The following three texts analyze the “internal hierarchy” discussed in the previous note—that is, the “official” political machine. The first was written in 1997, immediately after the adoption of the current version of the Constitution; the second, during the “late Kuchma” era; and the third, after the dissolution of the Rada in 2007, when the political machine restored the 1996 system de facto (Yanukovych later merely attempted to codify this fact legally). The formal organization of our political machine clearly reveals that its main feature is its informal character. The first text is also notable for its detailed analysis of the Constitution, from which it becomes clear why it cannot function. This collection includes further short articles on why any written constitution “does not work.”
Preliminary Remarks
Despite the low “degree of consensus” in social sciences—connected to their political bias—few deny the liberal origins of the constitution as a legal and political phenomenon. Therefore, this author examines the Ukrainian Constitution from the standpoint of constitutionalism. Here, this means recognition of the priority of human rights over the rights of any collective, state, or social institution; the concept of natural law (in particular, the inalienability of rights); and the principle of rule of law (law is “above” the Constitution and the state).
This author considers it advisable to examine the Ukrainian Constitution not as a completion, but as a stage in the constitutional process. Regardless of whether the current Constitution will endure or another text will appear soon, the constitutional process will not stop. It will continue through the adoption of organic laws, decisions of the Constitutional Court, and social processes related to the emancipation of citizens. In this author’s view, one must distinguish between the constitutional process (which has rather public significance, determined by the development of relations between society and the state) and the founding process (associated with the emergence and legal formalization of state institutions, as well as with the interpretation of constitutional norms). However, even in the founding process—whose beginning was the referendum of December 1—the adoption of the Constitution is not the end point.
The adopted Constitution is the second attempt, after the constitution of the UNR, to formalize Ukrainian statehood (for many reasons, this author does not consider Pylyp Orlyk’s document a constitutional act). Unlike the constitution of the UNR, about which the broad masses practically knew nothing, the new Constitution was born as a result of an open five-year political confrontation. The old constitution of the Ukrainian SSR—with its instituted institution of the President and the complete omnipotence of parliament, which could amend the constitution at any moment—could not become the rules of the game for real political forces. Therefore, after four years of futile struggle without rules, an understanding emerged among its participants that such rules were necessary.
Let us recall that in political confrontation, not so much public forces as various groupings of the nomenclature actually participated (and continue to participate), acquiring some political coloring or doing without it. This is the main drawback of the new Constitution—it is not a document of civil society intended to define the relationship between the state and citizens. Rather, our Constitution should be compared with “pre-constitutional” acts such as the Magna Carta of 1215, which was a kind of barons’ agreement with the king. Let us also recall that despite wide media coverage of the “constitutional process,” subjects of civil society were not allowed to participate in it. The Constitutional Commission was composed of representatives of the authorities; only the official draft was considered (while most alternative drafts were of much higher quality); it even came to the point that the population was “discussing” one text, and parliament—another. All this is not surprising—for the true participants of the “constitutional process,” the main task of the Constitution was to define the rules of the game with each other, that is, the legalization of the political process. Therefore, of the many functions of the Constitution, the text adopted in July 1996 is primarily called upon to fulfill one—to record the political agreement between various power groupings. However, even despite the existence of the Constitution, the crisis of the political system persists. This is evidenced not so much by public “settling of scores” as by the inability of the authorities to implement their own decisions. Below, this author will try to show why the main public tasks that the Constitution is called upon to fulfill remain open.
I. Constitutional Tasks and Their Practical Implementation
A “classical” constitution that guarantees fundamental rights and freedoms, establishes mechanisms for their implementation, and provides feedback between society and the state is capable of playing a significant role in restoring society’s resources. Let us add that world practice suggests it is precisely such anti-crisis and “restorative” function of the constitution that is the main one. It is enough to recall: the American constitution was adopted after ten years of the Articles of Confederation being in effect, which proved their ineffectiveness, after the government’s declaration of its inability to govern and its “request for help from the founding authority”; the constitutions of most Western European countries—after World War II, and so on.
The anti-crisis function should not, of course, be specifically designated in the Constitution. It is sufficient that the constitution correctly reflects the priorities inherent in it as a legal phenomenon, thereby creating conditions for self-organization and development of society. Contemporary specialist in constitutional law Vsevolod Rechytsky writes about this: “Since it is impossible to establish a fixed measure of freedom in law, the legal system is organically composed as bipolar. Some norms ‘care for’ freedom, the rest—for orderliness. However, freedom is still more important than order, so the heart of the legal system—the constitution—takes the side of freedom.” Further quoting this author, one can say that “the constitution is a guarantor of freedom, the expression of which in a healthy society is the measure of positive chaos, ‘disorderliness’ in the economy (market), politics (democracy), private life (privacy). This is why the constitution is not so much a regulator of social life as a guarantor against its excessive, unjust, and therefore illegal organizedness, regulation” 1
Examining the Ukrainian Constitution from this perspective, one can note that it does not fulfill its anti-crisis role. This conclusion follows from the analysis of the constitutional text presented below.
