Original article in Ukrainian by Mykhailo Savchyn, for UP
Translated by Anna Platonenko
The current constitutional crisis is a strong evidence that the Ukrainian society misinterprets the character of the Constitution and the social purpose it serves.
Unfortunately, the Constitution is viewed as a political instrument, which sets rules of the game for the participants of a political process and does not set the aim and contents of such activity.
But the main purpose of the Constitution is to secure the restriction of power abuse and guarantee human rights and freedoms.
However, those who hold power in Ukraine believe, that by virtue of their status, they can make decisions meeting the formal requirements only, i.e. following the letter of the law.
The current activity of the Verkhovna Rada of Ukraine proves there is still an illusion cherished by the majority of parliamentarians that this representative organ exercises absolute power.
It is commonly believed that the Parliament may interfere with any social issue, despite the constitutional principle of separation of powers.
Such interpretation perfectly fits into the Soviet stereotype of the boards with absolute power, which used to be the instrument of legitimizing the decisions made by party organs and had nothing in common with democracy.
However, today the Verkhovna Rada is still trying to interfere with the competence of the President of Ukraine, the Constitutional Court or local governments, the authority of which is secured by the Constitution of Ukraine.
This process is almost permanent. The Parliament adopts laws on the issues which in essence do not correspond with the nature of law. This is very well demonstrated by the common practice of granting privileges to various enterprises or defining the privatization peculiarities of certain enterprises at legal level.
This is the very thing that characterizes the politicians’ nature, according to which people in power can make any decisions by virtue of their being vested with proper authority.
It results in the fact that the government does not find itself restricted by definite legal framework, for any official interprets a law at his own convenience.
Under weak judicial power, such state of affairs endangers public security and creates all the possible conditions for law enforcement abuse.
One gets the impression that Ukraine is going through a stage of developing constitutionalism, being somewhat behind the countries of Central and Eastern Europe.
At the same time there is a wide gap in the development of civil society institutions and, what is more important, of a political system.
However, in comparison with the countries of Central and Eastern Europe, Ukrainian political parties rely upon big businesses, which is not at all typical of the other countries of this region.
The establishment of a proportional election system as a means of structuring the political system has exposed the presence of clientelism between big businesses and the political parties.
The structuring of the political system would probably be of more benefit if the proportional election system with the elements of preferences was introduced in multimandatory constituencies (i.e. voting for the regional party lists).
Under such a system, voters would therefore be able to define candidates in the suggested list of political parties at their own discretion.
No matter what the country is, the forming of a political system in society is closely connected with the government effectiveness.
By government effectiveness, one understands a real ability of the government institutions to make clear-cut and firm administrative decisions and implement them using minimum resources.
Democratic and authoritarian traditions considerably influence the legal setting of the Ukrainian government. The democratic tradition, however, is the result of natural development of Ukrainian community and society as a whole.
The democratic tradition has been observed since the constitutional order in the Cossack Hetman State (or Cossack Hetmanate), which reached its legal setting in the Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host (Sich), also known as the Constitution of Pylyp Orlyk (1710).
The authoritarian tradition in Ukraine was established when the Cossack Hetmanate entered the Tsardom of Russia. This tradition was later repeated in the totalitarian regime of the Soviet Union.
The Soviet constitutional heritage was based upon a non-recognition of restrictions to power: especially, of separation of powers and judicial control over the actions initiated by the authorities.
Courts in the Soviet Union were always considered as a mere appendage to the state apparatus, aimed primarily at implementing the government’s repressive function.
While the struggle between the democratic and authoritarian conceptions is still going on, a French model of government is being borrowed en route from Russia to Ukraine.
The country is adopting a semi-presidential form of government, which provides for the diffusion in the system of separation of powers and the dualism of the executive power.
According to Andrei Medushevsky, this form of government “is now regarded as the most adequate expression of aspiration to the constitutional modernization, retaining the effectiveness of the executive power.”
Ukrainian form of government provides for the existence of either a powerful government, or a powerful President, which depends on the results of the Parliamentary elections.
In case the pro-presidential forces make up the majority in the Parliament after the elections, the President has a very powerful, or even, deciding influence on forming and implementing the government policy.
If the majority is made up of the opposition parties, a period of the so-called “coexistence” is sure to begin. At the same time, strong rivalry in exercising executive power may be stirred up, for the President reserves the right to influence the government’s activity.
A semi-presidential system provides for the functioning of classical political parties, which rest upon an ideological and organizational basis and make up the main subject of forming the institution of state power by means of elections.
