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Ukraine needs constitutional change now

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May 7, 2009, 8:55 p.m. | Op-ed — by Victor Yushchenko

Victor Yushchenko

Special to Kyiv Post

President Victor Yushchenko reveals what happened at the backstage of the 2004 Orange Revolution, and it wasn't pretty. I would like to start my article with an assessment of the domestic situation in Ukraine and the challenges prompting my latest political decisions. Here is a bit of background.

In December 2004, the entire world discovered a new Ukraine. United on the spur of the moment, Ukrainians powerfully but nonetheless peacefully voiced their wish to defend the right to elect the top state leadership freely and independently.

One year before, the world saw the inspired faces of Georgians during the Rose Revolution. In their essence, the color revolutions in the former Soviet republics became a logical continuation of the liberation movements in Eastern Europe in the 1980s, known in the history of Europe as velvet.

However, besides brilliant and inspirational victories, global political changes always have complex roots and nuances, which often remain in the shadows behind the scenes but have direct influence on them.

So what happened in Ukraine in December 2004, at the backstage of the Orange Revolution? The outgoing authorities agreed to accept the people’s demands but on condition that the Constitution should be amended. So the constitutional amendments were passed in a hurry, without the involvement of experts and scholars, and without being considered by the parliament. In fact, the authors of those constitutional amendments set a “time bomb.” Their aim was not to improve the political system, but quite the contrary – to unbalance it. The president was stripped of many powers, parliament became unaccountable and the promised and overdue reform of local self-government was postponed for an indefinite term.

Later it became known that this political chess game had been pre-planned so that the overwhelming chaos in the political system deprived Ukraine of any chance for real change.

Despite numerous attempts to ensure unity among the authorities, I was left with no choice but to initiate constitutional reform. We set up a national constitutional council to which all political forces, including opposition ones, lawyers, scholars and constitutional law experts were invited.

Later, following lengthy, difficult and often hampered negotiations, my team drafted a new constitution. In late March 2009, I submitted it to parliament for consideration and suggested that not only lawmakers but also the whole Ukrainian nation discuss it.

These are long-awaited reforms of all the areas of the political and public life of our state.

The fundamental aspect of the revised constitution is the observance of human and civil rights and freedoms. The equality of all citizens before the law is restated. The constitutional protection of children will be reinforced. A new article regarding the rights of people with disabilities was proposed.

The constitutional proposals were prompted by the need to reform the judiciary and the law-enforcement system, including, for example, by stripping the prosecutor’s office of the Stalinist right to conduct pretrial investigations and introducing a justice of the peace system instead.

The direct sovereignty of the people will be considerably reinforced, particularly as regards the right to legislative initiative. We used as an example the democratic models widely applied these days in many EU countries, namely Austria, Italy, Spain, Lithuania, Latvia, Poland, Portugal, Hungary and others.

If the electoral legislation is amended, we will make the authorities more authoritative and lawmakers more responsible for their promises to voters.

Following the experience of other countries, I suggested establishing a bicameral parliament which would unite the representation of political forces with territorial communities and territories.

It was suggested that, firstly, the number of parliamentarians be reduced from 450 to 380, with 300 in the lower house and 80 in the upper one, and, secondly, that their unlimited immunity from prosecution be abolished. The matter is that the absolute legislative immunity enjoyed by lawmakers leads to permissiveness and, as a result, to impunity.

The lower house, the Chamber of Deputies, will be a body of the people’s political representation. Its members will be elected directly on a proportional basis from open party lists. This means that voters will vote both for a party and for its particular candidates. Nowadays parliamentary elections in Ukraine are held on a closed list basis, with parties informing voters only about the first five candidates on their lists.

The upper house, the Senate, will comprise senators elected directly on a majority basis. Each region will elect three senators. The Senate will represent their interests, will be empowered to approve non-cabinet appointments and will also approve the Ukrainian president’s decisions regarding defense and national security.

A bicameral parliament will make it possible to separate political influence from appointments to state posts. Such amendments are designed to strengthen political stability.

In the European Union, membership of which is Ukraine’s strategic goal, nearly two-thirds of the countries have a bicameral parliament, among them such unitary states as Italy, Ireland, Spain and France. After the fall of communism, such a system was introduced in Poland, Romania, Slovenia and the Czech Republic.

The new constitution stipulates that the Ukrainian president, elected directly by the people, will preserve his status as guarantor of state sovereignty, security and territorial integrity, as well as of the observance of the constitution and human and civil rights and freedoms.

The Cabinet of Ministers will be granted independence to perform executive state functions and will be formed by parliament. It will be responsible for everyday foreign and domestic policies.