Citizens’ Rights and Their Implementation
In this matter, there is often traditional terminological confusion, since completely different phenomena are called by the same word. In English, there are several terms for denoting rights. First of all, these are inalienable or natural rights (to life, liberty, and property)—rights; civil rights or liberties (freedom of speech, conscience, etc.)—liberties; entitlements, that is, rights acquired in the political process, which in the USSR included the right to work, rest, housing, etc.—entitlements2. Let us note that such a classification is more accurate than the customary division into civil, political, economic, cultural, etc. rights. The latter classification is more suitable for “human rights” as a political phenomenon and does not establish a certain hierarchy of the “strength” of rights, as is characteristic of the Anglo-Saxon tradition. Finally, the word “right” in our usage also names science, the legislative environment, and the general system of relations based on a contract or recognized hierarchy of parties. One of the saddest consequences of such confusion is the distrust of our citizens toward the very concept of human rights, since in this case rights are associated with privileges, and the very appeal of anyone to these rights looks like a demand for something more than others have.
1.1. The Conditional Nature of Freedoms
Practically all articles of the Constitution describing civil rights (liberties) contain references to laws (for example, “if not prohibited by law,” “defined by law,” etc.), especially where civil rights are mentioned (Art. 33—freedom of movement, Art. 34—freedom of speech, Art. 35—freedom of conscience, Art. 36—right to create associations, Art. 39—freedom of assembly). Thus, the law becomes a condition for the implementation of the right, and nothing prevents the adoption of laws that would restrict the right. For example, the “right to entrepreneurial activity not prohibited by law” (Art. 42) does not prevent parliament from gradually prohibiting all types of entrepreneurial activity by laws. This author believes that the presence of Art. 22, which states: “Constitutional rights and freedoms are guaranteed and cannot be abolished. When adopting new laws or amending existing laws, narrowing the content and scope of existing rights and freedoms is not permitted,” will not save from such a probable collision. To “activate” this article, a process in the Constitutional Court is needed. Besides purely political difficulties that will arise when submitting the appropriate claim (see below), it will be quite difficult for the plaintiff to prove that parliament abolished the very right to entrepreneurial activity or reduced its scope, since: a) the Constitution contains the above reservation: the right extends only to activity “not prohibited by law”; b) the scope of entrepreneurial activity is not constitutionally defined.
It is noteworthy that the grounds for legislative restrictions on rights are not only the interests of national security, territorial integrity, or public order, but also categories that are clearly outside the competence of the state—for example, “the health and morality of the population” (let us note that although such norms exist in some constitutions, for example, Italy and Spain, they contradict classical ideas about the role of the state, and for the reasons to be stated in para. 3, they cannot be borrowed).
The classical constitutional scheme provides that rights must be formulated in an absolute form. This does not mean the impossibility of legislative restriction of rights—after all, any law due to its positive, “imperative” nature somehow restricts rights. When adopting laws, the legislator is guided by priorities—which right to give preference to. However, the absolute formulation of the right in the Constitution preserves the possibility to challenge the actions of the legislator, who often is guided by political considerations, and to annul or adjust the law.
Here the author may be objected that the formulations of rights in the Ukrainian Constitution are “copied” from international documents on these issues. This is largely true, but those documents were adopted during the era of the USSR and the “socialist camp,” so they have a compromised appearance. By the way, for this reason many democracies do not join international documents on human rights.
The second variant of the constitutionally programmed restriction of rights is, for example, Art. 41. It states that the right of private property is inviolable. This formula follows from the naturalness of the right to private property (that is, it exists regardless of what the state thinks about it). But the further statement of Article 41 that “the right of private property is acquired in the manner determined by law” contradicts inviolability, since what already exists cannot be “acquired,” and moreover “in the manner determined by law.”
All these seemingly purely theoretical problems have practical consequences. When two constitutional norms exist in parallel, one of which is more convenient for the state and the other less, the more convenient one will always be applied. In our case, this means that the thesis about “acquiring the right of private property on the basis of law” will be in effect. In fact, the state of affairs after the adoption of the Constitution will not differ from the previous one: the state intends to continue “granting” property to citizens, which allows not only to take it away quite quickly, but also to easily and freely change the rules of the game in this area.
1.2. Existence of Positive Rights
Among the advantages of the new Constitution can be included the fact that it contains fewer so-called positive rights (entitlements) than official constitutional drafts. The rights to work and housing, which were stumbling blocks for constitutional drafts, are formulated in a fairly civilized form (the right to work, as the right to freely sell labor power, rather than the right to mandatory payment for any labor). True, other positive rights have been preserved—to an adequate standard of living (Art. 48), to education (Art. 53), to health protection (Art. 49).
The existence of positive rights makes constitutional justice (which is extremely necessary) meaningless. The simultaneous existence of constitutional justice and positive rights threatens the destruction of the judicial system, since it is quite obvious that judicial decisions made to protect positive rights cannot be enforced. One of the consequences of this state of affairs may be the unwillingness of courts to consider cases based on the Constitution. And without the possibility of constitutional justice, the constitutional guarantee of any rights practically loses all meaning.
1.3. Legal Positivism
Art. 92.1 states: “the rights and freedoms of a person and citizen are determined exclusively by the laws of Ukraine.” Factually, such a formula presupposes the identity of law and law (which is the essence of legal positivism). Conceptually, this thesis contradicts the previously proclaimed principle of rule of law and makes the constitutional guarantee of citizens’ rights unnecessary. Instead, it confirms the obligatory existence of legislative acts regulating rights (see para. 1.1.).
