Abstract
The new wave of the ‘Euro Revolution’ in Ukraine has revealed yet another glaring gap in the country's social and political order: a constitutional one. The violation of Ukrainian citizens’ basic constitutional rights and freedoms, against the backdrop of excessively wide and frequently abused presidential powers, called for the emergence of a constitutional agenda for the revolutionary movement. The re-transition to the parliamentary-presidential form of government, accomplished in mid-February 2014, represents only the first stage of the constitutional agenda set by ‘Maidan’. Further changes to the form of government are forthcoming, which will very likely see Ukraine become a parliamentary republic. The constitutional process has been suspended, however, due to various constraining factors, both internal (the upcoming presidential elections) and external (Russia's aggression in Crimea). Given the inherent demand for a continued constitutional transition to a parliamentary republic, the process is likely to be accomplished by the end of 2014.
Introduction
Revolution and the constitutional process in Ukraine have always been inextricably linked. The ongoing constitutional changes being made as a result of the most profound revolution to have yet taken place in Ukraine appear to confirm that Ukrainian constitutionalism remains revolutionary in its nature.
This article shall therefore trace this linkage via the historical landmarks of constitutional development in Ukraine, and assess its bearing on the current mode of the country's constitution-making. Against the backdrop of the two recent revolutions, the causes and effects of the major constitutional changes since 1996 are revealed. Finally, the premises and promises of the current 2014 constitutional transition are explored.
Ukrainian constitutionalism emerged in the wake of the Ukrainian Cossacks’ fight to limit the monarchical powers of the metropolises in the seventeenth to eighteenth centuries, and survived the first colonial phase of constitutionalism in the nineteenth and early twentieth centuries during imperial dependence on the rule of the Russian and Austro-Hungarian empires. As a result of the nationwide democratic revolution in Ukraine in 1917–20, a new dimension of national constitutionalism emerged, which evolved based on the revolutionary parliamentarianism of the Ukrainian Central Council. Following the establishment of Soviet rule in Ukraine in the 1920s, the ideology and instrumentalised politics of so-called Soviet (socialist and, in fact, totalitarian) constitutionalism were introduced. This relied on the authority of the Communist party in a one-party system and actually sought to subordinate members of society to the state (according to the USSR's Constitutions of 1924, 1936 and 1978). The system of Soviet constitutionalism lasted until the end of the 1980s when it was virtually abolished by the national democratic revolutions that took place, not only in Ukraine but in all republics of the former Soviet Union.
In Ukraine, where national constitutionalism had maintained deep roots, its revival was one of the main tasks of the ‘Granite’ Revolution of 1990–1. In this peaceful revolution, the Verkhovna Rada (the parliament) played a prominent role, which is why it thereafter took a central position in governing the state. Significantly, this was the key to the introduction of classical constitutionalism in Ukraine, which encompassed people's sovereignty, the division of powers and the rule of law as imperatives of constitutional order. This process of introducing classical constitutionalism was marked by the unprecedented adoption of the first Constitution of independent Ukraine on the single night of 28 June 1996. It should be highlighted, however, that this constitutional setting explicitly embodied the state system that had emerged, rather than the existing social order of the multinational Ukrainian state.
Another turning point for modern Ukrainian constitutionalism, on its transitory path from a somewhat (proto-)authoritarian form to a more democratic one, was also undeniably revolutionary in its nature. This was the constitutional transition attempted (but thus not irreversibly accomplished) in the wake of the ‘Orange Revolution’ of 2004. It was then that the previously established presidential–parliamentary form of government was replaced by parliamentary–presidential rule (Law no. 2222-IV). 1 This transition to a weaker semi-presidential rule promised to prevent the abuse of power by government institutions, to put an end to the authoritarian path of Ukraine, and thus to achieve a better system of checks and balances in order to help to stabilise the social and political order of the country.
The article uses terminology coined and applied within Ukrainian political discourse as regards forms of government. Although labelled differently, it corresponds with the main forms of government as understood by scholars of comparative politics. Thus, ‘parliamentarianism’ and ‘presidentialism’ coincide with Ukrainian and international political science terminologies; however, the terms ‘semi-parliamentarianism’ or ‘parliamentary–presidential government’, commonly used in Ukraine, correspond with what is known internationally as a form of semi-presidentialism, namely ‘weak semi-presidentialism’. In Ukrainian, the terms ‘semi-presidentialism’ or ‘presidential–parliamentary government’ are used to conceptualise what is known in international political science as another form of semi-presidentialism, namely ‘strong semi-presidentialism’.
Undoubtedly, the transition to a constitutional order that respects the values inherent in most modern constitutional democracies not only strengthened the legal basis of the state's new order but also a priori provided for broader public support and thus the greater legitimacy of government institutions.