Local self-government reform will complete the formation of the balance of power. We will make communities primary elements of the state structure, from which we shall build a district and then regions. As a matter of fact, we can see the successful implementation of such a project in Poland, where the “gmina” - a primary local community, -- appeared after the fall of the Communist regime. As a result, the country’s financial and electoral resources are used more efficiently.

Recently I have sent the draft of the new Constitution to the European Commission for Democracy through Law (Venice Commission). I want this draft to be based on European traditions and be consistent with international law.

The parliamentary political forces, competing aggressively for power, have responded to my initiative in an unusual manner – by calling an early presidential election for October 2009. It is difficult to judge but one cannot rule out the possibility of them being afraid of dialogue not only with the president but also with the people, since in the past several years the nation has affirmed its commitment to democratic values and increasingly more often demands that the political elite be shaken up.

However, the decision by my opponents to call the early election has failed to produce the desired effect. I am not clinging to power. I have never viewed power as an end in itself – but as a tool to serve the most important things in my life, my fellow citizens and Ukraine.

Ukraine needs a new quality of politics. This is why I keep going further and suggest that early presidential and parliamentary elections be held simultaneously.

However, to ensure that the elections produce new quality, it is vital to fulfil the following conditions necessary for Ukrainian democracy: changing the electoral system (parties should offer open electoral lists so that the people could elect particular candidates who are both politically and personally responsible to them) and abolishing the unlimited legislative immunity enjoyed by members of parliament – so that parliament should be a place where laws are passed, rather than a place where one can hide from laws.

So my top priority is to cement Ukraine’s democratic gains and ensure real justice for the people.

My ultimate ambition is to open a path to a better life for Ukraine and establish forever in our country a just law – a constitution of liberty and progress.


Victor Yushchenko is the president of Ukraine.
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Evgeniy Tkachuk May 8, 2009, 7:32 a.m.    

Pan President, I commend your efforts to revise the constitution, as it is a much needed step. The changes you outlined are intelligent, and, if implemented, would enable the country to drag itself out of the mire it has been stuck for so long. However, I also feel that this proposal has come too late. Being on the barricades in 2004, you were aware of the strength of the reactionary forces you were facing. Yes, the deal was made to allow the power to change hands. I don't know the exact conditions that were set, and who was a party to the negotiations. You are a sophisticated statesman, and without a doubt a man of your word. At the same time, you were a revolutionary. You made a deal with the devil in hope that things will work out. You should have broken it as soon as your presidency was officially announced. The momentum was on your side, a significant portion of population would jump into fire for you -- the power was yours.

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Evgeniy Tkachuk May 8, 2009, 7:40 a.m.    

Instead, the corrupt siloviki were allowed to capture the initiative, which they have kept ever since. History has shown that entrenched corrupt power structures cannot be reformed away - they must be broken by force. I still believe that this is the only option, even though much of your political capital has eroded.

I also disagree with your focus on bringing Ukraine into EU - last summer's events have shown that EU will not defend us. Ukraine today is simply not worthy of being defended by the West. I strongly believe that the country should leverage its immense human and natural resources as well incredibly beneficial geographic location to build itself as an equal trading counterpart to main EU powers and Russia. Being a satellite state of one or another formation is a poor strategy. We first must make the country strong and prosperous, and then others will accept us with respect. This can be possible only after the rule of law has been established.

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Evgeniy Tkachuk May 8, 2009, 7:44 a.m.    

Without the rule of law, no reforms are possible -- they simply won't be allowed to happen, precisely the situation you describe in your article. That remains the top priority. This goal is a difficult, and likely a bloody one, but achieving it would open doors to the future of Ukraine as you and all those people on Maidan in 2004 have envisioned it.

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Ukraine Today May 9, 2009, 5:27 p.m.    

Yes

Ukraine needs a Parliamentary system of "Rule of Law" not "rule by Presidential decree" dictatorships.

Yushshenko broke that rule of law in 2007 when he unconstitutionally dismissed Ukraine's democratically elected parliament and illegally interfered with the independence and operation of Ukraine's Constitutional Court.

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Evgeniy Tkachuk May 8, 2009, 8:05 a.m.    

One last piece of advise -- if you can't win the game, change the rules. If you can't find anyone to stand with you, look outside -- the world is full of talented Ukrainians who know how the system should work. To fight, people must see a chance to win. Give them that.

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Ukraine Today May 8, 2009, 5:02 p.m.    

