 2000 President Leonid Kuchma tried to call a plebiscite which was supposed to legalize the adoption of the Constitution through a national referendum. The Constitutional Court invalidated his initiative. Five years later (under Yushchenko’s presidency) the same court passed a different verdict: “The people have the exclusive right to determine or alter the constitutional order in Ukraine through a national referendum…”

Now top officials in Yushchenko’s chancellery are expecting “a historic decision” from the Constitutional Court which should sound like this: the people have the exclusive honor and sacred duty to adopt a new Constitution at a referendum.

The key word is “new”. In accordance with the active Constitution, any amendments to it may only be made by the parliament. Yushchenko knows that he can hardly count on this parliament. He said recently, “If it’s about a new edition, you understand that it’s not in the parliament’s competence, in accordance with the Constitution.” This means that the active Constitution does not mention the procedure of adopting a new Constitution. Therefore, even if the Constitutional Court keeps silent, Yushchenko may just as well refer to the 2005 verdict and interpret the people’s “exclusive right to determine or alter the constitutional order” as the possibility of adopting a new Constitution at a referendum.

Unlike Yushchenko’s personal advisers, other legal experts note that his initiative runs counter to one of the basic legal principles – continuity. According to it, a new edition has to proceed from the previous one.
Two Full Houses

Yushchenko reiterates that his prime concern is “to strengthen the constitutional guarantees of civil rights and freedoms” but he has not decided yet how to strengthen them. When he was signing his decree on establishing the National Constitutional Council, he had two versions of constitutional changes drafted by two different groups. One was led by Volodymyr Shapoval and the other – by Stepan Havrysh. In any country it would look strange if a new constitution were drafted by the chairman of the constitutional court (Shapoval) or the undersecretary of the national security and defense council (Havrysh). But Ukraine has witnessed far stranger turns…

Neither version suits the customer completely, so his final choice might partially depend on Igor Pukshyn, deputy chief of the presidential chancellery and informal “process supervisor”. It is thanks to Pukshyn that Yushchenko increasingly inclines to the two-chamber parliamentary model.

Havrysh, who always trims his sail to the political wind, immediately took on this idea. Interestingly, five years ago he spoke so passionately and convincingly for the idea of a parliamentary republic where the president would be elected by the parliament… But, as wise Romans said, “tempora mutantur”. Today he is trying to convince everybody that “the center of strategic decision-making should be located on the presidential field”.

In December, trying to “outstrip” Shapoval, he made a sensational discovery in the field of law. He said that the new Constitution, if adopted at a national referendum, would not have to be endorsed by the president or legitimized by the parliament. According to him, the old Constitution would become invalid right away (!), the new one would take effect automatically (!!), and the key validating document would be the Central Election Commission’s protocol (!!!) Such an idea at least sounds eccentric. The fact that no one has shared it only proves its questionability.

In his version of the new Constitution Havrysh proposes a two-chamber parliament where three-fourths of the members of the lower house would be elected from party rolls and the rest – from single-mandate constituencies. The lower house would be charged with lawmaking and partial control over the executive branch. The upper house would endorse (or veto) key bills passed by the lower house. The total number of seats in that two-chamber parliament would remain the same as now (450). Members of the lower house would be elected for four years and members of the upper house for six and exclusively from single-mandate constituencies. Rotation of MPs would take place every three years.

Practically all experts who have read Havrysh’s version are extremely negative about it and say that Shapoval’s version has more chance. None of them believes that there will be a cardinally new version besides these two.

It is true that in 1996 the Constitution was adopted overnight – “in an emergency mode” and so were amendments to it in December 2004. We should not forget, however, that it has taken years of highly professional work and a good deal of political compromise to write and polish each word. Of course, neither the original nor the amended version was perfect, but they were adequate to the contemporary balance of political forces in the country. The attempt to adopt a new version without reckoning with all key players and previous experience is vicious. So are any references to “the will of the people as the sole source of power in the state.” Exactly three years ago, in February 2005, Yushchenko stated, “We are against referendums to which someone resorts ‘on the people’s behalf’ in an attempt to change the Constitution to his liking.” Tempora mutantur, though…
Version Two: Freedom-Free

Megalomania is a horrible disease, especially when it affects politicians. An ordinary citizen may imagine himself as Napoleon, the Pope, or Claudia Schiffer. A political leader who contracts this disease immediately equates himself to the nation. Yushchenko’s political “evolution” proves this diagnosis.

The philosophy of Shapoval’s version of the new Constitution is seen very clearly from the very first lines of the preamble: “The people of Ukraine … adopt this Constitution.” The active Constitution says “On behalf of the people of Ukraine the Verkhovna Rada … adopts this Constitution”. The authors suggested “the people of Ukraine” as a new subject because they were a priori oriented at a referendum. Hence a question: did the people authorize anyone to write a new Constitution on their behalf? If not, then isn’t this an attempt to usurp the people’s will?