2. Organization of Feedback “Society-State”
The idea of natural law was reflected in constitutionalism in the principle of rule of law (Art. 8). This principle means not so much the obligatory fulfillment of written acts and adherence to procedures as the limitation of state actions by constitutionally protected rights and the possibility of court protecting rights not outlined in it (as provided by the 9th Amendment to the US Constitution and Art. 22 of our Constitution). Let us add that the continental legal system introduced in European countries (including Ukraine) requires quite detailed descriptions of legal provisions in the Constitution and practically inevitably leads to the emergence of laws and bylaws adopted on its basis and for its development. All this, especially under the conditions of our country, creates conditions for the gradual loss of freedoms proclaimed by the Constitution through ever greater clarification by normative acts. Imperceptibly and gradually restricting freedom leads to its disappearance, and therefore to the stagnation and degradation of the state. Therefore, a constitution based on natural law must have legal priority over legislation. Thus, the constitution creates feedback that allows correcting the activities of the state, not allowing it to degrade. Such feedback is ensured by constitutional provisions: the state’s guarantee of protection of citizens’ rights (Art. 22), the possibility for citizens to apply to court for protection of their constitutional rights (including, to sue the state) (Art. 8, Art. 55), prohibition to adopt laws contradicting the constitution (that is, violating rights) (Art. 8), the impossibility for the state to “abolish” rights under any circumstances (Art. 22), the possibility (and even duty) of citizens to resist armed resistance to anyone who tries to abolish such an order (“right of rebellion”). This connection is exercised by the court.
2.1. Judicial Protection of Constitutional Rights
The main element of feedback between society and the state is the possibility for a citizen to sue individual state officials, state bodies, and the state as a whole based on the Constitution. Most developed countries provide such a possibility. In Austria, Canada, France, Germany, the USA, courts can declare laws unconstitutional (hence—void). In Sweden and Norway, courts have the right not to apply a law they consider unconstitutional, and to be guided by constitutional principles when considering cases involving actions of the government and private individuals. In Australia, Great Britain, and the Netherlands, courts have the right to declare void decisions of state bodies and to be guided by constitutional principles in proceedings between private individuals. Although the Ukrainian Constitution guarantees constitutional justice (Art. 8), its implementation seems highly doubtful for several reasons:
The Constitution does not provide for a system of “judicial review” that operates in the USA and is, in this author’s opinion, the most effective means of “cleansing” legislation and normative acts from unconstitutional provisions. Bernard Siegan, in the above-mentioned work, provided an adapted presentation of the principle of “judicial review” suitable for use in the continental system: “Judges cannot apply laws that do not coincide with this constitution. In the event that during a judicial process the court determines that the law applied by it may contradict the constitution, the court must interrupt the process and make a formal request to the Constitutional Court regarding the constitutionality of the said law. If the law is declared valid, the judicial process resumes” (Art. 8 of the “typical” draft constitution by B. Siegan);
The absence of the mechanism described above may lead to the following consequences. The two main categories of cases considered by our courts are regulated by relevant codes—civil and criminal. In case of contradiction between a code norm and the Constitution, the court must be guided by the latter. However, this actually means recognizing the code norm as unconstitutional. However, the adoption of such a decision falls within the competence of the Constitutional Court, since the sole body of constitutional jurisdiction is it (Art. 147). Such a collision has no solution within the Constitution and the current judicial system. Therefore, most likely, courts will not be guided by the Constitution as a law having direct effect in their practice;
The second (and probably main) category of claims filed based on the Constitution may concern the illegality of certain normative acts. Thus, the ordinary court will again have to take upon itself the competence of the Constitutional Court;
In Ukraine, there is almost no practice of administrative justice and corresponding court rules;
In Ukraine, the principle of judicial precedent is practically not recognized (with the exception of resolutions of the Plenum of the Supreme Court), on which administrative justice is largely based. It is noteworthy that contemporary American researcher Sandra Coliver, in her work “The Constitution and Freedom of Speech,” notes: “due to the obvious constitutional significance of freedom of the press (let us add: and other freedoms) even in countries with a codified (continental) system, current legislation is increasingly established not through codification, but on the basis of judicial precedent”;
The practical implementation of constitutional norms in ordinary justice will be hindered by the presence of positive rights enshrined in the constitution (see para. 1.2);
The Constitutional Court, which is actually separated from the judicial system, is rather a political body that interprets the Constitution in the part concerning authorities. Article 150 indicates that the Constitutional Court considers cases submitted by the President, 45 deputies, the Supreme Court, the Commissioner for Human Rights, or the Verkhovna Rada of Crimea. In this list, the courts of general jurisdiction are represented by the Supreme Court, that is, for a case to reach the Constitutional Court, it must first pass all stages of ordinary justice.
