Is the Rada ready to make an agreement between government and society?

The Constitutional Assembly has been criticized ever since it was created. Firstly, the very fact of initiation of an assembly that would create a new project of the Constitution under the auspices of the president aroused indignation. Then, the Assembly was openly ignored by the oppositionists: all of them refused to participate in the project, thus shaking the legality of this body. Instead, a number of independent experts joined the Assembly. However, each of their meetings (and there have already been three) was followed by a scandal of some sort.

Before the first meeting of the Constitutional Assembly, one of its members started having doubts that the Party of Regions might submit Russian as the second language for the Assembly’s consideration. At the second meeting, one of the creators of the first Constitution Viktor Musiiaka protested. He refused to vote for the following agenda: the Assembly was to vote for amendments to Article 98 of the Constitution of Ukraine, which was about control over state budget funds allocation. The final shot at the Assembly’s reputation was made during their last meeting. The independent experts announced the possibility of withdrawing from the Constitutional Assembly after the proposal about deliberation of the influence on the Assembly’s activity by the law on referendum, signed by the president, was failed by the majority during the voting.

Ihor Koliushko, chair of the Center for Political and Legal Reforms, headed the rebellious group. He emphasized that adopting the abovementioned amendments would change the rules of play for the Constitutional Assembly. He also expressed fears that amending the Constitution might happen without the Assembly’s participation. Chair of the Center for Political and Legal Reforms Mykola Melnyk, the former judge of the Constitutional Court of Ukraine Mykola Koziubra, the former MP Heorhii Kriuchkov, and the former speaker of the Verkhovna Rada Oleksandr Moroz allied with Koliushko.

In particular, Koliushko presented a draft appeal of the Constitutional Assembly to the president concerning the law on referendum. This initiative did not enjoy support either.

We would like to remind that The Day wrote about the drawbacks and threats of the signed law on all-Ukrainian referendum numerous times. These days, a number of NGOs addressed the president in their speeches. Their main demand was that the president should refer the passed legislation to the Constitutional Court, to check its constitutional validity.

The Day decided to find out why the Constitutional Assembly refused to express its attitude towards a matter that had a direct relation to it.

“PEOPLE ARE NO LONGER AFRAID OF THE GOVERNMENT”

Leonid KRAVCHUK, former president of Ukraine, head of the Constitutional Assembly:

“At the third meeting of the Assembly, during which honored guests were present (secretary, members, and two deputy heads of the Venice Commission), we discussed two extremely important matters. The first related to the judiciary reform, the draft law of which had been submitted by the Presidential Administration (the president’s adviser Portnov) and its expert assessment conducted by the corresponding commission headed by the former head of the Supreme Court of Ukraine Vasyl Maliarenko. This is a rather important matter, because when we evaluate the situation in the country, analyze results of elections, the legal problems, criminalization of life, the Criminal and Procedure Code, it raises the most questions.

“The Constitutional Assembly’s priorities were set from the very moment of its creation: the judiciary reform, the system of law-enforcement reform in general, and the reform of local self-government. So, we are working on these priorities in the context of overall preparation of the concept of making amendments to the Constitution of Ukraine. This concept is created by the commissions of the Constitutional Assembly, and it might be completed in late February or early March.

“The matter of amending the Constitution is the most important for us these days. At the moment, we cannot implement the declared reforms, because they are not defined in the existing Constitution, they do not have precise and updated European definitions. However, the need for settlement of this matter is caused by Ukrainian life itself, which is constantly emphasized by European leaders and the Venice Commission. Since we did not pass the Constitution in 2010, it was rather a ‘gift’ from the Constitutional Court, we need to do something to find a way out of the current predicament. The legitimacy of the existing Constitution and its legal power are not defined to the extent which is needed for the regular law-making process and life of the state according to norms and principles of the fundamental law.

“Besides, at the meeting Koliushko, who was later supported by other members of the Assembly, emphasized the necessity of assessing the correspondence of the referendum law to constitutional norms and European values. We acted in accordance with the statute of the Constitutional Assembly, which defines its main task as preparing the draft law on amending the Constitution. And concerning the constitutional validity of the existing laws, they are to be reviewed by the Constitutional Court. The Assembly gives no assessments. We offered the commission to consider Koliushko’s proposal and define a document we can rely on while discussing this matter. However, there are no regulations that specify the Assembly’s duties in such cases, and we cannot act as a fire brigade or an ambulance.