The Devil is in the detail

Yushenko's proposed reform is most certianly not democratic and hopefully will fail to be realised. The propsoed electoral regions will create a distortion in the value of the vote. One region will have 1.3 of the number of voters of another. The introduction of first-past-the-post voting system will further distort the representation with the highest polling party in each region electing three members. SO if you have 34% of the vote and your neareest competitor has 33% and 32% te 34% party electred all three upper-house Candidates.

Ukraine should look to Finland for its constitutional guidance. It must reject the first past the post voting system and hoipefully adopt a preferential Proportional multi-member system

A prefered option would be to have one house with 50 electorates each electing nine members of parliament on a 10% quota. Each electorate to be within 10% variance of the average number of constitutents.

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Ukraine Today May 9, 2009, 5:22 p.m.    

"So the constitutional amendments were passed in a hurry, without the involvement of experts and scholars, and without being considered by the parliament."

More false and misleading statements by Yushchenko, Little wonder why he has only 3% support.

Fact the 2004 amended provisions of Ukraine's Constitution were widely discussed by the Parliament in 2002/2003 and the Council of Europe Venice Commission. (See their web site) There was little to no surprise. Ukraine has been struggling to adopt a European parliamentary system of governance since independence. In 2003 the Parliament fell short by five votes of adopting Constitutional reform. The amendments adopted in 2004 are an extension and part of that debate. So it is wrong to claim that they were not debated. Another Yushchenko lie.

Yushchenko should spell out what provisions he thinks were not part of that debate/discussion?

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Ukraine Today July 17, 2009, 5:37 a.m.    

YUSHCHENKO'S PROPOSED CONSTITUTIONAL CHANGES UNDEMOCRATIC AND SEEKS TO REINSTATE UKRAINE AS A PRESIDENTIAL AUTOCRACY

“The Constitution submitted by the President of Ukraine to the Verkhovna Rada of Ukraine on 13 March 2009. The text of the draft appears in document CDL(2009)068. It was obviously translated hastily and the text is often scarcely comprehensible. Some remarks made in this Opinion may be due to problems of translation.”

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Ukraine Today July 17, 2009, 5:39 a.m.    

The proposed amendments to Ukraine’s Constitution by the President of Ukraine

1. significantly alters the balance of power and constitutional representation in Ukraine;

2. seeks to establish Ukraine as a semi Presidential system of governance;

3. the proposed creation of a Senatorial bicameral Parliament establishes Ukraine as a federation of disproportionate administrative regions and as such is undemocratic in its design and implementation.

The representational model for the proposed Senate does not meet current European standards or democratic values.

The disparity between electorates with the same level of representation denies Ukraine the right of one vote one value.

The disparity in representation is further exacerbated as a result of the proposed use of first-past-the-post method of voting in electing Senate candidates.

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Ukraine Today July 17, 2009, 5:40 a.m.    

The three staggered Senatorial terms of office further diminishes the representational model which in turn undermines public confidence in the authority and democratic composition of the proposed Senate

The President is granted a Senatorial position for life even if he/she has been voted out of office and not elected to a second term;

4. there is no provision for the purouging of the Senate or double dissolutions of both houses of parliament;

5. diminishes and restricts the rights and authority of the Parliament to hold parliamentary inquiries;

6. does not address a number of issues already identified by the Venice Commission in review of the V Shapoval draft proposals;

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Ukraine Today July 17, 2009, 5:41 a.m.    

7. removes a number of significant checks and balances against the misuse and abuse of Presidential authority. Most notably the changes to the impeachment procedures or the President;

The President can only be impeached by the Senate if the President has intentionally committed a crime.

The President would not be held accountable or subject to impeachment for breaches of oath or Ukraine’s Constitution as is the case in the grounds for dismissal of Judges;

8. the President appoints and dismisses 100% of Ukraine’s Constitutional Court Judges;

9. fails to address a number of significant issues and points of conflict in the current constitution;

10. does not provide for stable or democratic governance

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Ukraine Today July 17, 2009, 5:42 a.m.    

“The President would continue to exercise relatively wide powers. It is welcome that the problematic provisions on parliamentary factions and their coalitions, included in Art. 83 of the present Constitution have been deleted. The Article on dissolution of the Rada should be reconsidered.”

“The draft opts for the introduction of a bicameral system. This is a political choice which has both advantages and drawbacks. Since the territorial structure of Ukraine is not based on federal or regional principles, a bi-cameral system is not a natural choice. Nevertheless, even in a unitary system, it can improve territorial representation and, due to the longer term of office of the Senate, enhance continuity. On the other hand, bi-cameralism complicates legislative and budgetary processes and may introduce new causes for political dead-locks.”

“All in all, the expected benefits and the possible disadvantages of a second chamber should be carefully weighed against each other.”

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