WILL UKRAINE HAVE NEW CONSTITUTION?

President Viktor Yushchenko has begun his drive to reverse the 2004 constitutional reform. His goals include boosting presidential powers and weakening the legislature. On February 20 Yushchenko convened the first meeting of the National Constitution Council (NKS), consisting of 97 experts and politicians, to share with them his outline for a new constitution. The Council should start to work on February 26. Yushchenko expects a new draft constitution to be ready within six months, in time for the 2010 presidential election in which he will probably run.

The current Ukrainian constitution was adopted in 1996. Initially, it created a very strong president who could fire the prime minister and government any time and who formed governments single-handedly. The reform of 2004, which was enacted in 2006, weakened the president vis-à-vis the Cabinet of Ministers and parliament, so the prime minister and government are now picked by a majority in parliament, rather than the president, and the government subsequently works more or less independently of the president.

Yushchenko’s supporters argued that the 2004 reform was devised to weaken him, making it difficult for Yushchenko to replace the corrupt post-Soviet elite. Yushchenko has never concealed his dislike of the reform. In August 2007, he made public the idea of forming the NKS in order to reverse it. Yushchenko maintains that the current constitution is too imperfect to be amended, so an entirely new constitution should be drafted. On December 27 he signed a decree authorizing the NKS to draft a new constitution.

Addressing the NKS on February 20, Yushchenko made it clear that he would bypass parliament if MPs fail to cooperate in drafting a new constitution. He said that the constitution will not necessarily be passed by parliament, but it can be adopted by a national referendum “at the initiative of the people.”

Yushchenko’s skepticism about assistance from parliament for working on a new constitution is justified, as people’s deputies are unlikely to gladly accept cuts to their authority. He said that the constitution should provide for a “comprehensive status” for the president as the guarantor of national sovereignty, territorial integrity, and the constitution, and that the president should play a key role in shaping foreign policy, and national security and defense. Yushchenko said that the remits of the president and the government in this field currently overlap. The Ukrainian edition of the Russian business daily Kommersant summed it up by saying that Yushchenko wants to make the presidency a separate branch of power.

Simultaneously, Yushchenko wants the constitution to cancel MP immunity from prosecution and to increase the role of regional governments, thereby weakening the parliament-backed central government. In order to ensure support for a new constitution in a popular referendum, Yushchenko proposed giving citizens the right to appeal directly to the Constitutional Court, the right to draft laws and submit them directly to parliament, and the right to cancel laws by referenda.

The pro-opposition commentator Mykhaylo Pohrebynsky told Glavred that Yushchenko would violate the law by offering a new draft constitution for a referendum, because the current constitution allows only amendment; it does not say anything about invalidating the constitution. However, Ivan Tymchenko a former chairman of the Constitutional Court (CC), said that the current constitution does not forbid the president from calling a popular referendum to approve a new constitution. He added, however, that Yushchenko should secure approval of his draft constitution by the CC before calling a referendum.

Commentator Oleksy Taran expressed reservations about the composition of the NKS. He noted that the Council includes very few representatives of non-governmental organizations and that several prominent constitutional experts, such as a former deputy parliament speaker Viktor Musiaka, were not invited to participate. Among the top politicians sitting on the commission are Prime Minister Yulia Tymoshenko; her predecessor, Viktor Yanukovych; presidential chief of staff Viktor Baloha and several of his deputies; National Security and Defense Council Secretary Raisa Bohatyryova; parliament speaker Arseny Yatsenyuk; his predecessors Volodymyr Lytvyn and Ivan Plyushch; and Communist leader Petro Symonenko. The NKS also includes scientists and people’s deputies representing both the coalition and the opposition.

People’s deputy Dmytro Tabachnyk, who is one of the representatives of the opposition Party of Regions (PRU) on the NKS, said that his party and the Yulia Tymoshenko Bloc (BYuT) are against rewriting the constitution altogether. He said that the PRU and BYuT can only back new constitutional amendments. Another PRU deputy, Inna Bohoslovska, was more outspoken. She warned that Yushchenko wants to strengthen the presidency “in accordance with the all-power-no-responsibility model like it was under [Yushchenko’s predecessor] Kuchma.” Symonenko also strongly disagreed with Yushchenko’s plan.

(President.gov.ua, February 18, 20; NTN TV, Glavred.info, February 20; Kommersant Ukraine, Gazeta, February 21, 24)