2.2. Direct Effect of the Constitution
A condition for the possibility of constitutional justice is its direct effect. Article 8 proclaims this principle. Usually “direct effect” encompasses the following requirements for the text: each norm of the Constitution must be formulated in a simple and unambiguous way; the same thing is said in the Constitution only once, and each article speaks only about one thing; for direct effect, other laws on this issue are not needed; each concept (for example, “censorship”) must be explained in the Constitution; each norm of the Constitution concerns certain subjects and has legal consequences. Even a cursory acquaintance with the text indicates that most of these requirements are not met. Moreover, as long as the text of the Constitution contains numerous references to laws to be adopted (34 laws) or refined (15 laws), direct effect is practically out of the question.
2.3. Right of Rebellion
The fate of the “right of rebellion” is quite symptomatic for modern Ukrainian history. Usually this right sounds as follows: “The people and every citizen have the right to resist anyone who carries out an attempt to eliminate the constitutional order, if the means provided by the Constitution cannot be used” (this formula is from the draft Constitution by V. Rechytsky, which, in this author’s opinion, best corresponds to the norms and spirit of constitutionalism. Let us note that the given formulation generalizes the definition of the right of rebellion in the constitutions of other countries). All official drafts of the Constitution contained this right, presented in the opposite meaning, when citizens were given the right to defend the state, rather than to prevent the establishment of tyranny. The compromise variant was not the correction of the presentation, but the disappearance of this right from the final text of the Constitution. Let us emphasize that countries that guarantee this right (mostly countries of the Anglo-Saxon tradition) were not only distinguished by internal stability, but also did not experience totalitarianism.
3. The Problem of Adaptation
It is believed that one of the deepest problems of democratization of our society is the paradox of this process—Western democracy arose as a result of natural development, while ours is “introduced from above,” without having the most important conditions for its existence. But the “chicken or egg” question does not exist here: democracy (as institutions) and the accompanying traditions developed simultaneously and were mutually determined, with all countries borrowing something from each other. Borrowing is not bad, but one should borrow not the specific results of development (as happens with us when they talk about Western salaries, labor protection, etc.), but the principles that made these results possible. Such principles concern not so much formal democracy and its institutions, as the conditions of citizens’ independence from the state—guarantees of property, adherence to contracts, and procedural obligatoriness.
From this point of view, the constitution plays the most important adaptive role in transferring democratic principles. However, the new Constitution is a simple compilation of Western texts and does not fulfill this important role. The point is that the foundations of Western civilization are not inscribed in constitutions, but are determined by certain general traditions (which allow us to call absolutely different states by the single word “West”).
The problem arises of “translating” these traditions into legal formulas. Such “translation” can be carried out in two ways. First, by constitutional consolidation of some fundamental features of the West (for example, “state property cannot be greater than the property of civil society,” as stated in V. Rechytsky’s draft); second, by clarification of some existing “details,” ignoring which renders the proclaimed democratic principles null and void. The latter method is used in B. Siegan’s “typical” draft. For example, Section 8 Art. 1 of this draft establishes norms of the legislative process, Section 9 states that “a bill is a genuine expression of the will of the National Assembly if it covers no more than one subject specified in the title of the document.” The draft establishes the most important norms of constitutional justice. Moreover, due to the clarity and simplicity of formulations, the text of the “typical” draft is smaller than the text of the new Ukrainian Constitution.
The consequences of the “non-adaptability” of the text can be illustrated by the above-mentioned example of the direct effect of the Constitution.
The “mental peculiarity” that the Constitution must take into account in this case for adapting the text to our conditions consists either in the ignorance by even lawyers of the requirements for “direct effect,” or in the unwillingness of the authors to apply it in practice. Therefore, an “adapted” presentation of the principle of direct effect should contain a clarification of the principle itself. This would allow nullifying the effect of numerous ambiguities of the text (which will hardly be eliminated as long as constitutions are written “collectively”) in judicial practice.
Another example of “non-adaptability” is the existence of “positive” rights alongside rights that restrict the state. The concept of a “social state” (which Ukraine proclaims itself to be) does not mean that the state guarantees the protection of “positive” rights in court alongside the rest. “Positive” rights exist in a “social state” (let us note that “non-social” states do not even try to proclaim them) rather as certain tasks (in other words, good intentions), which the state aspires to and whose achievement costs it partly bears. The absence of directly created differentiation of rights by the Constitution based on the concept of a “social state” may lead to the consequences described in para. 2.1.
Examples of adapted text can be provisions from the draft Constitution by Vsevolod Rechytsky: “The freedom of the people is the main priority of the Constitution. Civil peace, security, protection, and stability are the main priorities of the state. The priorities of the state are subordinate to the priorities of the Constitution.” “The will of the people determines the will of the state and is the highest personalized authority. The Constitution is the highest depersonalized authority. Legislative, executive, and judicial power in the state are subordinated to the will of the people and the Constitution. Legislative and executive powers are autonomous from each other. Judicial power is independent from legislative and executive power. Judicial power listens to the will of the people only under conditions when it is expressed in the form of Law.”
4. Separation of Powers. Political System
The constitutional organization of the political system must minimize systemic factors of political risk. This task consists in the implementation of the principle of separation of powers and the organization of “checks and balances.”
