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Viktor Yanukovych: Freedom, accord, compromise or What kind of Constitution Ukraine needs
30.06.2007, 15:53
This year we mark Constitution Day with mixed feelings. On the one hand, the people of Ukraine can be proud of having this Organic Law – a product of joint efforts and tough competition among different political forces with their different views and approaches. In my view, the history of the Ukrainian constitutional process mirrors the tremendous activity of the political leadership and the rest of society. It could be termed as a "struggle for power", but it is about something more – the fate of the state and the future of this nation. Our democracy has been tempered in the crucible of the constitutional process.
On the other hand, the people have witnessed the political crisis lead to utter discredit of state authority. The rivaling political forces have victimized the key institutions – the Constitutional Court, the Prosecutor General Office, the Central Election Commission, and the Interior Ministry. The judicial system has been disorganized.
The worst of it, however, is the destruction of parliamentarianism. The people who call themselves democrats deliberately resort to extermination of the supreme representative body, without which there can be no democracy at all.
The idea of holding a preterm election transformed into a kind of message to the people aimed at convincing them that this reckless scheme is a demonstration of resolve by the forces that once were unable to form a parliamentary majority.
It is absolutely clear, however, that the early election itself will not solve the host of problems generated by this political crisis. It will not change the balance of forces on the Ukrainian political arena. Therefore, we should concentrate on a more important thing – a complex reform of the political system. What has to be done?
In the first place, it is necessary to resume regular work of all institutions of power. Then it is necessary to hold a transparent and democratic election and form a new coalition majority and a coalition government. And finally, it is necessary to set up a constitutional commission in the new parliament and reach a compromise in choosing ways to optimize the system of government. Below, I will elaborate on these three initiatives.
Guarantees for Holding Democratic Elections
We already see problems with the Central Election Commission and foresee potential reefs like problems with staffing local election commissions. Unfortunately, the recent amendments to the election law do not solve all problems. There should be new political agreements and new guarantees of mutual trust to prevent upheavals in the electoral process. There is a proposition: the President, the Premier, and the leaders of the political forces represented in the parliament should sign a political agreement on guarantees for holding democratic elections. The agreement could be open to other parties that are not represented in this parliament. This document should oblige each signatory not to block the Central Election Commission's work, to refrain from any conflicts while staffing local election commissions, and to recognize the returns that the CEC will announce.
Without this prerequisite we are in for another crisis right after the election. The new minority may simply use the precedent and bloc the parliament's work – with all inevitable consequences.
By holding a democratic election and resuming the parliament's normal work we can make the first systematic step toward overcoming the political crisis.
Joint Drafting of Amendments to the Constitution
These amendments should optimize the system of government and ensure its normal work. We have not completed the transformations that were launched in December of 2004. Now, like after an elemental disaster, our political system needs an overhaul.
It is pointless and impossible to restore the old model of government that was turned down in 2004. The majority of our people would take measures to cancel this political reform as a return to the totalitarian times and would repulse them. We have to complete the constitutional reform that is already underway, instead of inventing some ideal system of government that simply does not exist.
There is one thing on which the coalition, the government, and the opposition are unanimous: no one must monopolize power. It is only the parliamentary-presidential model that safeguards real democracy, because it is based on a system of counterbalances and rational distribution of powers among the legislative, executive, and judicial branches.
If all participants in the constitutional process cooperate without imposing their positions on the rest, then they will succeed in optimizing the Organic Law and might complete this work by the end of 2007.
Constitutional Commission
If the president, the government, and all political forces represented in the parliament cooperate in joint lawmaking work, they can solve the current problems. I am for setting up the Constitutional Commission on a parliamentary basis and with the participation of the presidential side. The commission is supposed to draft a new edition of the Constitution that would optimize and complete the political reform. Then the draft document would be submitted to the relevant standing committees of the new parliament. I also warn against any attempts to revise or cancel the constitutional reform that may lead to an acute political-legal crisis and destabilize the entire system of government.
Completion of Work at Amending the Constitution
If we recognize the right of the people as the source of power to choose and amend the Constitution, we must clearly define the legislative norms that answer the question as to how the people can exercise this right – through free elections, referendums, or other forms of direct democracy. We must stipulate the people's right to determine and change the constitutional order through a national referendum. Besides, there must be separate legislative norms to guarantee implementation of the results of referendums.