Political parties form the basis of the national political system through a branched network of party organizations and by means of inter-party procedures of forming the political will and its expression in the form of decisions, made by government bodies or suggestions to these decisions, made by the opposition representatives.
Since the Fundamental Law determines the main principles of state organizing, which rather characterizes the state as a semi-presidential form of government, the Parliament therefore comes into conflicts with the President.
A semi-presidential form of government reaches its completion when the political parties have a branched network of territorial centers, systematically cooperate with the electorate and uphold the rights and interests of the voters.
When the parties are weak and the political system remains unstructured, the semi-presidential system switches over to the superpresidential form of government what actually happened during Leonid Kuchma’s presidency.
Since the Parliament was unstructured at that time, it allowed Kuchma’s administration to manipulate him using administrative-command leverage, which was quite typical of the Soviet Union.
The Cabinet of Ministers had no support from the parliamentary majority. That is why the decision-making center was concentrated in the President’s hands, and government’s strategic functions were duplicated by the President’s administration.
Today, due to the constitutional modernization, the semi-presidential form of government is being combined with the structured political system and weak political parties of absolutely civil nature, which establish relations with the voters by means of clientelism.
In cooperation with the President, the Parliament received an opportunity of forming the government, relying on active support of the majority, based on the results of the Parliamentary elections.
Under such conditions the diffusion of power moves towards the relationships between the parliamentary majority the government rests on and the opposition.
Owing to the weak parties with clientelistic tactics, there are a number of favourable conditions today for forming a tyrannical system and applying it to the parliamentary majority.
This system threatens the democratic principles of the constitutional order and is a strong evidence of imbalance in the government.
In case there are conflicts over the competence of the government bodies, they are to be resolved by an impartial and independent judicial body. Under such conditions the Constitutional Court comes into action.
In the context of a semi-presidential government, the Constitutional Court secures the separation of powers and also performs an integrative and reconciliatory function.
Performing a reconciliatory function, the Constitutional Court secures the exercise of powers of the government bodies by keeping them within the constitutional framework.
If the point is that the conflicts over the competence in semi-presidential republics are to be resolved, a reasonable functioning of legal institutions should consist in the following:
The President performs the functions of a head of state and has reserve power, which is only exercised in certain exceptional circumstances such as government or parliamentary crises, or in a state of emergency.
The President can perform his arbitration functions in cooperation with the Verkhovna Rada or the Constitutional Court.
The Parliament fulfills the function of a nation’s political forum, where the principles of foreign and domestic policy are developed.
The Verkhovna Rada has a right to request that the government submits its activity programme for consideration. Moreover, the Parliament performs a legislative function adopting balanced laws, which are provided with all the necessary organization and resource potential, and also controls government and administration activity.
The government provides strategic planning with a view to further develop the social spheres of vital importance, which form a basis for taking definite political measures to secure the observance of law and for issuing the acts of individual character.
These are the minimum components that the Constitutional Court can take account of when examining the issues on the competence of a government body and its compliance with the Constitution.
If the analysis of the competence lies beyond this context, the overall purpose of resolving the competence disputes, i.e. the separation of powers, will be left out.
Performing the integration function, the Constitutional Court points to legal ways out of the crisis situation by taking legal measures.
The guarantee of this should lie in a public procedure of examining the problematic aspects of a government body’s activity, the constitutionality of a legal act of which is appealed against in case this body abuses its power or authority.
And again, the point is that the balance should be kept between the government bodies, which according to the Constitution of Ukraine should cooperate in order to achieve and promote common welfare.
There are two ways to secure an appropriate separation of powers in a semi-presidential republic: by stating the fact that the balance between the government bodies has been upset and by removing these violations, which is not enough.
Another way is the separation of powers in a system of democratic balance between the government majority and the opposition. No constitutional justice can show a marked preference to one or the other government body.
Since the Constitutional Court itself is included into the constitutional matrix, it is forced to be the element of this balance and under no circumstances can let the country become authoritarian.
However, Ukraine desperately needs a balanced Fundamental Law today.
The legal community cannot make mistakes and write the Fundamental Law for a certain political force or government institution any longer.
The men of law are bearing the brunt of implementing and interpreting the regulations of the Constitution, which should serve the general welfare, and first and foremost secure the rapid development of the country.
Mykhailo Savchyn, a master of laws, an associate professor of Zakarpatsky State University, for UP
