ANALYSIS: A closer look at Ukraine's Constitution (08/04/96)

ANALYSIS: A closer look at Ukraine's Constitution

by Petro Matiaszek

It would be impossible to discuss here the content and implications of all 161 articles of Ukraine's new Constitution; for this reason I will focus on several of the more interesting aspects of the document.

As already reported, Ukraine's new Constitution was adopted by Parliament on June 28 after an all-night, marathon session. Lest there be any doubt, it is important to note that the adoption procedure was entirely legitimate under Ukrainian law, and deputies had ample time to review and discuss progressive drafts over the course of many weeks and months. The voluminous parliamentary record attests to the fact that consistent attempts were made to reach consensus, and to take as many differing viewpoints into consideration as possible.

Also, the constitutional drafting process was unequivocally multilateral, i.e., with the participation of the executive, Parliament and judiciary, and the academic community as well. While the president may have raised the political ante in the days immediately preceding the Constitution's adoption by issuing a decree to hold a national referendum in September, he had to agree to compromise nonetheless.

Following are the salient points in the new Constitution of Ukraine.

1. The Constitution has 161 articles, divided into 14 chapters, and is accompanied by a special transitional chapter with 14 points.

2. Roughly 30 percent of the 161 articles deal with the rights and duties of individuals and citizens. Much of the language in this area is taken virtually verbatim from the various European human rights conventions.

3. Crimean autonomy is firmly enshrined in the document, replete with a list of the specific authority vested in the Crimean government by the national government. Nonetheless, the Crimean Constitution (national democrats lost their bid for a Crimean "statute" or "charter") must not contravene the Ukrainian Constitution.

4. At first glance, it would appear that the long-standing conflict over state symbols has largely been settled, with the Communists and other left-wing MPs compromising by receiving certain concessions on the constitutional status of the Crimean peninsula in return. However, while the blue-yellow national flag is relatively clearly defined in the new Constitution, the Great State Coat-of-Arms is not described, and the traditional Ukrainian trident is not mentioned by name at all, but is merely reffered to as the "Royal State Seal of Volodymyr the Great." Ukraine's national anthem will remain officially mute as a new official text needs to be adopted. The requirement to describe all of these state symbols in laws adopted by two-thirds majority in Parliament will be difficult to meet.

5. The thorny language issue has been resolved. Compromise was finally reached by inserting the word "Russian" where minority languages are mentioned. Ukrainian is the state language, and a major victory for center-right MPs is the provision that the state "guarantees the comprehensive development and use of the Ukrainian language in all spheres of society throughout the entire territory of Ukraine" (Article 10). Nonetheless, the specific use of languages must still be regulated by law.

6. One likely conflict on the political horizon will be the issue of the national deputies' oath (Article 79), with a large segment of the left-wing contending that the oath, which mandates allegiance to Ukraine, is obligatory only for deputies elected to the next Parliament, i.e., in 1998. The vast majority of MPs, including the leadership of Parliament, took the oath during a special ceremony on July 12. According to the new Constitution, refusal to take the oath results in the loss of a deputy's mandate. It is difficult to foresee that the parliamentary leadership will bar those who did not take the oath from attending the next session of Parliament, while the vagary over the issue and the lack of a clearly defined mechanism for enforcing the oath will likely result in a tabling of the issue until the next Parliament convenes in 1998. At that point, however, Ukraine's Communist Party will have to field candidates ready to at least pledge allegiance to Ukraine, should they be elected.

7. Intense political maneuvering will follow the application of Article 78. That article, which prohibits lawmakers from working in both the legislative and executive branches, and from working professionally, was reinforced by a special parliamentary resolution passed on June 28. Many MPs have already made their choice. This will affect over 50 national democrats and centrists. But it also affects over 30 MPs from the Communist faction, who work as collective farm directors or in other positions. They, too, will have to choose by the time Parliament reconvenes on September 3. As a result, the political spectrum of Ukraine's Parliament will likely change significantly by fall, with many electoral districts left unrepresented until by-elections are held. (The next regular elections to Parliament will be in March 1998.)