The constitutional ‘affaire’ of 2010
However, this great upswing in legitimacy, granted in advance to the newly formed government in 2010, shrank dramatically when the new Ukrainian authorities reversed the constitutional process immediately after coming to power. This significant step did not even comply with the existing Basic Law of the country. This paralegal activity heavily undermined constitutional progress and, for the first time in the history of Ukrainian constitutionalism, caused the legitimacy of the constitutional process to be questioned. The legal part of the process featured paralegal, that is, seemingly legal and thus explicitly anti-constitutional, methods of constitutional change, undertaken by President Yanukovych's team. The key to this paralegal undertaking was making a technical change to the Constitution's text as if it was a normal law. As such, this ‘constitutional change’ happened in an explicitly unconstitutional manner, and even the prescribed participation of Parliament in the procedure of amending the Basic Law of Ukraine was neglected.
Consequently, the new version of the Constitution created in 2010 was the result of the sole decision of the Constitutional Court of Ukraine on 30 September 2010 (CCU 2010), and a series of consequent institutional ‘corrective’ actions. This decision was adopted upon receipt of a constitutional petition from 252 parliamentarians who requested that Law no. 2222-IV of 8 December 2004 be declared unconstitutional. Interestingly, the Constitutional Court adopted a unique (both in terms of the content and the consequences) decision to approve the petition. Thereby, the Constitutional Court revisited its own precedent, which had only been set two years previously when precisely the opposite position had been expressed.
The judicial ‘activism’ of the Ukrainian constitutional judges could have appeared as them taking a natural path towards the development of a modern judiciary, increasingly (but at least justifiably!) self-authorising themselves as lawmakers, if it had not been for the contradictory nature of their actions and the legally impermissible substitution of concepts which ‘accompanied’ those actions. Such actions were probably quite exceptional for the Court's collegium itself and this was made clear in the Dissenting Opinion of Justice Stetsiuk (2010). The ‘restoration’ of constitutional norms–-as per this innovative and far-reaching judicial undertaking–-still has not been justified, and both a normative and a regulatory method are still lacking. Thus, it is not surprising that the Court, back in 2010, did not prescribe how this innovative action was meant to be exercised: it could not. The simple fact that the Constitutional Court of Ukraine itself violated the Basic Law–-by substituting concepts and quasi-retracting Law no. 2222-IV–-not only gave rise to the de-legitimation of this state authority, but also reflects the depth and breadth of the legal and judicial cynicism among Yanukovych's government. Hence, de jure no changes to the Constitution of Ukraine were properly introduced, while de facto technical changes to the text of Ukraine's Basic Law were skilfully made. This led to growing popular non-acceptance of the state authorities, including the Constitutional Court, whose legitimacy was questioned for the first time in the history of Ukrainian constitutionalism. Given the technically skilful operation (or to put it bluntly–-‘affaire’) undertaken to amend the constitutional order, there was little reaction from the people, while the legal counteractions attempted by the opposition forces seemed to be useless against the de facto ‘captured’ state authorities. Perhaps another, less skilful, and more brutal and cynical violation of the people's constitutional rights and freedoms, and of the constitutional order itself, was needed to again reconnect the constitutional process with revolution?
Maidan's constitutional agenda?
Soon after Euromaidan rose up to protest in November 2013, which the state authorities failed to respond to but succeeded in illegally suppressing, the revival of the constitutional order, associated primarily with limiting the presidential powers, became an urgent imperative of the revolution. The starting point for calls for constitutional re-transition and, at the same time, the point of no return, was the notorious ‘Black Thursday’, 16 January 2014. On that day, the government not only cynically demonstrated that the rule of law could paradoxically be ‘ruled’ in Ukraine, but it also encroached upon the constitutional order of the state which it was obliged to protect. The attempts to alienate the inalienable rights and freedoms of their own people triggered an irreversible mechanism of civil resistance (that, in fact, had been in standby mode since the elections and constitutional ‘affaire’ of 2010) and brought the constitutional agenda to the forefront of the revolution.
Further neglect of the Constitution and the laws of Ukraine by the constituted, that is established, authority (pouvoir constitué) itself, as well as the senseless inflaming of the conflict with its own citizens–-the genuine constituent, that is establishing, authority (pouvoir constituant)–-clearly demonstrated that a solution to the crisis was possible only through the restoration of constitutional order. This is why the main tenor of Maidan shifted from the initially pursued demand for the return of the ‘stolen’ political association and economic integration with the EU to a demand for the return of ‘stolen’ rights and freedoms, the people's Constitution.
The idea and the persistent revolutionary demand to return to the 2006–10 constitutional order not only expressed people's belief that this version of the country's Basic Law much better reflects Ukrainian ideas in terms of how they wish to be governed, but also testified to the importance of restoring the constitutional order. Therefore, the re-transition to a semi-parliamentary system of government was essential, both for the successful resolution of the most acute social and political crisis to occur in independent Ukraine and for the feasible prospect of a return to statehood based on the rule of law. To put it simply, the constitutional re-transition in Ukraine was vital as the means of accomplishing a re-transition to the ‘lost’ democracy. Interestingly enough, this idea was not only consonant with the aspirations of the vanguard Ukrainian community and the broader revolutionary movement, but also conformed with the mood among a large part of the country's political elites, including those in what was then the ruling camp. The idea and the prospects for a constitutional re-transition in Ukraine, that is, a return to the previously maintained constitutional setting, were, moreover, seen by Brussels as key to settling the Ukrainian crisis and accomplishing its unfinished transition to a fully fledged democracy (Ashton 2014).
