Constitution Day passed without much fanfare, marked only by Yanukovych’s statements that he intends to change this very constitution “through the mechanism of a constitutional assembly.”
On the other hand, we were shown films about the history of that ill-fated constitution of 1996, from which one might conclude that this document has almost sacred significance and that the “constitutional night” was some kind of parliamentary feat.
What is the Ukrainian constitution, what was the meaning of the “constitutional night,” what does this document mean for us and what can it mean? And finally, is there any meaning in the popular statement “our constitution is good, they just don’t follow it”? Let us try to figure it out.
Are there problems with the text?
Over twenty years, I have become sufficiently proficient in constitutional matters. Now I easily distinguish constitutions from their imitations (for example, Soviet “constitutions”). It would also not be difficult for me to write the text of a constitution for a republic or constitutional monarchy, parliamentary or presidential, with a unicameral or bicameral parliament, unitary or federal, “tuned” for civil or common law. Moreover, this text would even be better than many constitutions currently in force—more logical and less internally contradictory. And it is precisely this circumstance that allows me to say that the text of the constitution itself presents no problem. It was not difficulties in drafting some supposedly wise text that caused the deputies to sit over the draft for a year and be forced to adopt the constitution at night, under the threat of dissolution.
Does a neutral state exist?
This seemingly simple circumstance leads us to an important conclusion. If politicians and politics existed separately from the “rules of the game,” the constitution would have been adopted easily and quickly. At the same time, the best text would have been adopted—the most balanced one, giving politicians opportunities for fair play. A fatal error always arises at this point, which confuses and disorients not only our naive and trusting population but also all kinds of specialists and experts, both in our country and in the West. The error consists in the reasoning that you have undoubtedly already made upon reading the previous lines and which you are already ready to pronounce. So, a popular viewpoint holds that “politicians try to write rules for themselves,” or, more elaborately, that “politicians try to use the state for their own purposes.” According to most, this is precisely what caused the constitution to be adopted so slowly and is the reason why it is constantly being redrawn.
However, this statement is erroneous. It assumes that somewhere in the ether there independently exists some ideal or, let us say, neutral (with respect to goals and means) state, which bad politicians use for their own purposes. In reality, this is not the case. Any state—this is precisely politicians, their decisions, positive law that they create in the form of laws and other decrees, and rules that arise in their mutual relations through customary practice. The state both emerges and constantly changes precisely in the course of this arduous activity. A neutral state, independent of this process, does not exist in any country and cannot exist. For our topic, this means that under these specific conditions (and this is a very important clarification), no other text could simply have appeared.
Why does a state need a constitution?
From this misconception follows an idea gaining strength among a certain part of the public. This idea is that if someone from the outside writes a constitution for “them,” then everything will be fine. This idea is currently being tried through that very “constitutional assembly mechanism” Yanukovych spoke about.
Of course, the idea that rules should be created not by those who play by them (given that the result of their game concerns not only themselves) is correct, and I strongly support it. However, this scheme will not work for us, or rather, it will work only if certain conditions are met. We will talk about this below, but for now, I think everyone has a simple question—why does the elite need a constitution at all? Or this same question can be reformulated as follows—why do politicians follow some things and not follow others?
The constitution is needed by those exercising political power (that is, the state) in order to establish the foundations for forming rules of relations between themselves. This need arises from the fact that these people possess a monopoly on coercion and a guaranteed income in the form of compulsorily collected taxes. Control over these “resources” constitutes the subject of their activities. War “of all against all” in such conditions is for them a meaningless and very costly endeavor. One can get much more by having rules that it is beneficial to follow.
The constitution—this is precisely an attempt to create and fix such rules, written by the state for itself. This explains why only those rules that the state needs will always be observed, while those it does not need will be ignored. And here it no longer matters whether these rules were written by the participants of the process themselves or handed down from outside. Let me note that the state now blissfully ignores (and this is very telling—at the complete silence of the “public”) the most important and conceptual provisions of the constitution. For example—direct action, proclaimed by the text of our fundamental law. It will be the same with any norm that is unnecessary or harmful to current practice.
What does the constitution say about why we exist for the state
It is clear that the constitution should also determine what goes to those who do not participate in the exciting state process. All kinds of free medicine, education, and other “social conquests,” but in reality, doles intended precisely for this purpose (let us leave aside the circumstance that “freeness” exists at the expense of those to whom it is intended).