The Parliament also faces a substantial reorganization of its committees (previously known as "commissions"), and of its administration, which will likely include a long-awaited, deputy-supervised, semi-autonomous financial office, a general director approved by a plenary vote, and stricter adherence to the regulation on filling vacancies via open competitive recruitment.

With the adoption of the new Constitution, the Supreme Council also loses its executive organ, the Presidium, a throw-back to the Soviet period, which allowed commission chairmen to pass resolutions and make binding decisions. Without a presidium, the Parliament's work agenda will be set through the collective consultation of the committee chairmen and the heads of political factions with the Parliament chairman, with the latter receiving enhanced over-all authority under the new system.

Interestingly, the right of legislative initiative in the Supreme Council now belongs to the president, the national deputies, the Cabinet of Ministers and the National Bank, but no longer to the parliamentary committees themselves.

8. The Constitution clarifies much of the previous uncertainty that existed surrounding the role of the president vis-à-vis the prime minister, and vice-versa. The president now is the head of state, while the Cabinet of Ministers is the highest executive body. Presidential control over the Cabinet remains extensive, but has nonetheless been curtailed: the president now needs the support of the prime minister to exercise certain authority. Much of the detail regarding this area, and many other areas of the Constitution, needs to be elaborated by law, thus necessitating major amendments of current legislation, the adoption of new laws and regulations, and the development of a comprehensive administrative reform program to overhaul the management of the country.

The president appoints a prime minister following approval by the Parliament. On the recommendation of the prime minister, the president appoints members of the Cabinet, the heads of other central bodies of the executive branch, as well as heads of the local state administrations, and dismisses them.

Within the next three years, the president has the authority to issue decrees approved by the Cabinet and signed by the prime minister on economic issues not regulated by law, with simultaneous submission of an appropriate draft law to Parliament.

The president may terminate the authority of Parliament prior to the completion of its term if within 30 days of a single, regular session, plenary sessions cannot be convened.

9. Well ahead of the constitutionally mandated deadline of September 28, a new Cabinet of Ministers of Ukraine has already been formed and new ministerial and other appointments have been steadily progressing.

The size of the Cabinet has been limited by Article 111 and is to consist of the prime minister, a first deputy prime minister, three deputy prime ministers and the various ministers.

The resignation of the prime minister results in the resignation of the entire Cabinet. The adoption of a resolution of no confidence in the Cabinet by Parliament automatically results in the resignation of the entire Cabinet.

10. Legislative authority is vested in the Supreme Rada of Ukraine, the Parliament, which will remain a unicameral body of 450 national deputies representing single-mandate districts throughout the country.

Parliament has the right to override a presidential veto by a two-thirds majority.

Parliament has the right to hold a vote on no confidence in the Cabinet by a majority of the constitutional composition of the Parliament. (The constitutional composition of the Supreme Rada is 450 deputies). A vote of confidence in the Cabinet of Ministers may not be considered more than once during a single regular session, and not within the year immediately following the approval of the Cabinet's activity program.

The president may be impeached by Parliament in the event of the commission of state treason or another criminal act.

11. Under the new Constitution, the court system will be modified, but only time will tell whether the judiciary will emerge as a true third branch of government. Also, it is unclear how influential the 18-member Constitutional Court will turn out to be. Justices will be evenly appointed by the president, Parliament and the special assembly of judges. The Constitutional Court is to be formed in accordance with the Constitution by the end of September 1996. Until its establishment, Parliament is charged with interpreting the law.

A new court system of general and specialized jurisdiction is to be formed within five years. Under the new system, the president will singly appoint judges for a five-year term. When their term expires, Parliament will then have the opportunity to appoint them for life, or dismiss them.

12. According to the Constitution, the state ensures the protection of all forms of property rights and its management. All subjects of property rights are equal before the law (Article 13). Every person has the right to control, use and manage his property. ... The right to private ownership is obtained according to the procedure prescribed by law. ... The right of private ownership is inviolable (Article 11). While the principle of private ownership is constitutionally enshrined, when it comes to land ownership, read carefully: "Article 14. Land is the essential national asset and receives the special protection of the state. The right to land ownership is guaranteed. This right is achieved and realized by citizens, legal entities and the state in accordance with the law."

