JOHN MARONE, KYIV
AN UNHAPPY BIRTHDAY FOR UKRAINE’S CONSTITUTION
On June 28, Ukraine celebrated its Constitution, with every politician and his brother demanding that the much abused document be altered yet again.
It was only eleven years ago that lawmakers had worked through the night to reach a compromise on the creation of a supreme law for the newly independent state.
Independent Ukraine’s first and only Constitution was hailed as a guarantee of individual rights for all Ukrainian citizens.
But right from the start, it was clear that lawmakers had borrowed a lot from their Soviet predecessors.
One by no means unique example is the Ukrainian Constitution’s proud proclamation that every citizen has the right to free medical treatment. In practice, this means mostly dirt poor facilities with underpaid doctors who receive their fees under the table.
The promise of generous rights, unsupported by detailed laws underpinned by proper financing, only mocks the privilege of citizenship.
Indeed, it takes time to draft, debate and approve legislation.
But few doubt that Ukraine’s lawmakers are more interested in making laws for the benefit of themselves, as well as the businesses and media that many control.
The most glaring example of their separation from the rest of society is the immunity from prosecution that they continue to enjoy.
More recently, the country’s lawmakers have begun attacking the law itself.
It all started in December of 2004, when then opposition leader Viktor Yushchenko was challenging the fraud-filled victory of his opponent for the presidency, Viktor Yanukovych.
Yushchenko succeeded in calling a new election, which he won, but the victory for the rule of law was short lived.
In order to shore up support for his presidential bid, Yushchenko had a collection of hastily drafted constitutional amendments foisted on him by opponents and supporters alike.
The essence of the amendments was that the president would have to give up many of the significant executive power that he had inherited from his predecessor, Leonid Kuchma.
It was Kuchma who had reigned over the passage of the country’s first Constitution.
But while ordinary Ukrainians eked out a living, and his fellow politicians gorged themselves on the country’s industrial assets, Kuchma went about quietly consolidating a king-sized portion of power throughout the late 1990’s.
By the time his second term was coming to an end in late 2004, Kuchma was in control of the country’s courts, governors, law enforcement, army and a majority in parliament.
And as the opposition continued to gain momentum toward deposing him and his supporters, Kuchma unexpectedly announced the idea of constitutionally transferring presidential powers to the parliament in mid 2002.
It was a hybrid form of the amendments originally proposed by Kuchma that Yushchenko ended up signing during the peak of the country’s Orange Revolution.
The amendments came into force in 2006, just in time to see one of Yushchenko’s key Orange allies, Socialist leader Oleksandr Moroz, defect to the camp of Viktor Yanukovych. The former became speaker and the latter returned as prime minister. Bolstered by a parliamentary coalition they formed with the Communists, Yushchenko’s opponents went about muscling away his executive authority, interpreting the poorly drafted constitutional amendments as they liked.
Not only was the country’s highest law crumpled up and shredded in the ensuing political battle, but the Constitutional Court lost what little respect it had enjoyed, as justices took sides with the president or parliament.
If Yanukovych and Moroz couldn’t be president, they were going to assume all executive and judicial power for the parliament they controlled, regardless of what the Constitution said.
Last August, the parliament even passed a bill prohibiting the Constitutional Court from ruling on whether the amendments passed in late 2004 were constitutional.
Now with snap elections scheduled for this fall as a way to break the political gridlock, the calls for more constitutional reform are again on the agenda.
This time, Moroz and Yanukovych are trying to steal the wind from Yushchenko’s sail. It was the president who first tabled the idea of challenging the amendments that limited his authority, proposing that his countrymen decide the issue in a referendum.
Now Moroz and Yanukovych have jumped on the band wagon – for a different purpose.
Moroz said on June 28 that he supports changes to the Constitution to transfer more power from the center to the regions.
“The Constitution of Ukraine will always be an open book, into which corrections will be made and supplements added by future generations of Ukrainians,” he announced during a Constitution Day speech.
Members of Yanukovych’s team have echoed similar sentiments.
Since taking their respective positions as premier and speaker last year, Yanukovych and Moroz have mostly tried to limit presidential power by pushing bills through the parliament.
Now that a new parliament is soon to be elected, they have again turned their attention to changing the Constitution.
The empowerment of regional government, which would be beneficial for the country if conducted without political motives, is one of many initiatives that Yushchenko’s foes have tabled.
However, members of Yanukovych’s Regions party have often used regional autonomy as a synonym for separatism in the country’s Russian-speaking south and east.
European bodies such as the Parliamentary Assembly of the Council of Europe, of which Ukraine is a member, have attempted to help Ukraine find its way along the path toward parliamentary democracy and the rule of law.
But although each side has attempted to legitimize its claims through European approval, Western advice often goes unheeded.
A resolution taken by PACE on April 19, during the latest constitutional impasse in Ukraine, reads “The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts' decisions, which is a sign of erosion of this crucial democratic institution. Independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out a comprehensive judicial reform, including through amendments to the Constitution.”
But judging by the way Ukrainian officials have used and abused their rather innocent Constitution in the past, no one in Europe should get their hopes up about meaningful constitutional change, as the country’s supreme law turns 11.
John Marone, Kyiv Post Senior Journalist, based in Ukraine.
June 28, 2007
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