4.1. Separation of Powers
Often the basis for the principle of separation of powers (delineation of powers of individual branches) is considered to be the inadmissibility of concentration of absolute power in one pair of hands. However, this is not entirely so. The principle of separation of powers is primarily oriented toward the effectiveness of the exercise of power. Traditionally, it is believed that there are three such powers (branches of power), but more correctly, in our opinion, four powers should be distinguished—founding, legislative, executive, and judicial. The authors of this principle, who observed in practice the ineffectiveness of monarchy, where all types of power were concentrated in one pair of hands, believed that each power should be exercised by a separate state body authorized to do so by the people. Thus, the basis of separation of powers lies in the functional principle.
The founding power, which creates state bodies, nowhere exists as an independent permanent body. Usually its role is limited to the creation of the state and state institutions through the adoption of the Constitution by a special body—the Constituent Assembly (USA, some European countries after World War II and the collapse of the “socialist camp”). After the adoption of the Constitution, the founding power is distributed among other powers: in parliamentary systems, it is inherent in parliament; in the USA—in the Supreme Court and parliament, etc. In the Ukrainian Constitution, the founding power is distributed between parliament, the President (the right to create new state bodies), and the Constitutional Court (the right to interpret the Constitution).
Legislative power under the new Ukrainian Constitution is mainly concentrated in parliament, although the President has some legislative functions (the Cabinet of Ministers as the highest body in the system of executive authority is obliged to be guided not only by the Constitution and laws, but also by acts of the President).
Judicial power is concentrated in courts of general jurisdiction and the Constitutional Court. The President also has its functions, since he “cancels acts of the Cabinet of Ministers and acts of the Council of Ministers of the Autonomous Republic of Crimea” (Art. 106). Moreover, “decisions of heads of local state administrations that contradict the Constitution and laws of Ukraine, other acts of Ukrainian legislation, may be cancelled by the President of Ukraine respectively according to law…” (Art. 118).
Executive power looks quite strange: the Constitution states that “The Cabinet of Ministers of Ukraine is the highest body in the system of executive authorities” (Art. 113). The system itself is not defined. Moreover, the President “on the basis of and for the implementation of the Constitution and laws of Ukraine issues decrees and orders…” (Art. 106), that is, performs executive functions.
4.2. French and Ukrainian Political Systems
It is commonly believed that a mixed political system is implemented in Ukraine, a model of which is France. However, a simple comparative analysis shows that this is not so. Although in France the bearer of executive power is also the government, not the president, a government without a president does not legally exist. Meetings of the French government are inevitably chaired by the president. Moreover, “the President of the Republic signs decrees deliberated by the Council of Ministers” (Art. 13). This means that independent acts of the French government do not exist. This is how the institution of countersignature works—a joint signature of an executive act by the president and the responsible minister. The Ukrainian Constitution does not provide for the deliberation of the President’s acts in the government and the participation of the head of state in its work, so countersignature in our case has a rather formal character.
The most important is the difference in the relations between the presidents and prime ministers of the two countries. Article 115 of the Constitution of Ukraine states: “The Prime Minister is obliged to submit to the President of Ukraine a resignation application of the Cabinet of Ministers of Ukraine upon the decision of the President of Ukraine or in connection with the adoption by the Verkhovna Rada of a vote of no confidence.” The French constitution states: “the President terminates the powers of the Prime Minister upon the latter’s application for the resignation of the government” (Art. 8). In practice, this means: if there is no application for resignation, then there is no resignation itself, that is, the prime minister essentially depends on the will of the parliamentary majority. Overall, it can be said that, unlike the French one, the Ukrainian President has much less responsibility and greater freedom of maneuver.
5. General Remarks
5.1. Estatist Orientation
The entire text of the Constitution is permeated with the spirit of the supremacy of the state over the citizen. The already mentioned formulations of civil rights, the organization of the political system, the presence of transitional provisions that preserve the possibilities for the state to arbitrarily interfere in the affairs of private individuals, create the impression that the authors of the Constitution perceive the state as an end in itself, and citizens as ignorant “subjects” who need care.
Most persuasively (although not as noticeably as in other cases) the supremacy of the state is traced in the articles on private property, which have many reservations and unnecessary emotional passages. This is not accidental, since it is private property that creates citizens independent of the state and generally makes it possible to raise the question of the limits of state powers.
“Statehood” in itself becomes some kind of legal criterion. For example, Article 37, which notes the grounds for banning political parties, first names programmatic goals or actions aimed at “the elimination of the independence of Ukraine” (by means of primitive rhetoric, almost any political party can be accused of this), and penultimately—“encroachment on human rights and freedoms.” Article 65 states that “the protection of the Fatherland, independence, and territorial integrity of Ukraine… is the duty of citizens of Ukraine” (let us note in passing that such a formula justifies the existence of an army formed by “military conscription”). Finally, the first point of Article 106, which defines the powers of the President, states that the President “ensures state independence.” The impression is created that the authors of the Constitution were not confident in the viability of the Ukrainian State and sought to “secure” it by legal norms.