There are serious questions to other innovations. Article 1 of the active Constitution defines Ukraine as “a sovereign, independent, democratic, social, and law-governed state.” In the proposed version the words “sovereign” and “independent” are omitted. Hopefully, nobody infringes on this country’s independence and sovereignty, but this omission hardly looks justified.

More changes – more questions. Article 3 states civil rights and freedoms among the main obligations of the state. In the proposed version the word “freedoms” is omitted. Is there a hidden implication? The authors also decided to relieve the state of another important obligation – “preservation of the gene pool of the Ukrainian nation.” This may mean two things: either everything is okay with our gene pool or everyone has simply given up on this problem. The active Constitution states protection of sovereignty and territorial integrity as “the cause of the entire Ukrainian people.” Why is it not in the new version?

The proposed changes that follow can really make one gasp. Article 21 reads: “On the basis of international agreements Ukraine may cede a part of its sovereign rights to European interstate associations.” What associations? When exactly may Ukraine cede its sovereign rights – before, during, or after joining those associations? The new norm gives no answer but only mentions some “international agreements.” Any jurist will say that sovereignty as a legal term demands precise wording, not vague phrases.

The “modernized” version of Article 102 looks strange, too. So far, the President of Ukraine has been “the guarantor of sovereignty, territorial integrity, compliance with the Constitution, and observance of civil rights and freedoms”. The new version does not mention any rights or freedoms. Yushchenko has repeatedly criticized the Constitution for “too many redundancies” and insisted on “thinning it out.” As it turns out, the President’s duty to guarantee the rights and freedoms of his citizens is redundant…

The presidential decree on establishing the National Constitutional Council begins with the words “In order to strengthen the constitutional guarantees of civil rights and freedoms…” Strange, but the text, which was written in order to strengthen these guarantees, never even mentions them.

The active Constitution prohibits any limitation or deprivation of civil rights. In particular, Article 8 guarantees Ukrainian citizens the right to defend their rights in court. Article 8 in the text written by Shapoval and his team only guarantees protection of rights but does not mention the word “court.” This omission may seem insignificant, but several authoritative jurists said as one that it did imply “limitation of civil rights.”

Furthermore, the draft version does not guarantee reparation of moral and material damages sustained as a result of collection or use of personal information and does not guarantee social security to military servicemen and their families (which the active Constitution does).

The active Constitution provides for substitution of regular military service with alternative service in case a conscript can not take up arms for religious reasons. The draft version does not. What should such citizens do until Ukraine switches from conscription to contract service?
Everything is done in Favor of the Man! And we know This Man

It is hard to explain why the norm about using military forces has been changed. Until now, it was forbidden to employ the army in order “to remove the bodies of state power or to hamper their activities.” In the new project, this ban is cancelled.

If this new project becomes the Constitution of Ukraine, the number of MPs will be reduced by 100 and their term will be four years instead of five (the same as it was before the political reform).

According to the new draft of the constitution, it will be possible to resolve a considerable number of state problems through nation-wide referendum. It is a very praiseworthy initiative. However, their initiative would be more useful if it were directed toward preparation of a very important law – the law on referendum, which is necessary for conducting nation-wide referendums.

But they are not bothered by that. Their proposal is rather three-dimensional – one and half million active citizens can amend the Constitution or cancel the law. It will be possible to dissolve the parliament with the help of referendum. After all, such a desirable norm for every president appeared in the text of the political Bible.

The rights of the president are broadened in direct proportion to reduction of the MPs’ rights. According to the project, the parliament does not appoint the head of the Cabinet of Ministers and the members of the Cabinet, but only “approves the decision on the candidacy of the Prime Minister.” The Prime Minister and the ministers (the post of vice prime minister is proposed to be abolished) are appointed by the presidential decree. The president also appoints the head of Security Service and the head of General Prosecutor’s Office and removes them without consulting parliament. The president nominates the judges of the Constitutional Court too. He is supposed to chair at the Cabinet of Ministers’ meetings on foreign policy, defense or national security matters.

It would take a long time to mention all the innovations of the new draft version of the constitution. However, I think that’s quite enough to be impressed. The critics of parlamentarism say that the parliamentary-presidential form of government does not justify any hope. Viktor Andreyovych agrees with them. However, I am not sure that the document proposed by his lawyers can “create a balanced system of state power.”

Leonid Danylovych Kuchma didn’t even dream about such “balance.”
Article is provided by Zerkalo nedeli weekly

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