Presidential Decree №1294/2007 from 27 December envisaged the creation of a National Constitutional Council [the Council] which would include academics, politicians, regional representatives delegated by bodies of local self-government and civic figures. The makeup of the Council was to be affirmed by the President who would also head  it. The Council would discuss the concept for a new draft Constitution and prepare this draft. The Decree also envisages wide discussion.

However the makeup of the Council, as approved on 18 February by Presidential Decree № 139/2008, is a downright disappointment. Of 97 of its members, 40 are National Deputies [MPs] with 12 from the Party of the Regions; 11 from Our Ukraine – People’s Self-Defence; 9 from BYuT – Yulia Tymoshenko’s bloc; 5 from the Lytvyn Bloc; and 3 from the Communist Party. There are 9 employees of the Presidential Secretariat, 4 from parliamentary institutions; 2 civil servants; and 6 heads of regional councils. In a word, we see the entire political beau monde. There are only 13 specialists in law, including 5 retired judges of the Supreme and Constitutional Courts; 13 representatives of the National Academy of Sciences and higher institutes. There are 9 members of civic organizations, only two of which in my view can be considered unbiased – the Razumkov Centre and the Ukrainian Helsinki Human Rights Union.

The Constitution is an act of civic society and cannot only be passed by professional politicians who will be unable to avoid the temptation of adapting the Constitution to suit their selfish interests or will sabotage it altogether.  A decent draft can only emerge with the participation of well-known civic leaders and lawyers whom people trust. Why have the Ukrainian Helsinki Human Rights Union [UHHRU] members Myroslav Marynovych and Josef Zissels not been included? Where are the constitutional specialists Vsevolod Rechytsky and Viktor Kolisnyk or the human rights defender and publicist Mykola Kozyrev?  What about the UHHRU Executive Director Volodymyr Yavorsky, the philosophers Yevhen Bystrytsky and Taras Voznyak, the economist Ihor Burakovsky or the lawyers Oleksandr Vynnykov, Viacheslav Yakubenko or Oleskandr Severyn?  All of these people were put forward by civic organizations. Why are they not benefiting from the experience of retired Constitutional Court judges Ivan Tymchenko, Mykola Savenko and others? This list could go on and on.

I would hazard a guess that this makeup of the National Constitutional Council is a difficult compromise which was achieved in order to get a public constitutional process starting and to legitimize the Council. It would seem that no political forces, aside from Our Ukraine – People’s Self-Defence, consider changing the Constitution to be of priority, while without the participation of all parliamentary factions the Council will have no legitimacy. Yet will it be able to work with such a makeup, and could it not turn the preparation of changes to the Constitution into pure political squabbling? I would be glad to be proved wrong however it is difficult to believe that such a Council has any chance of succeeding. This was confirmed by the Council’s first meeting.

The meeting took place on 20 February. At first the President briefly spoke of the need to write a new Constitution and gave his views about the changes needed. He was supported by the Speaker of the Verkhovna Rada who called on all political forces to work together on the draft. However when the discussion turned to organizing the Council’s work, the various political factions’ entirely different attitudes became apparent. The Council Secretary Marina Stavniychuk suggesting dividing the Council up into five committees: on the fundamental principles of the constitutional order and the rule of the people; on human and civil rights and liberties; parliament, the Head of State and. the Cabinet of Ministers; the justice system; the territorial organization of power and bodies of local self-government, as well as choosing 15 members of a working group to prepare a draft Constitution. However this didn’t suit the politicians. Viktor Yanukovych said that first a concept for constitutional changes needed to be prepared by a working group and discussed, and only then should the committees be formed since it wasn’t clear how many and which there should be. Mykola Tomenko then stated that BYuT was against the creation of a new version altogether and supported only amendments and additions. It was therefore unnecessary to form a working group, and the five committees mentioned should work towards improving and optimizing the relevant sections of the Constitution.  Petro Symonenko said that before any working bodies of the Council were created, there needed to be discussion of the concept for constitutional changes and he proposed beginning that discussion immediately. In short, it was all extremely reminiscent of the Verkhovna Rada. Mykola Onyschuk explained that the working group and committees should work together, passing on what they had prepared and making both the concept and the actual changes more specific.  The President interrupted this discussion, saying that the makeup of the working bodies had been approved, that they would begin work the following Tuesday and ended the first meeting.

Predictions for the future work and the fate of this National Constitutional Council are fairly pessimistic. In this there is consensus between constitutional specialists and politicians. On the other hand, the Constitution which was destroyed in 2004 has become a source of systematic political confrontation and as a consequence of the destruction of the State. Without changes to the Constitution, there can be no end to this destruction. Those political figures who appreciate the burden of this responsibility simply must try to continue the constitutional process. For that reason, although at first glance the Council and its members would seem unable to function, we must seek a solution.

We should note that if a decent draft Constitution appears which people like, the question of the legitimacy of its adoption becomes secondary. In 1956, De Gaulle, having received parliament’s consent to make some amendments and additions to the current Constitution, proposed for referendum an entirely new draft which was passed. This was termed a “constitutional revolution”, yet France received one of the best constitutions in the world, which competes with the American Constitution and is a source of pride to the French.

Ukraine’s civic society must also put forward its position. There are suggestions of something like a civic constitutional council which could put forward its draft Constitution and demand that it be discussed and considered. The first steps – creating a Civic Constitutional Council which is proposing that a special representative body be created to pass a Constitution – have already been taken.

The Orange Revolution was Ukraine’s symbolic move away from post-communism. The adoption of a new Constitution will indicate a real departure from that world and re-found the Ukrainian State according to new rules. In my opinion, this process is irreversible since there is no reversing the establishment of a democratic order in this country which is within a strong and international trend of westernization. The question is only when this move away will take place and what price we will have to pay along that path.

Yevhen Zakharov,

UHHRU