5.2 Declarativeness, Overloading, Excessive Verbosity
In Article 1, for example, it says: “Ukraine is a sovereign and independent, democratic, social, legal state.” This definition (partially duplicated by other articles, for example, Art. 5: “Ukraine is a republic”) imposes no obligations on the state, since none of these characteristics (except independence) can be “introduced” by the Constitution. The article can be “translated” as follows: “Ukraine is independent, good, kind, and just.” Article 16: “Ensuring environmental safety… overcoming the consequences of the Chernobyl catastrophe—a catastrophe of planetary scale, preservation of the gene pool of the Ukrainian people is the duty of the state.” Article 24 illustrates the peculiar understanding of the authors about equality: “Equality of rights of women and men is ensured by… the establishment of benefits…”
5.3. Detailing
Unjustified thoroughness in some cases (“the state takes care of the development of physical culture and sports,” Art. 49) and unjustified brevity in others (organization of power).
5.4. Ambiguity, Contradictoriness
Article 69: “Popular will is exercised through elections, referendums, and other forms of direct democracy.” Article 111, impeachment: “To conduct an investigation, the Verkhovna Rada creates a special temporary investigative commission, which includes a special (?) prosecutor and special (?) investigators.” Another example: the formula “censorship is prohibited” is quite absurd, since it is unclear who is prohibited and what censorship is. Moreover, the proclamation of freedom of speech already means the prohibition of censorship. The same Article 111 (impeachment) can serve as an example of contradictoriness. It provides that before the parliamentary vote (“guilty—not guilty”), there should be a judicial conclusion of the Supreme Court that the actions of the President contain signs of “treason.” The judicial bodies in Article 111 perform contradictory functions relative to their nature. Moreover, the very authority of the judiciary is put at risk by political conjuncture. How can the judicial system exist if, for example, the Supreme Court concludes that the actions of the President contain signs of “state treason” (which is not inherent to a court that is not a prosecutorial body), and parliament does not adopt a verdict of guilt? Understanding this circumstance, judges will most likely not want to risk the authority of the court and will not give a proper conclusion. The existence in the Constitution of the “Security and Defense Council,” about which essentially only said that its “functions are determined by law” (Art. 107), is absolutely unjustified.
5.6. Uncriticality
The example can be the High Council of Justice—an organ consisting of elected members and members who are members “by position.” The Council is designed to propose candidates for judges to parliament and the President, make decisions on violations by judges and prosecutors of incompatibility requirements, etc. (Art. 131). This body is “copied” from the French constitution. Since there is ready French experience of such an organ’s activity (the Council of the Magistracy), one can avoid a complex analysis of the mechanism of judges’ independence and immediately refer to the ready results. A 1993 population survey showed that 82% of French people consider courts dependent on political power. It is noteworthy that President Mitterrand after this proposed a constitutional amendment that deprived him of the right of appointment to the Council of the Magistracy—this is one of few examples of voluntary reduction of presidential powers 3.
II. Consequences of the Adoption of the Constitution
Obviously, the general prospect for the country’s development is the tendency to preserve and strengthen the state’s control over the use of social resources (which legal norms also are). This means the preservation of the weakness of civil society, the practical absence of subjects of political activity other than the state, the preservation of the existing identity of political forces with state institutions and regional clans.
1. Political System
1.1. The Problem of Parliamentary Majority
Theoretically, in a “mixed” model, a majority can exist in connection with the support of the government or/and president. Unfortunately, in the new Constitution there are no reasons for the creation of a parliamentary majority in either case.
a) “Government” majority. Under the Ukrainian Constitution, the Prime Minister is appointed by the President with the consent of parliament. A majority won by the government is not yet a vote of confidence. The second stage of “approval” of the government is the vote on its program. This is also not quite a vote of confidence. Parliament does not assume responsibility for the government, but simply supports its program. In the matter of support, a majority may arise, but it will only be situational. The separation of votes on the appointment of the prime minister from the support of the government program makes the political system non-transparent, and parliament—unstable.
At the same time, parliament has the opportunity to dismiss the government. This is the only basis for the creation of a majority (which can also be situational, but unlike the majority created for supporting the program, will have unambiguous consequences). Such a “negative” majority is the worst thing that can be invented. Let us add that the constitutional limitation of parliament’s right to dismiss the government (such an issue may be raised once per session) makes parliamentary control over the government rather doubtful. A solid majority can only form when there is a constant threat (and possibility) of the government’s dismissal by parliament.
b) “Presidential” majority. Parliament will not be able to divide into a majority and minority regarding the President’s policy, as sometimes happens in a presidential republic, since “the President’s policy” as it were does not exist—instead, the government always appears. Under conditions where parliament does not influence appointments but influences dismissals, there will always be a large number of the dissatisfied. Since parliament is not responsible for the government, this frees hands for the most varied criticism. At the same time, claims against the President, who appoints the government, cannot be effective due to the invulnerability of the head of state. Therefore, the government will always and in everything be at fault.
The lack of a permanent majority paralyzes the legislative activity of parliament. Thus, parliament in the new system is rather a “talking” body than a political and legislative one.
1.2. Passive Government
The government is in the most unpleasant position, appointed by the President, and which can be dismissed by both the President and parliament. The government, “squeezed” between the President and parliament, has no slightest incentives to show any activity and enthusiasm. Rather, it will follow the logic of “let’s just get through this,” waiting for a command “from above.”
The restrictions imposed on parliament’s right to dismiss do not change the essence of the matter and even worsen the situation. As in an ordinary parliamentary republic, the dismissal of the government will depend on political conjuncture. If such a collision arises during a period when the dismissal of the government by parliament is impossible according to the Constitution, political forces will seek another channel to resolve the collision. This creates an extremely dangerous moment of unpredictability and illegality of the political process.