Another priority is the judicial reform. Before we embark on it, we have to identify and analyze the main problems that were revealed by this political crisis. We have to analyze the mistakes we have made since the adoption of the Constitution in 1996. The judicial reform has not been completed. Moreover, some innovations have caused serious problems. Different politicians and jurists have to develop unified approaches to the reformation of the judicial system. To this end, we need to do the following:
optimize and modernize the judicial structure and legal procedures. In particular, we have to restore the destroyed vertical of jurisdiction. Today even judges, let alone common people, do not know which case is in the competence of which court. The situation is absurd: district courts pass verdicts that are beyond their constitutional jurisdiction;
ensure real, not declarative, independence of courts. During the political crisis some courts and judges were directly involved in political clashes as participants, hostages, and even victims. We have witnessed a process of sweeping political privatization of courts and judges;
eradicate corruption within the judicial system and increase the liability of judges. Between January and April of 2007, the Kyiv International Institute of Sociology conducted a nationwide poll. 49 percent of respondents said the Ukrainian judicial system was corrupt. Accusations of corruption leveled at judges have become usual in all political and public debates. As a result of defective reforms, judges have gone out of control and all procedural mechanisms are loose or out of order. Some cases even show that judges have become independent of the law;
pursue an effective, transparent, and democratic staff policy that includes training, appointment, and election of judges;
restore the system of constitutional judiciary. When disputes arose among the top institutions of power, the Constitutional Court was paralyzed and the very system of constitutional justice was on the verge of collapse. Radical changes in the formation and work of the Constitutional Court are inevitable.
In order to reform the judicial system it is necessary to create a balanced and harmonized structure of judiciary where local courts would be accessible and their judges would specialize in narrow fields, where county and region courts would have clearly defined functions and prerogatives, and where courts of general jurisdiction would comprise an integral system.
It is also necessary to optimize the legal procedures (through amending the procedural norms), delimitate the jurisdiction of different courts, and ensure effective appeal procedures in higher courts.
It is also important to institutionalize the court jury and define its competence, functions, and mechanisms of control over its activity and decisions.
The procedure of appointment of chief justices must be beyond the president's or the parliament's influence. Chief justices must be appointed by the Council of Judges or some other body of the judicial community.
Cases must be distributed among judges by sortition.
There must be effective and transparent mechanisms of judges' liability – for example, special court inspections or special disciplinary commissions.
Judges must be elected on a competitive basis with clear qualification requirements for candidates.
But above all it is necessary to depoliticize the judicial system and primarily the Constitutional Court.
Another important task is to ensure a balance of powers through building effective regulatory frameworks for securing the constitutional norms that pertain to the functioning of the key institutes of state authority. There must be clearly specified procedures for forming the coalition majority and the opposition minority in the parliament; there should be definite regulatory frameworks for the entire system of executive power; there must be guarantees and mechanisms of exercising the presidential powers. These and other constitutional norms must be perfected in order to prevent institutional conflicts among the branches of government.
The parliament must function as defined by the Constitution and the law of the Verkhovna Rada of Ukraine. All procedures of forming, organizing, and terminating the coalition of factions must be regulated by the law of the parliament regulations.
It is time to stop all those intrigues around the issue of MP immunity. My position is unambiguous: this constitutional norm has been abused and profaned: the immunity from persecution for political convictions and views has turned people's representatives into an "untouchable caste". Immunity has turned into impunity. It should be written in black and white when MP immunity is applicable and when it is not. In other words, we should abolish the criminal impunity of people's representatives and preserve their political immunity.
Suffrage Rights and Political Will through Election Mechanisms
I am convinced that the principle of proportionality, which is now practiced with closed candidate rolls, should be filled with a "European content". The Ukrainian model of proportional elections has exposed two negative aspects. Firstly, the very principle of political proportionality has been discredited. Secondly, elections based on the "Ukrainian proportionality" did violate some rights of individual voters and territorial communities.
If we want to democratize our political system and safeguard the citizens' constitutional rights, we do not have to abandon the proportionality principle. What we have to do is realign our electoral procedures with European standards and democratic political practices.
Ukraine needs either a mixed election model or a proportional model with open candidate rolls so that the people can vote for certain candidates rather than the headline slogan of the candidate roll.
To Overcome Dualism in the Executive Branch
It is impossible to restore the capacity of power institutes without overcoming the diarchy in the executive branch. It is obvious that until local administrations are transformed into executive bodies of local self-government they should function as part of the executive branch regulated by and subordinated to the central government.