However, we have a much more significant role than being simply the object of the “management process.” Our most important role, without which the state simply cannot exist, is to be voters for this state, to supply it with legitimacy. The existing system is based on the fact that the highest status in the state hierarchy belongs to persons who have passed the election procedure. Accordingly, the election procedure itself is of decisive importance. By the way, the evolution of our state toward minimizing our influence on the results of elections is very telling in this sense. But no one is encroaching on the elections themselves, the senselessness of which is becoming increasingly obvious to increasingly broad “segments of the population.” Elections are needed by people participating in the state in order to answer the question “and who are you?” This is the very first and most important question with which any hierarchy begins. In our time, it is customary to consider that the election procedure is the correct dude’s answer to this question. Let me note that even in the USSR there were some elections.
Sovereignty
The answer to why this happens (and why in other places it happens slightly differently) is contained in the interesting word “sovereignty,” which in our case means the right to dispose of oneself. In an absolute monarchy, the king was such a sovereign; the sovereignty of everyone else was dependent on him.
It is clear that for various reasons many people also desired sovereignty for themselves, and preferably more, and many actually received it in the course of the social process. This process ultimately resulted in the emergence of constitutional democracy—a political structure in which the sovereignty of the people constituting the state is greater than that of everyone else, but it is limited with respect to the sovereignty of everyone else by a written law having supreme force.
However, this is possible only because the people who wrote the constitution already possess sufficient sovereignty. In a country where the overwhelming majority of people are in slavery, no constitution is possible, even if this slavery is formally abolished. It is impossible until the former slaves acquire sovereignty and gain the spiritual lightness that allows one, in response to the question “and who are you?”, to calmly and without fuss punch in the face.
I think it is now clear why the “constitutional assembly” scheme will not work now. It can only work when the people who wrote the constitution are as sovereign as those who are supposed to follow it.
Present—constitutional battles
In a situation where the powers of the state are interpreted maximally broadly and there are no strict restrictions regarding the resources it uses (that is, us), competition for access to it inevitably arises, and accordingly, there appears a demand for revising the rules of relations within the state, as a method of such competitive struggle.
Combining the existence of even a formal constitution (and, above all, the institution of elections) and the omnipotence of one group of people over another is impossible without additional extreme efforts in the form of, for example, mass repressions. Therefore, the existence of an election procedure always creates the temptation to use it for redistributing access to resources (that is, access to our sovereignty).
We observe this process now and will continue to observe it. Yanukovych’s team is trying to bring it within the framework of a “constitutional assembly,” but they are unlikely to succeed. Even if the revision of the constitution takes place and is sanctified by an “independent” constitutional assembly, this will not stop anyone from a new revision at the first opportunity.
It is clear that this process concerns, mainly, the activities of the state and is interesting to its participants. However, there can also be benefit for us in it, if we focus at least on conceptually important things. We must understand that our task is to limit the state as a whole and to increase our influence on it. There are two most important points here related to the constitution—this is the adoption of a law on elections by open lists and reducing the powers of the Rada to two years.
Future constitution
However, one must understand that modern constitutional democracy contains a congenital defect that will always, in our conditions, reproduce the system in which we languish. This defect consists in the fact that this concept is based on the sovereignty of the state, which is endowed to it by some mythological people. That is, it is assumed that on this basis, as a result of voting, some people can obtain radically more opportunities related to sovereignty than others.
This model is flawed from the outset. Where it originated, its defectiveness (still) is restrained by the fact that people in these societies are relatively equal in their sovereignty. However, in our situation, when society is divided into bosses and everyone else, and the dream of these others is to become bosses at any cost, such a system is simply destructive.
Therefore, the future Ukrainian constitution must be based on the sovereignty of the individual.
The constitution must be a contract between citizens, with all consequent implications—the possibility of entering and exiting the contract, procedures for changes, etc. The subject of the contract is the regulation of a part of sovereignty from which each can resign for the “common good.” Accordingly, the contract must determine where this very “common good” comes from and contain procedures for delegating the sovereignty of some citizens to other citizens and all possible mechanisms of control. Such an approach completely changes the content familiar to us of a constitution (and I would no longer undertake to write such a text in an hour). For example, one can assume that it will pay much attention to taxation (if such remains at all) or other means of implementing the “common good” and will almost completely ignore semi-mythical “human rights.” “Political power” will arise as a function of implementing the “common good” and its role will be initially limited by this task.