Things get going?

President Yanukovych’s idea to set up a Constitutional Assembly seemed to have “sunk into oblivion.” In any case, nobody has heard about any steps in this direction since the last summer.

But things got off to a start now. The president issued a decree to this effect last Wed­nesday. It will be recalled that a special commission was formed a year go, composed of Ukraine’s first president Leonid Kravchuk as chairman and a number of political scientists and lawyers. In the past 12 months, the experts have held a host of roundtables and drawn up a very important document – the concept of establishing the Constitutional Assembly. From February onwards, the updated Constitutional Assembly will consist of 100 people whose names have not yet been revealed.

In an interview with The Day, Ukraine’s first president Leonid Kravchuk, the president’s advisor and Venice Commission member Maryna Stavniichuk, and Professor of Law Viktor Musiiaka reflect on the proposed changes to the Fundamental Law.

“THIS SHOULD BE A DIRECT ACTION LAW”

Leonid KRAVCHUK, the first president of Ukraine:

Mr. Kravchuk, in a recent interview with the New York Times, the president mentioned the Constitutional Assembly. In fact, a year has passed since this issue came up. And there have been almost no comments on this assembly. The public must have forgotten what this is. At what stage are you now?

“In my view, wee have taken a very reasonable attitude: do not set yourself a goal to slaughter a calf before it is born. We have worked quite seriously. In the past year, we have defined what a Constitutional Assembly in Ukraine is, what principles of its organization and performance should be, what goals it is supposed to set, and how it will function organizationally, theoretically, and legally.

“After the Venice Commission had sent us its comments, we had very many meetings, held a conference at Kyiv National Taras Shev­chenko University, the Kyiv Mohyla Academy, and universities in Kharkiv and Lviv. In other words, we have held a lot of meetings and round­t­ables.

“We had drawn up a document by the end of last year. The president read it and said he would issue a decree on establishing the Constitutional Assembly. It will consist of up to 100 people, with 30 percent of them being professional constitutionalists, and the rest will be public figures, politicians, and representatives of political forces. There will be a debate on changes to the Constitution. I stress: changes. We will not be writing a new Constitution. We will publicize our proposals and submit them to the president of Ukraine, and he, as subject of le­gislative initiative, will move this bill in parliament, naturally, with his comments and additions (he has the right to do so). I think it will be the Verkhovna Rada of a new convocation, to be elected later this year.”

In 2010 the Constitutional Court altered the Constitution without any assemblies. Since then, we have had a new political and legal reality, a presidential republic…

“The Venice Commission has already announced that the Constitutional Court was not authorized to do so. It abused its powers and stepped out of the legal framework. So they urged the president and all of us to return to the legal framework and launch a true constitutional reform based on legitimacy – with participation of a wide circle of public figures, academics, and decision-makers, so that we know that the Constitution was not just written in an office room but was debated upon by a large number of people. This should be a true agreement between the government and society, and the Constitution should serve the interests of the entire state rather than a certain personality.”

Does this mean we will be changing the system again and switch from a pre­sidential to a parliamentary republic?

“Probably, when we take up this matter, we will conduct some sociological surveys – perhaps on a wide scale – to know the opinion of people. In purely human terms, I cannot answer this question even if I have a viewpoint of my own. What really matters is the opinion of not me, Yanukovych, or the Verkhovna Rada, but of the people.”

Still, it is also interesting to know your personal opinion. For example, what do you not like in the current Constitution?

“There are many things I do not like. There are things in almost every chapter, which need to be clarified. There should be no dual interpretation. This should be a direct action law by which the state and society must live and develop.”

To tell the truth, there are not so many professional legal constitutionalists in Ukraine. You said in the beginning that 100 people would be working on the Constitution. Is it perhaps too many? You know, as they put it, too many cooks spoil the broth.

“No, I think it is an optimal number. We have long pondered over this. This body must include politicians who wield a good deal of clout in society, and they must say their word. It should also include academics, public figures, and others who represent civic society. We analyzed this from all angles – there is no other option. At least from our point of view.

