Thursday, 24 September

Recently, the President’s representative in Parliament Ruslan Stefanchuk talked about the need for changes in the Constitution. If not in general, then at least in the section on rights and freedoms. The restoration of the Constitutional Commission was also announced. Read further whether there is a need for such changes, how it should happen, and whether the main law of Ukraine is indeed somewhat outdated.

Does the section of the Constitution of Ukraine on rights and freedoms require changes?

Dmytro Sinchenko, the head of the public organization Association of Political Sciences, insists on the need for changes since the Constitution was created by people who grew up in the Soviet Union and were “infected with communist ideas”. In the end, this was reflected in the main law of our country.

“These provisions often hinder the needed reforms, despite the fact that they have never been implemented in practice. This applies, for example, to “free” housing, “free” education, “free” medicine, the prohibition to reduce the network of medical institutions, the right to education in minority languages in public institutions, etc. All these things create a huge burden on the budget and have never been fully financed, all these points have always been violated, and no one took responsibility for the violations. It’s time to finally admit that nothing is free.”

Andrii Martynov, the doctor of historical Sciences, calls the desire to amend the Constitution “a national kind of political sport”. But the section that Zelensky’s team plans to change initially, according to the expert, is one of the best.

“But the Constitutional Court did not guard the rights and freedoms of citizens. In particular, restrictions of constitutional rights and freedoms of citizens by normative legislative acts have become a political and legal practice, in fact since 1996. Perhaps the version of changes by the Servant of the People is about the virtualization of state functions, the so-called “state in a smartphone”, which fits into the libertarian stereotypes of party’s ideologists. But any changes to the section on rights and freedoms require a referendum as a final tool for approving the changes. And there is no law on the constitutional referendum.”

The Executive Director of the Ukrainian Helsinki Human Rights Union in 2004-2012, Volodymyr Yavorsky, agreed in a comment to Human Rights Center ZMINA with the need to change the section but stressed that all editions should be discussed publicly.

“I do not believe that our Constitution is advanced in this regard. For example, we do not have the principle of proportionality and necessity in restricting rights and freedoms. There are many shortcomings in wordings and limitations that are contrary to international law. The passed Constitutional Commission seems to have completed the preparation of amendments to this section. Obviously, these changes require public discussion, since the final version of these changes has not been published.”

The expert also assured that the wording of the social and economic human rights in the modern version of the Constitution of Ukraine is actually declarative.

“The Ukrainian Constitution of the Soviet-style as a whole has many impracticable declarations, but this also applies to the first section. It is also important to reform the human rights protection system, for example by establishing thematic ombudsmen. In many countries, there are ombudsmen for the protection of personal data and information, protection against discrimination, children’s rights, etc.”

Maryna Bahrova, a member of the board of the international union Institute of National Policy, in turn, is convinced that the main requirement for the initiators of the changes is to prevent the deterioration of the rights of Ukrainians.

“In other words, the volume of human and civil rights and freedoms ordered in the Constitution of Ukraine cannot be reduced under any circumstances. This is the legal position of the Constitutional Court and the ECHR, and various international institutions.”

Oleksii Buriachenko, a political expert and the chairman of the board of the Regional Expert-Legal Association of Influence, explained that a number of articles from the section mentioned by Stefanchuk, are either not implemented at all, or only partially.

“The example of the inability of the state to ensure the obligations enshrined in the Constitution of Ukraine to its citizens that is the most resonant and “fresh” in memory is the absolutely ineffective state policy aimed at providing social guarantees for internally displaced persons (IDPs) from the territory of separate districts of Donetsk and Luhansk oblasts and the annexed Crimea, not to mention the low level of pension and social security of disabled and elderly people.”

So, is there a need for more global changes?

According to Dmytro Sinchenko, certain provisions should be radically revised indeed. First of all, according to the expert, it is necessary to abandon socialism in the law, to provide for equality of rights and obligations, but to remove the free things, for example, free medicine.

“This will allow us to complete medical and other reforms, radically reduce the functions of the state, thereby reducing the cost of its maintenance, significantly reducing the number of officials, and also significantly reducing taxes, which will automatically raise the income of each citizen and reduce prices for everything.

Secondly, I would make the system of governance of our state more effective, in particular – I would make the President the head of the executive branch – the government. Paradoxically, the President, who is considered responsible for everything in the country and the head of the executive power, in fact, does not have such powers. The President who heads the government is the elimination of dualism of power and duplication of functions.

Third, I would change the electoral qualification. Today, citizens of Ukraine who have reached the age of 18 have the right to vote in elections. The upper boundary of the electoral qualification does not exist. In my deep conviction, this approach is not relevant for our country and hinders its development.”