There are two potential problems with this language. First, there is no explicit reference to private land ownership, and second, there is no explicit reference to individuals among those who have the right to land ownership, only "citizens," which raises the old specter that this might be construed to mean in collective form only or predominantly (read: preferentially). There is also no explicit reference to foreigners among those eligible to own land, though "legal entities" almost always is construed to include this category of right-holders.

Regarding business activity, "Every person has the right to conduct entrepreneurial activity which is not prohibited by law" (Article 42). Furthermore, the state protects the principle of competition in business and the rights of consumers.

The legal status of property, the legal basis and guarantees of entrepreneurship, competition rules and the norms of anti-monopoly regulation, and much else, must be determined by law.

13. Ukraine will continue to be a unitary state, and will consist of 24 provinces (oblasts) and the Autonomous Republic of the Crimea. These will further be divided into roughly 450 regions (raions). The provinces and regions will possess elected councils and appointed state administrations. Regional councils and regional state administrations will be subordinated to their respective provincial counterparts. Decisions of the lower entities may be overturned by the superior entities.

Chairmen of the provincial and regional councils are to be elected from among the respective council members, which are themselves directly elected by the people.

The heads of the provincial and regional state administrations are appointed and dismissed by the president upon the recommendation of the Cabinet.

14. A draft law on amending the Constitution may be presented to Parliament by the president or by at least one-third of the deputies themselves. Amendments regarding certain chapters, essentially those dealing with such fundamental issues as elections, the amendment process itself, and the general principles chapter, require a two-thirds majority in Parliament followed by a national referendum. Amendments to other chapters require only a final two-thirds vote in Parliament.

15. Russian or any other foreign military basing in Ukraine is now constitutionally prohibited, though Point 14 of the transitional chapter recognizes the continued temporary basing of existing installations according to leasing agreements.

16. Aliens are granted the same constitutional rights as citizens, but bear the same responsibilities as well, a formulation found in many constitutions around the world.

Casual readers and scholars alike should be aware that an official English-language translation of the new Constitution has yet to be published. The Ministry of Justice, which has recently been confirmed by the president as Ukraine's official source and publisher of legal information (much to the dissatisfaction of the Parliament, which had enjoyed a virtual monopoly in this area), will publish an official English translation of the text, as well as translations into other languages (the publication of an official Russian-language translation is imminent). Until then, all translations are strictly unofficial (i.e., unsanctioned and unauthorized by the government). An unofficial English translation is available in electronic format, free-of-charge, from the Council of Advisors to the Parliament of Ukraine. Contact: [email protected].

Reliable sources have indicated that in the official Russian text, both the national Parliament and that of Ukraine's Autonomous Crimean Republic will be known as the "Verkhovnaya Rada," a direct translation of the Ukrainian "Verkhovna Rada," but preserving the distinctly Ukrainian word for council - "rada"; in Russian, the word is "soviet." In contrast, in the Russian text, provincial (oblast), regional (raion) and local representative bodies are referred to as "soviets."

By introducing the word "rada" into official Russian-language lexicon, the Crimean Parliament will face a difficult political choice: either use the Ukrainian word "rada" in its official name, or use the Russian word "soviet," and thereby, at least semantically, relegate itself to the status of a provincial (or even lesser) representative body.

As in any country, at any particular stage in its history, a constitution, laws and regulations are only as significant and sound as the political and social culture they serve to define. The real test of Ukraine's new Constitution will come with its elaboration in laws and practice.

Critics will point to the size of the document; others to the presence of positive social rights (to housing, work, etc.). It cannot be overemphasized that the fact that Ukraine has a completely new, modern, European-modeled Constitution is tremendously important. It not only allows the political leadership of the country to redirect its attention to pressing economic issues, it also allows citizens at all levels of society to look to the future, rather than remain hopelessly mired in a Soviet-style, legal and bureaucratic past.

The new Constitution has already attracted a great deal of positive support from the international community, and Ukraine's image as an increasingly stable, coherent, European country will continue to grow.

Petro Matiaszek, an American-born attorney, is executive director of the Council of Advisors to the Parliament of Ukraine in Kyiv.

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