Former Ukrainian Prime Minister Yulia Tymoshenko and the remainder of the opposition will seek to make international capital out of the recent move to change Ukraine’s Constitution. Yet perhaps they have just cause as the administration has not followed due democratic and parliamentary process and has created a precedent for further changes in the future, thereby undermining the whole credibility of the Ukrainian Constitution.
First, the established process to change the constitution was bypassed: namely 300 lawmakers, not the courts, should vote to agree to change it. Second, the Constitutional Court was not asked to reconsider the 2004 changes in full but selectively. This would enable President Viktor Yanukovych to assume more power while not tying his hands over issues that might restrict him. Thi,s and their total disregard for the rights of the people, do not bode well as it clearly suggests constitutional manipulation as opposed to real reform.
A return to the 1996 constitution could be a positive step as it would clear up many of the ambiguities that have plagued the past five years, especially if the process followed the law and is accompanied by a restoration of the independence of the courts, the rule of law, the regulation of the currently unlimited immunity of members of parliament and a degree of morality in the Verkhovna Rada. Sadly, this is not the case.
In fact we can only speculate as to the president’s intentions as no plans have ever been made public, no manifesto for change has ever been published, let alone voted upon. The people of Ukraine have no idea of their president’s intentions; they can only draw assumptions from his speeches to the international community and hope that he really means what he says. This is not a true democratic process and judged against history it is close to the establishment of, at best, authoritarianism. When coupled with the recent pressure on media owners and international non-government organizations, unwarranted interference by the tax police and restrictions on freedom of assembly, it is cause for concern.
Then-Ukrainian President Leonid Kuchma (C) on Nov. 26, 2004, announces a deal to amend the 1996 constitution, part of a deal to end the Orange Revolution by diluting the presidential powers of his successor, Viktor Yushchenko (L), who prevailed over Viktor Yanukovych (R) despite a rigged presidential election that year. (UNIAN)
Let us assume that the president is serious about democratic reform and truly wants to clear up much of the confusion. He does not need more personal power to achieve this. He could earn himself credit by establishing a transparent all-party constitutional commission with international support to carry out a thorough review and align himself politically to the process. The Venice Commission of the Council of Europe would no doubt assist in this process. Its secretary, Thomas Markert, was polite by describing the recent court decision as “unusual” given that the court declared the constitution invalid after six years of it being in operation.
If we assume that the president wants to restore order in society then a good first step would be to ensure that all Ukrainian citizens are equal under the law. He needs to make corruption in the courts, prosecution services and the police a criminal offense punishable by mandatory prison sentences. He already has the power to do this.
If we assume that he wants Ukraine to be a modern European state, then he can demonstrate this by working according to European norms and European values. Again he does not need more power to achieve this.
Ukraine risks having the worst of all worlds: a leader who has not made his intentions fully clear, political parties that do not represent the people, a parliament that has become a trading floor for business interests, courts that administer justice to the highest bidder and a system where by the national interest has been subordinated to self interest. Changing the constitutional balance of power does not address any of those fundamental issues.
One could argue that if there is to be constitutional change in Ukraine it needs to be root-and-branch, as the whole political system needs reforming. The process needs to be transparent and all-inclusive. It should involve legal and political experts and it should be open to civil society and all political parties. In a democracy, such pivotal decisions should not be rushed through the corridors of power without even a minimum of civil society insight.
The constitution needs to ensure that political parties are rebuilt from the ground up, that all representatives of the people, at local and national level are locally elected using transparent and accountable, proportional representation systems, that members of parliament are public servants with no special privileges and that the present system of buying seats in parliament is outlawed.
The constitution of any nation is a sovereign document of the state that politicians have to learn to live within. It should never be manipulated to serve political or personal interest.
There is of course a faint irony to this whole situation and that is with all the power comes all the responsibility. Therefore if the president’s plans fail to deliver real benefits to the people before the onset of winter then the Ukrainian people will have only one person to blame and we cannot expect them to be forgiving.
Victor Tkachuk is the head of Kyiv-based non-government organization People First Foundation and a former deputy secretary of the National Security and Defense Council of Ukraine.