Oleksii Buriachenko stresses the need to review and update the law to modern socio-economic realities.

“In many ways, the current Constitution is purely declarative in nature without relevant thematic references or sanctions explanations. As a result, we have, in many ways, a declarative Constitution, which sometimes is not correlated with the laws and regulations.”

Also, the political expert notes that the libertarianism declared by Stefanchuk as the ideological basis of the Servant of the People in many respects does not correspond to the provisions of the current Constitution.

“Left-wing or center-left views in the interpretation of politicians of that time spoke about the socially-oriented state with appropriate guarantees of state support, both for the vulnerable segments of the population (pensions, subsidies), and the provision of a wide range of free social benefits for ALL, from kindergarten to health care, from free housing to higher education and as a result – decent employment.

Libertarianism, as one of the branches of liberal ideology, speaks about minimizing the functions of the state, reducing the state apparatus and maximizing the deregulation of the economy with the introduction of instruments of its self-regulation. Such a model can be effective and give the country a significant economic impetus for development, but only if several basic conditions are met: the stability of the basic state institutions, including the judicial branch, the absence of corruption in public authorities and local self-government, economic competition + effective antimonopoly policy.

Stefanchuk spoke about political changes of the current Constitution specifically for the change of an economic course in the state. After all, failure to comply with the above principles automatically entails an economic imbalance in the country due to the increase in the shadow sector of the economy and the inability of the state to be responsible for its socio-economic obligations to citizens enshrined in the Constitution of Ukraine.”

How should the amendments be adopted and what is the role of the Constitutional Commission?

Dmytro Sinchenko is convinced that the only legal mechanism for amending the Constitution is the one prescribed in the law. The expert calls any other way the usurpation of power.

“As of today, there is no other legal mechanism for amendments to the Constitution, in addition, which is spelled out in the current Constitution. Therefore, any attempt to circumvent this mechanism should be perceived only as usurpation of power. If you go the legal way, as practice shows, it is always limited to political statements and ends with nothing. It was so in cases of both Yushchenko, Kuchma, and others.”

Andrii Martynov stresses the need for consultation on the changes with the Venice Commission.

“Ukraine, as a member of the Council of Europe, should consult with the Venice Commission on amendments to certain sections of the Constitution, or the Constitution as a whole. And such changes do not add to Ukraine’s image of a stable rule-of-law state, where the rule of law dominates, and not political expediency.”

Maryna Bahrova assures that any changes to the basic law of the country should be brought to the level of broad public discussion, among the scientific legal community, political forces and citizens in general.

“At the same time, no political force has the right to independently, in isolation from other political forces and a wide range of public, make changes to the fundamental foundations of the Constitution, using its political advantage. All Ukrainian society and all its best representatives have the right to make decisions on human and citizen’s rights only after a broad public discussion.”

Oleksii Buriachenko believes that first of all, the initiative to restore the Constitutional Commission and adopt the law “On referendum” should be reviewed, as they “work” in conjunction.

“These initiatives are absolutely interrelated because the Constitutional Commission is a consultative body under the President of Ukraine and the main purpose of its creation “is the development of agreed proposals for amendments to the Constitution of Ukraine”.

Does Ukraine need a law “On referendum”? 100% yes, because the referendum is one of the forms of expression of will and an effective tool of “direct democracy”, as, by the way, repeatedly stressed by representatives of Ze team. And, yes, the instruments of direct democracy, such as the referendum, absolutely “lie” within the concept of libertarianism, offered by Mr. Stefanchuk.

But everyone needs to understand the “reverse side of the medal”, if you often use the tools of “direct democracy” over time, the model of “representative democracy” will become ineffective, and this already has certain risks of rapprochement with the institution of “relative anarchy” and a critical distance from the institution of “socially-oriented state” enshrined in the current Constitution of Ukraine.”

The Constitutional Commission, according to the expert, can perform several functions at once: from the creation of a universal dialogue platform and the subject of receiving international grant aid to the instrument of lobbying the implementation of the desired changes.

“It is very convenient, also from the perspective of political responsibility, to announce certain changes in the Constitution from such a multisubject high institute as a Constitutional Commission. Also, it should be noted that it is the Constitutional Commission that can submit draft amendments to the Constitution to the European Commission “Democracy through Law” (Venice Commission) for obtaining an appropriate expert opinion.

Therefore, considering the above-mentioned facts, it can be stated that the activities of the Constitutional Commission, as a special subsidiary (advisory) body under the President of Ukraine, is aimed at legitimizing the initiatives of the President of Ukraine to make the desired changes to the Constitution of Ukraine”.

By Dmytro Zhuravel

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