“Yes, 20 or even 10 people can draw up a constitution, but we want this to be debated and opinions to be interpreted. We must attract foreign experts. We want European values to prevail in this matter. We want this to be based on the rule of law and democracy – not just as categories and fine words but as mechanisms that work and ensure a democratic life of society.”

“IT IS NECESSARY TO LAUNCH A FULL-SCALE CONSTITUTIONAL PROCESS”

Maryna STAVNIICHUK, advisor to the pre­­sident of Ukraine:

Ms. Stavniichuk, Leonid Kravchuk said last summer that the Constitutional Assembly would be set up “not before the end of this year.” But we still do not have it. What is the progress now, if any?

“A research expert group was set up last February, first of all, to work out proposals on the formation and performance of the future Constitutional Assembly. We have already submitted proposals on the concept of the Constitutional Assembly, which can make it possible to bring the constitutional process into motion. The head of state has persued them. As far as I know, neither Mr. Kravchuk nor the incumbent president has ever said that the Constitutional Assembly was to be set up last year. In my view, the point is that the research expert group was to map out the concept of the formation and functioning of the Constitutional Assembly and, accordingly, suggest principles and procedure to organize its work. On Janua­ry 25 the president of Ukraine issued a decree that envisages launching the process of the formation and organization of the Constitutional Assembly. We are taking a balanced approach and show preference to, first of all, experts, professionals in law, politics, philosophy, and economics. Undoubtedly, the Constitutional Assembly should also comprise, by certain criteria, representatives of the parliamentary political forces and the political parties that received strong support in the latest Ukrainian elections. Also amply represented will be civic organizations that specialize in the problems of constitutionalism, human rights, etc.”

The current leadership restored the 1996 Constitution by a Constitutional Court ruling in 2010. Then it launched the process of establishing the Constitutio­nal Assembly which will propose changes to the Constitution. Where is logic?

“Constitutional Court decisions are, naturally, binding on all, be it ordinary people or those in power. I would like to remind you, though, that a full-scale constitutional reform is a topical question under any circumstances, also with due account of the CC ruling. The European Commission for Democracy through Law discussed the constitutional situation in Ukraine in December 2010 after the Constitutional Court had handed down the ru­ling. Without passing judgment on the CC ruling itself, it singled out legitimacy as one of the main problems of the constitutional situation in Ukraine. Revalidating the 1996 Constitution, the CC ruling still called into question the legitimacy of public administration bodies and the Fundamental Law after the 2004 constitutional reform. Therefore, it is necessary to launch a full-scale constitutional process.

“On the other hand, there are a number of urgent institutional problems that require an immediate update of the Constitution. First of all, this applies to the judicial system of Ukraine. The judicial reform, begun two years ago, still continues. The judicial reform is part of the overall law-enforcement reform. And it is impossible to seriously resolve the problems of judicial reform unless the Constitution is updated in this part. This is the subject of comments from Ukrainian experts as well as Council of Europe bodies, including the Venice Commission which has exa­mined, several times in the past few years, the draft laws pertaining to judicial reform and has been monitoring the way the judicial system is being reformed.

“What is also a serious and urgent problem is reformation of the local go­vernment and the administrative-territorial arrangement. The president of Ukraine has repeatedly focused on these problems. These issues also need a systemic and comprehensive approach as well as certain amendments to the Constitution.”

The judicial reform started one and a half years ago, but it has aroused scathing criticism all the time. We can see this on the example of what is going on around high-profile cases. Will there be any changes to the ongoing judicial reform?

“Obviously, judicial reform is one of the extremely difficult reforms in Ukraine’s system of law. Naturally, many positive steps were taken, but there also are some faults. Analyzing the judicial reform draft laws and monitoring the already passed laws in this field, the Venice Commission recommends taking into account its conclusion that it is impossible to carry out a true judicial reform in Ukraine without amending the justice-related part of the Constitution. So it is clear that the course of judicial reform should be corrected and improved, the positive steps and tendencies should continue, while the faults in the system of court organization and judge placement must be corrected. This should be done, above all, for the purpose of establishing an independent and unbiased judicial branch of power which can defend human rights and exercise effective justice.”