It is no secret that there are different approaches to the contents of the law of the Cabinet of Ministers. We have always demonstrated our readiness to accept a compromise model. The political crisis stalled this process, and now we have to bridge all the differences that have emerged since the adoption of the law.
All members of parliament who will be appointed to ministerial positions should retain their MP mandates since a minister is a political figure rather than a regular public servant.
Now that Ukraine has become a parliamentary-presidential republic, there must be definite legal frameworks within which the president can exercise his constitutional duties of the guarantor of Ukraine's sovereignty and territorial integrity and the observance of civil rights and freedoms. There must be clearly-specified regulations for relations among the president, the government, and the parliament. Such regulations should secure a balance of powers and liabilities and prevent any overlaps.
There are several problems that must be solved urgently.
Firstly, the Cabinet of Ministers has a dual structure: two ministers are appointed by the president while all the rest are appointed by the coalition. This irrational practice undermines the integrity of the government as a body of collective responsibility.
The second problem is the uncertain legal status and functions of the presidential secretariat and other auxiliary and advisory bodies.
The third problem is imperfect regulations for relations between the president and the supreme bodies of authority (the Verkhovna Rada, the Cabinet of Ministers, the Constitutional Court, and the High Court) as well as other central and local bodies of executive government.
One of the ways to solve these problems could be a law on guarantees and forms of exercising presidential powers. The law would not establish or limit the scope of the president's powers, but it would regulate the status and functional authority of his auxiliary and advisory bodies and his relations with the central and local bodies of executive government.
This law should be compatible with the laws on parliamentary regulations, on central and regional bodies of executive government, and on local administrations.
The problem of the government's dual structure could be solved by adopting a norm under which all ministers must be appointed by the coalition majority. The same majority should be authorized to make and pursue the defense, national security, and foreign policies in cooperation with the president.
Local Self-Government
Ukraine needs real, not declarative enhancement of rights of local self-governments. All we have now is a rivalry between the government and the president for control over local administrations.
The key task is to ensure financial sustainability of local councils. It is not enough to give them more powers. They will be able to exercise their powers only if they have a sufficient resource base.
The more powers local communities have, the more responsible they must be to their communities and the central government. Their powers should not be enhanced to the detriment of the general system of government. Each level of local self-government should perform its own designated functions, but the general system of government should function as a single organism.
The amendments to the Constitution pertaining to local self-government should go together with a series of legislative acts that would regulate the functions of local authorities and their relations with the central government and complete the budgetary reform.
The opposition led by President Yushchenko, when it was in opposition to Leonid Kuchma, insisted on reforming the system of local self-government as the key component of the general political reform in Ukraine. Let us do it together and keep the promises we gave our voters!
Political Consensus and Legislative Determination of Ukraine's Foreign Political Course
We must reach political consensus and determine Ukraine's foreign political course at the legislative level. In accordance with Article 85 of the Constitution, the parliament "shall determine the guidelines of home and foreign policies which are the legal basis for the system of state management in Ukraine". Therefore, the guidelines set by the parliament should identify strategic objectives and principles of the state policy and serve as the basis for regulatory and normative acts related to all areas and sectors.
On the Way to a New Constitution
The local self-government reform and the future territorial-administrative reform create prerequisites for a more efficient system of government, and relevant changes in the Organic Law should only formalize these reforms. Within four years we have to carry out the local self-government reform and its logical continuation – the territorial-administrative reform. We should abolish the outdated division into administrative regions, build new balances and counterweights, and expand the political representation of the regions in the parliament. Besides, the territorial-administrative reform and the formation of new regions will build a basis for appointing regional executives by election. When heads of regional executive councils are appointed through direct elections in each region, local authorities will be more responsible before their communities.
A constitution is not just "a law of laws". In a democratic state it guarantees the most important things – liberty and justice for all. Such a constitution cannot be produced in an atmosphere of enmity. The main prerequisite for adopting the document that deserves the name "Constitution" is accord in society.
The constitution is not just a rigid code of certain rules. It is a living being that has to be "updated" to the changing demands of the people on whose behalf it is written. If we want its unconditional observance, all political forces should subscribe to each word they write in it. That cannot be achieved without a certain political compromise.
If we agree to accept these postulates as binding for all participants in the constitutional process, we can cope with the problems that obstruct our way.
"Zerkalo Nedeli", # 25 (654) 30 June – 6 July 2007 | |
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