“I do not think that this was a conflict situation. It was an attempt of some members of the Constitutional Assembly to draw attention to themselves. Nothing tragic will happen if independent experts leave the Assembly. It will go on working, just like it did before, and their places will be taken by people who realize that the highest priority in the Constitutional Assembly is given to making amendments to the Constitution that would correspond to European rights and values, and human rights and freedoms, democracy, or rule of law would not be formal and ambiguous concepts. Instead, they will be presented like one idea, will, and action for every Ukrainian and the government in particular. We do not know all the peculiarities of such democratic document yet. We have never lived in a democratic society, and it is not democratic at the moment, that is why we addressed the Venice Commission.

“As a citizen, politician, and the first president of Ukraine, I have expressed my opinion on the adopted law on referendum numerous times. But it was my personal assessment, I did not express it on behalf of the Assembly or any other organization.

“The Constitutional Assembly does not pass laws, it prepares drafts. The laws are passed only by the Verkhovna Rada, according to the Constitution. The other question is if the matter of amending the Constitution can be raised today. Due to some of its features, our Constitution is not legitimately complete. How long can we live without a real legitimate Constitution as an agreement between society and government? Because that is what it is supposed to be.

“The Verkhovna Rada gathered on December 12, and we shall see if it is ready to make such an agreement. Personally I think that it is not. Election problems, the statements made during the campaign and after elections make me think that there will not be 300 votes in support of such Constitution that would correspond to basic strategic interests of the society and that would be executed by the government. So, what should we do? Should we live with the existing illegitimate Constitution or look for another way to adopt the main law? If we look at Article 5 of the Constitution, it states that the people of Ukraine are bearers of sovereignty and the source of power. So why cannot the people decide what order and government they need? After living for 21 years in a country, where the distribution of powers and the struggle between the president and the parliament are continuous and unending, people don’t only have a right to do this, they can do this. All civilized countries provide the option of people’s participation in the decision-making process. There are two ways of such participation: elections and referendums. When the matter of the all-Soviet Union referendum rose, Gorbachev and others talked about some difficulties, because the parade of sovereignties was in process, but the law on referendum was needed. Gorbachev said: ‘If we trust the Soviet people, we need to give them an opportunity to express their will.’ There is no doubt that the law on referendum must be better, but living without such law equals to limiting the will of the Ukrainian people.

“We are afraid that burning issues like the union of Russia, Ukraine, and Belarus, or the Customs Union can be put on a referendum [Viktor Medvedchuk has already made a corresponding statement. – Ed.], but I think that people who can bring this to referendum are not stupid enough to avoid the realization of consequences of such decision, when the nation might be involved into internal confrontation. The referendum is a rather complicated form of declaration of will. Taking disputed matters out to a referendum and vesting the ordinary citizens with responsibility for their settlements may aggravate the situation in such a way that people would move from words to actions.

“Look at the results of the parliamentary election, look at Kyiv and other regions: people are no longer afraid of the government. This is one of the results of the independent Ukrainian life, and it will become even more conspicuous as the time passes. New generations will come, they will set questions in a different way, their lives will also be different: the matters of honor, dignity, responsibility, and patriotism will not be comprehended formally, they will become crucial values for the new generation.

“Ukrainian people are not to be afraid of. In 1991, when I offered to bring the matter of Ukraine’s independence out to the all-Ukrainian referendum, patriots and nationalists gathered in the Sofiiska Square. Oh, all the things they said about me! They even said that people would vote for the Soviet Union. I even received a call from Gorbachev, who said that the citizens of Ukraine had voted for the preservation of the USSR as a renewed federation on March 17. I told him then that I trusted Ukrainian people. And I did with good reason: 90.34 percent (about 34,700,000 people) voted for the country’s independence. That is why we have independent Ukraine right now. We should treat the problem after considering its historical importance and looking at the perspective.

“The Constitutional Assembly will lay down the necessary changes and submit them to the president, and he, in turn, will pass them to the Verkhovna Rada. Will the parliament be ready to adopt this document, or will it act according to the ambitions and philosophy of ‘if we can’t have it our way, let’s make it worse’? I will not sign a single word if it contradicts the sublime values. Bringing the Constitution out to referendum does not just mean reading 150 pages of legal text, but answering the question what country the people want to live in. If the nation votes for this or another proposal, we are going to execute its will.”