Independent for four years plus, Ukraine still lacks Constitution (12/31/95)

Independent for four years plus, Ukraine still lacks Constitution

by Marta Kolomayets
Kyiv Press Bureau

KYIV - Although Ukraine has been an independent country for more than four years now, to this day it is without a new Constitution.

The current law of the land is a mixed bag of legal documents, including the Constitutional Accord signed by the Ukrainian president and the Parliament this past June, remnants of the Constitution of the Ukrainian SSR, which was adopted in 1978, presidential decrees, parliamentary resolutions, ministerial guidelines and international documents, such as the United Nations Universal Charter of Human Rights.

Of all the former 15 Soviet republics, Ukraine remains the only one without a new Constitution, without the basic laws and principles of an independent state.

And although most politicians agree that it is impossible to put off the adoption of a new Constitution, according to representatives from the spectrum of political forces in today's Parliament, the day that a new democratic Constitution comes into force in Ukraine is still a long way off. When the Constitution is finally passed, it will be the 11th Constitution adopted in Ukraine by either national or Communist powers since April 1918.

Despite the fact that a 40-member Constitutional Committee was formed more than a year ago, in November 1994, it is only recently that a 10-member ad hoc subcommittee of this larger body escaped to a secluded former Communist Party resort in the woods, miles outside of Kyiv, to work on incorporating ideas, suggestions and changes proposed by deputies, government officials and legal experts into the rough draft of the Constitution.

The working document itself is lengthy and verbose; it numbers 38 pages, is divided into 12 sections and contains 159 articles. It is definitely not an easy read for the average Ukrainian citizen. By the time it goes through its final edit, no one is quite sure what the law of the land will look like.

Although the working group - which includes four presidential representatives, four representatives from Parliament and two representatives of the legal system - does not have a set-in-stone deadline to present the draft Constitution for examination to the full Constitutional Committee, Presidential Chief of Staff Dmytro Tabachnyk told reporters recently that the ad hoc subcommittee may be ready to submit its consolidated version in January 1996. (At press time, the subcommittee had agreed on 35 of the 159 articles in the Constitution.)

If approved by this full Constitutional Committee, the draft document will be presented to the Supreme Council, which then must approve the document by two-thirds majority, before as is expected, President Leonid Kuchma calls a national referendum on its acceptance.

According to Constitutional Committee member Oleksander Yemets, a deputy from the Reforms faction, there are actually four possible ways the new law may be enacted: approval by two-thirds majority in the Supreme Council, approval by a simple majority in the Supreme Council with subsequent ratification through a national referendum, approval through a national referendum on the principal provisions, or ratification through a national referendum initiated by the president of Ukraine.

Former President Leonid Kravchuk, who is now a people's deputy, does not think the Ukrainian Parliament will be able to pass the Constitution in its current form, nor does he agree with the above-mentioned mechanisms for adopting the document. Mr. Kravchuk does not see any possibility for this Parliament to come to a consensus and has suggested that a Constitutional Assembly be formed to adopt a new Ukrainian Constitution.

The "Constitutional Agreement between the Supreme Rada and the President of Ukraine on the Basic Principles of the Organization and Operation of State Power and Local Self-Government in Ukraine until a New Ukrainian Constitution is Adopted," known as the constitutional accord, was passed on June 8 of this year and is meant to be valid for one year only. Thus the Ukrainian Parliament is pressured to adopt a new Constitution by June of 1996. The Council of Europe requires that member-countries adopt a new democratic Constitution within one year of accession to the council. In Ukraine's case this is November 1996.

However, all the forces in the current Parliament, which is known in the new Constitution as the National Assembly of Ukraine, object to various principles in the new draft.

Most forces, ranging from Socialist leader and Parliament Chairman Oleksander Moroz to Reforms faction leader Serhiy Sobolev, object to the extent of powers given to the president of Ukraine. They are opposed also to the idea of a bicameral legislature, made up of the House of Deputies and the Senate, because they believe Ukraine may not be ready for this idea.

"The draft does not provide for the distribution of power," said Mr. Moroz, who expressed concern that a "two-chamber Parliament may bring about a growth of separatist sentiments and seal the ineffective regionalization of the country. And, a two-chamber Parliament may also weaken the legislative branch in Ukraine."

His sentiments were echoed by democratic parliamentarians Volodymyr Stretovych and Oleksander Lavrynovych, who view a bicameral Parliament as the first step to Ukraine's federalization.

Vyacheslav Chornovil, the leader of both the Rukh party and the Rukh faction in Parliament, agreed that for present-day Ukraine a single-chamber Parliament would be more effective.

He strongly criticized the draft Constitution, stating that it should be "completely redrafted." Among its most significant drawbacks, he added, is that it is "anti-national, anti-organized party and anti-parliamentary."

Other lawmakers in Parliament objected to the fact that this Constitution is a "presidential Constitution," where all the president's men have made the executive branch powerful. For example, the country's executive officer has power to dissolve the House of Deputies in two instances: if, in a three-month period, the legislature does not approve the president's choice for prime minister; and if the House of Deputies, in the course of 60 days, twice rejects the agenda of the Cabinet of Ministers.

Mr. Tabachnyk, however, denied that the Constitution was written to make President Kuchma a more powerful leader. "Presidents come and go, but this Constitution is written for many future generations," he explained.

"The problem will be how much support President Kuchma can muster for his own Constitution in the Parliament," said Petro Matiaszek, executive director of the Council of Advisors to the Parliament of Ukraine. "As time goes on, the president's dream team loses ground," he added.

A lawyer by profession, Mr. Matiaszek also noted that there are quite a few vague, undefined points in the Constitution, which are worrisome.

For example, Ukraine's national symbols - the state flag, the coat of arms and the national anthem - are all determined by law. As a result, he notes, any political group can alter state symbols, not by amendments to the Constitution, but by mere passage of a bill.

Another problem is that, although the draft Constitution declares that the Ukrainian language is the state language in Ukraine, "in areas of dense population of citizens who are members of one or several minorities, the language accepted by the majority of the populace in such locations or in a certain administrative territorial entity can be used in the activities of bodies of state power and state organizations along with the state language."

He also noted that senators - there are 80 in this new chamber, formed on the basis of direct equal representation - are elected for the term of four years via "indirect elections." That mechanism is not defined in the Constitution.

Indeed, a positive aspect of he Constitution foresees the absolute liquidation of the Soviet system of law and the formation of a judicial branch, with justice administered via the court system.

Some Communist and Socialist deputies were troubled that the system of councils also is abolished in this new Constitution, and during the meeting of the Presidium of the Supreme Council last week rejected the draft document, suggesting that the working committee use the last Constitution of the Ukrainian SSR as a model to work with.

Yuriy Bauman, a political analyst and parliamentary observer, called the proposed Constitution of Ukraine "a copy of the Russian Constitution, but even worse," adding that Ukraine copied its neighbor's document's political power structure quite religiously, despite the fact that it may not work for Ukraine.

"One Russian leader has praised the Ukrainian draft Constitution and that, in my mind, is reason enough to worry," he added.

Parliament Chairman Moroz expressed worry that the Ukrainian president wanted to hold a national referendum on the Constitution. "We should look at what happened in Russia, where the law of the land was adopted by referendum. Today's electorate can vote for anything, from monarchy to anarchy," he said.

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