The premises and promises of constitutional transition in Ukraine
Following a short but eventful period of euphoria that the new ‘agents’ of constitutional reform, basically the three opposition parties, translated into their–-distinct–-visions of the country's future constitutional setting, a compromise was reached to disregard all of them. Therefore, on 3 February 2014, in the name of the united opposition, the All-Ukrainian Union ‘Fatherland’ (‘Batkivshchyna’) tabled a constitutional bill in the Verkhovna Rada, which stipulated a return to the constitutional order of 2004 in its genuine form. One has to admit though, that the process leading to this compromise proceeded rather feverishly and thus was not devoid of its own legal pitfalls and deficiencies. The manifold efforts of numerous stakeholders from both the ruling and oppositional political camps, as well as organised civil society, occurred under the general label of a ‘return to the constitutional order of 2004’, which provided a surplus of legitimacy to the process. It should be emphasised, however, that several different versions of transition to the social and political order, as established by the amended Constitution of 2004, were tabled, including a number of contrasting and extreme options–-from transition to classical parliamentarianism to an even greater strengthening of presidentialism. The latter, offered by the All-Ukrainian Union ‘Freedom’ (‘Svoboda’), was obviously quite contrary to what had been demanded by the Maidan revolutionary movement, but quite in line with their anticipated poor election results.
Finally, on 21 February 2014, the Verkhovna Rada adopted Law no. 742-VII ‘On Restoration of Certain Provisions of the Constitution of Ukraine’. Given President Yanukovych's failure to sign the bill, this law was supplemented with a parliamentary resolution enacting the amendments to the Constitution and the restoration of the wording of the text of 8 December 2004. The resolution also took into account the changes made in 2011 (Law no. 2952-VI) and 2013 (Law no. 586-VII). Following the publication of the law in the official journal, the constitutional order of 2004 was restored. It has been in force in Ukraine since 2 March 2014.
Accordingly, several crucial adjustments have been made in order to return to a parliamentary–presidential form of government in Ukraine, which has considerably widened the scope of power granted to the Parliament, while at the same time constraining the powers of the president. Additionally, a stronger and more independent prime minister has enhanced the system of checks and balances under the renewed constitutional order. For instance, the prime minister is now the ex officio chief executive, but this excludes authority over the ministries of defence and foreign affairs, as well as the security service, which remain the responsibility of the president. Parliamentary powers have been considerably extended with respect to controlling the government (ministers, except for the aforementioned, are now subordinated to a parliamentary majority) and the president (the Parliament can overrule a presidential veto; laws enter into force upon their signature by the speaker of the Parliament). Under the current Constitution, the parliamentary speaker (currently Oleksandr Turchynov) becomes acting president in case of the president's death, resignation or impeachment. The prosecutor general, who plays a very important role in the country's justice system, will once again be appointed and dismissed by a parliamentary majority.
Despite all these essential innovations, the constitutional transition in Ukraine is not yet complete. The return to the 2004 version of the Constitution should be regarded as a temporary constitutional settlement; it does not correspond with current demands for constitutional development in the country and has previously been a matter of concern for the Venice Commission (2010). Although the 2004-type constitutional order offers ‘increasing parliamentary features of the political system’, such constitutional amendments, however, ‘do not yet fully allow the aim of the constitutional reform of establishing a balanced and functional system of government to be attained’ (Venice Commission 2005).
Conclusion
As revealed above, revolution and the progression of the constitutional process in Ukraine are closely related and even mutually determining to some extent. Yet the process of constitutional change has proceeded against the backdrop of a plethora of protest and revolutionary movements. It was pursued in order to solve political order problems rather than social order ones, and has done so in an explicitly accelerated and tense way. The use of revolutionary methods to adopt a social contract obviously does not suit the very scope of the document, and has thus resulted in numerous legal collisions and political manipulations. After all, it is no secret that independent Ukraine's very first Constitution was a compromise document, meant to embody the emerging state structure and not the emerging social order. In Ukraine, political order develops considerably slower than social order, which is why the spirit and the letter of the Basic Law require dynamic updates. It is not surprising, therefore, that a sort of vicious circle of ‘revolution–constitution–revolution’ has captured both the vulnerable state and society in Ukraine. Having emerged in the wake of massive popular dissatisfaction in the first half of the 1990s, the constitutional process in independent Ukraine matured on the revolutionary crest of the ‘Orange Revolution’ in 2004, was essentially reversed following the 2010 constitutional ‘affaire’, and, finally, has been reborn with the second revolutionary awakening of 2013–14–-in the multi-layered and multi-tasked ‘Euro Revolution’.
Finally, under the conditions of the transition of power in Ukraine, which de facto succeeded on 23 February 2014, it is absolutely vital that the constitutional process is not paralysed by the current piecemeal reforms. The hoped-for comprehensive constitutional transition in the country must be accomplished for the vicious circle of ‘revolution–constitution–revolution’ to be broken at last, and to ensure that revolutionary constitutionalism does not become a permanent feature of the constitutional process in Ukraine for decades to come.
Footnotes