1.3. Irresponsible President
The President has considerable advantages in controlling the government. First of all, unlike parliament, which can raise the question of confidence in the government at most six times during the term of powers, the President can dismiss the government at any moment. It is believed that parliament’s right to approve the candidate for prime minister forces the President to take into account the parliamentary majority. However, due to the atrophied nature of the majority, for the formation of which there is simply no reason, parliamentary influence on the appointment of the prime minister and government will be minimal.
The quality of instructions given by the President also cannot be high, since, being in a safe position, he becomes disinterested in active public policy.
The only form of the President’s responsibility is impeachment. But according to the procedure proposed in Article 111, it is simply impossible to remove anyone from office. The American constitution, which introduced the concept of impeachment, provides a much simpler procedure—the initiation of a case by two-thirds of the lower house and the adoption of a decision by two-thirds of the Senate. However, despite the seeming simplicity, throughout the entire history of the USA, impeachment cases, which extend to all federal officials, were initiated only 12 times, and regarding a president only once—in 1867, when one vote in the Senate was lacking to remove Andrew Jackson 4. Richard Nixon, as is known, himself resigned under the threat of impeachment.
The impeachment procedure clearly illustrates the main political contradiction of the Ukrainian Constitution—the discrepancy between the “strength” of the President and his functions. Ordinary logic provides that functions determine the “rights” or “strength” of a particular state position. This thought fully applies to the US constitution, where the special impeachment procedure arose only on the grounds that the president is elected by all citizens, therefore he cannot be removed from office in the ordinary judicial order. Universal presidential elections are held precisely because he personally forms and heads the executive power, independent of parliament. If our President does not have formal executive functions, his impeachment is simply absurd, however, just as much as direct elections.
1.4. The Reverse Side of Irresponsibility
The President seems to be the most “well-arranged” political figure, but this is not so. Given his enormous powers and minimal responsibility, all political life will be concentrated around him. All kinds of influence groups will seek to realize their interests first of all in the presidential administration. In the administration and in the executive power, their own “factions” will inevitably form. It is important that such activity will be illegal, since there are no (and cannot be) channels for its legalization.
In both parliamentary and presidential systems, influence groups are concentrated around the legislative power, which, due to its representative nature, provides the possibility of legal coordination of various interests during the legislative process. Moreover, in a parliamentary system, the government is appointed by parliament and reflects the qualitative composition of the majority (a party or coalition of parties). This makes any lobbying in the executive power dangerous for the ruling majority, given the presence of a vigilant parliamentary opposition. In a presidential system, the President is protected from lobbying by the purely executive nature of his activities and the single-party nature of his government.
“Illegal” activity is unpredictable and dangerous. A President elected under the new Constitution will find himself in a state of permanent struggle with intrigue and conspiracies, about other activities he will simply have to forget. Moreover, due to the programmed inactivity of the Cabinet and President, any incumbent President, if he adheres to the law, is practically guaranteed defeat in the next elections, where all chances will be held by the prime minister, who, of course, was “not allowed to work,” or by the “unyielding” opposition.
Thus, in our opinion, there are no reasons to choose in favor of a “mixed” system, since it contains a potential systemic conflict within the executive power. Under our conditions, the mechanism for decision-making and political responsibility must be maximally effective, for which it must first be internally logical and transparent. We cannot afford a conflict within the executive power, the unity of which is one of the most important conditions for carrying out reforms.
Strange as it may seem, another argument against the “mixed system” is its widespread use in post-Soviet and post-socialist countries. The mixed system, usually, appeared in these countries as a result of “adding” the institution of presidency to a formally parliamentary republic, where the executive power was headed by a prime minister. The ubiquitous implementation of such a scheme illustrates not only the general problems of post-Soviet countries (the need for “strong” presidential power, the presence of clans and groups influencing individual branches of power, etc.), but also the general, almost intuitively chosen by the ruling bureaucracy scheme for the restoration of “Central Committee without the Communist Party,” when the role of the Central Committee is played by an almighty but irresponsible president. Like the Ukrainian one, the rest of the “mixed” systems differ from the classical French one in the direction of reducing presidential responsibility (N. Sakharov. Op. cit.). Let us also note that Western countries (except France) use two transparent models—parliamentary (continental Europe, Great Britain and its former dominions) and presidential (USA).
2. Preservation of the Phenomenon of the Presidential Administration
The emergence of the administration as an independent structure is associated with the understandable desire of any president in a “mixed” presidential-parliamentary system to have a mobile structure of “reliable people” around him and not to deal with the Cabinet, dependent on the Verkhovna Rada and public policy. The unrecognized status of the administration is convenient in that it allows real management without burdening oneself with legal procedures. Political responsibility for the activities of the administration is absent (more precisely, the Cabinet of Ministers is responsible for it, since, besides it, there is no object for making claims against the executive power).