What other changes are to be made to the Constitution? For example, what form of administration will there be after re­for­mation?

“It is a bit too early to speak about the full list of the problems to be tackled during the constitutional process. But it is quite obvious that, as we have opted for a full-scale constitutional reform, we should take an integrated approach. In addition to such constitutional issues as judicial, local government, administrative-territorial, and administrative reforms, there also are questions of a general conceptual nature. I mean the effective mechanisms of ensuring and protecting the rights and freedoms of man and citizen.

“It is also about the effective protection of political rights. For instance, the 1996 Constitution of Ukraine proclaims the fundamental political rights – the right to peaceful assembly. Over all this period, the Ukrainian parliament has failed, in spite of numerous attempts, to pass a specific law to uphold this constitutional right. The updated Constitution should comprise me­cha­nisms that will make sure that fundamental political and other rights of people will be protected.

“It is also about the necessity to se­riously guarantee the social rights of indivi­duals.

“All these issues require serious conceptual work. Another key problem is establishment of a single effective mechanism of political governance: we need a trouble-free mechanism of checks and ba­lances in both vertical and horizontal chains of command. Undoubtedly, there is a pressing problem of true parliamenta­rianism. There are a lot of conceptual problems which demand that a systemic analysis be conducted, the faults that occurred in the course of implementing the 1996 and 2004 constitutions be spotted, lessons be learned from the practice of applying the Constitution, and serious work be done to improve the Fundamental Law.”

“YOU SHOULD NOT STAY BEHIND WITHIN A QUASI-LEGAL FRAMEWORK”

Viktor MUSIIAKA, Professor of Law:

“I was part of a consultative group that worked at the Institute of State and Law. We helped formulate some decision-making documents for the academic expert group with Leonid Kravchuk at the head, which dealt with establishing the Constitutional Assembly. All the recommendations and proposals are now at the Presidential Administration. All that is to be done is signal civic political organizations to propose their candidates to the assembly. This should be followed by a decree on the establishment and composition of the assembly. In other words, there remain some purely organizational snags.

“Yes, it is beyond any doubt that the current Constitution suits the government: otherwise, the Fundamental Law would not have been amended in 2010 via the Constitutional Court. But the point is that the Venice Commission and other European organizations have pointed out that the Constitution of Ukraine should be amended according to the procedure laid down by the Constitution itself, not by a CC ruling. This is why the leadership has now launched this constitutional reform process – it is trying to bring constitutional foundations into line with its own actions. They should arouse no doubts in either Europe or Ukraine. And then, when the assembly has been formed, no one knows what ideas it may hit upon, for example, while introducing certain changes to the Constitution.

“We can say so far that the leadership wants to set the constitutional process into motion. What use is it going to make of this? I am saying again that it is important for the government to lay the legitimate groundwork for its work. This can only be done through at least cosmetic changes, all the more so that they will be finally approved at a referendum. In that case, the government can freely function, without fearing that it may be blamed for usurping power.

“We know only too well why changes occurred in 2004: that involved corporate, rather than national, interests. But it was still necessary to democratize the constitutional principles of a functioning state. From this angle, it was a positive step for the state. Today, we have come back to the authoritarian system that was indispensable at the moment when the state was forming and the groundwork was being laid to provide a good impulse for development and to make it impossible to get back. We believed then that the main danger was coming from the communist ideology, but it turned out that absolutely new forces, born by the new processes, became the main factors of danger to the constitutional system.

“But we must go on, moreover, in the European vector which demands that there are democratic principles and foundations for the formation of governmental institutions and, in general, for the functioning of society. It is indeed necessary to make changes to the current Constitution. The public is unlikely to accept steps aimed at strengthening presidential po­wer and the vertical chain of command, so steps will have to be taken to democratize the foundations. It will be perhaps understood that you should not stay behind within a quasi-legal framework, all the more so that real life shows that society is more and more unwilling to accept the existing state of affairs.”