3. Absence of Basis for Economic Reproduction
The Constitution does not create economic conditions for the country’s development. The private property formula is poorly worded and cannot satisfy either the domestic entrepreneur or the potential investor. Moreover, land ownership is regulated by a separate article, which states that “land is the main national wealth under the special protection of the state.” The subsoil, forests, and other natural resources “are objects of ownership of the Ukrainian people.” All this, together with the practically unguaranteed right to entrepreneurial activity and clearly untenable state obligations, constitutes a favorable situation for the flight of capital and labor from Ukraine.
4. Danger of Presidential Elections
Direct elections of the President have dubious general meaning. Since the Constitution contains a special concept of “government program,” and there may be several such governments during the future presidency (with different programs), a presidential candidate can come to elections with any program, for which there will simply be no one to hold accountable.
Such a state of affairs hinders the formation of parties as connecting bridges between the community and authorities. No party that counts on the future will tie itself to a populist candidate. However, the “new” system promotes that populists (each time—antipodes of previous presidents) will win presidential elections. “Electoral blocs” will be created to support them, which will dissolve after the elections. Instead of a multi-party system, we will get a constant mess of “small-partyness.” Therefore, elections and electability in the “new” system are not an institution of political responsibility, since the subjects of such responsibility—permanent parties—are alienated by the system.
Let us note that Article 103 programs the President for non-partisanship, which prohibits a candidate from “holding a position in associations of citizens.” Perhaps an independent pre-election program of the President would make sense in a developed party system, where elections could not pass without parties.
Finally, elections of the highest official, whose rights are so attractive, concentrate political life of the country on themselves. Moreover, the results of elections are important for their participants, not for the population (due to the specifics of the President’s functions considered above), which once again causes citizens to “become disillusioned with politics” and creates ground for right-left extremism. The latter—given the populist nature of presidential election campaigns—will maintain the split within the country.
5. Adoption of Organic Laws
Among organic laws (i.e., laws that “continue” the Constitution) in our situation, the most important will be laws concerning the organization of power. These are the law on the Cabinet of Ministers, on local self-government, on elections, on the Constitutional Court, etc. Today’s practice shows that the adoption of organic laws sometimes “corrects” the Constitution for the better. Thus, for example, the law on the Constitutional Court somewhat increased the number of those who have the right to apply to the Constitutional Court. The draft law on the Cabinet of Ministers, adopted by parliament as a basis, actually provides for the political organization of the government. “Confrontation of powers” around organic laws will benefit society (the exception is probably the law on local self-government), since parliament, acting as an opponent of the President, does so mainly from a generally democratic position.
6. Solution of Political Tasks
The adoption of the Constitution is associated with the solution of purely political tasks, one of which is the preservation of the position of the current ruling elite. This position is intended to be preserved primarily by enforcement bodies. In particular, “until the adoption of relevant laws” the current powers of the prosecutor’s office are in effect, Article 13 of the transitional provisions extends the current procedure for arrest and detention for another 5 years, Article 4 of the same provisions affirms the President’s right to issue decrees on “economic issues not regulated by laws” for three years.
The political nature of the Constitution sometimes manifests quite directly, for example, in Article 61, which states that “no one may be twice subjected to legal liability of one type for the same offense.” It is noteworthy that the commentaries to the Constitution issued by the Legislative Institute of the Verkhovna Rada seemingly do not notice the obvious distortion of traditional law. “This fully complies with international requirements on human rights,” says the commentary and further cites the text of paragraph 7 of Art. 14 of the International Covenant on Civil and Political Rights, where, of course, there are no words “of one type.” Since law enforcement and justice agencies usually perform repressive functions, such a norm that allows punishing several times for the same thing is quite important for the authorities.
7. Preservation of the Administrative-Command System
The situation we examined above, according to which acts of local administrations are cancelled by the President or the head of a higher administration, essentially means the preservation of the administrative system. The jurisdiction of the Constitutional Court does not extend to acts of local government bodies. Since most acts concerning citizens directly are issued by local government bodies, a large part of their life will be regulated by norms outside the constitutional field. Moreover, to cancel an act, it is necessary to complain to “higher instances.” Such practice is one of the conditions for the emergence of “negative selection” of officials, the preservation of a field for intra-administrative intrigue. As a result, “post-constitutional” Ukraine looks like an administrative-command system (at the local level) with some quasi-democratic shell (separation of powers at the state level).
Such, in our opinion, are the negative aspects of the new Constitution. This document solved political tasks, becoming an agreement of the nomenclature; to some extent solved normative tasks, creating certain mechanisms for structuring the legal system. But the Constitution did not become an element of the “social contract,” since it was adopted by the authorities and for the authorities and did not recognize the “independence” of citizens from the state; the Constitution did not fulfill the anti-crisis function, since it did not create effective mechanisms of feedback between the state and society, as a result of which the main source of crisis will remain the state.
Nevertheless, the Constitution is still an important (first) stage in the constitutional process. At least, the state has today acquired a form that allows the public to argue rights before a specific force, rather than a bodiless spirit. The political forces, which became the result of compromise that produced the Constitution, were forced to include some civilized norms in it. With active public participation, this will allow in the near future either to adhere to the Constitution or to testify to its powerlessness (both—a positive result). Moreover, the very presence of such norms creates ground for the activity and development of civil society. After all, a careful look at the development of the situation in Ukraine allows the conclusion that the adopted text is not the worst way to legalize the political process.