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Constitution Day – (and domestic politicking about a new Constitution)

June 28, 2018

Just over a week ago an entry appeared regarding Ms Tymoshenko’s entirely unsurprising announcement of a presidential bid.

Within that entry mention was made of Ms Tymoshenko’s plan to give Ukraine a new Constitution in its entirety.  An accomplishment that would have to come to fruition under the parameters set by current Constitution as outlined in the above linked entry – lest it be unconstitutional.

Ne’er the less Ms Tymoshenko stated that she had a team on international experts and jurists already hard at work writing a new Constitution (whom she clearly believes will provide a better Constitution than the team of international experts and jurists that wrote the current Constitution).

Now to be fair the current Constitution is not perfect.  It is very broad in some areas, and far too detailed in others where simple statute would be better employed.

But it is not bad.  It’s content is not where the Constitution necessarily fails – even if there are places where it could be improved or updated.

The lines of power and their parameters to follow.

The problems have come about by through successive presidents continually treading heavily upon the Constitutional lawns of parliament.  Both successive presidents and parliaments have also stomped heavily all over the Constitutional lawns of the judiciary.  The citizen has struggled to enforce their constitutional rights etc.

In short, historically the constitution has been generally ignored, in particular by the political class – and that has been accepted by a politically led and subservient judiciary.  A distance between Constitutional prose and daily reality has been felt by the constituency.

Thus a new Constitution, no differently from the current Constitution, will only have any significance if it is scrupulously followed and all relevant parties do not trespass upon the manicured constitutional lawns identified for others.  What use is any Constitutional Right to any citizen of Ukraine if it cannot be, or is not enforced?  If fundamental law is not sacrosanct, then what of other laws?  Rule of law – or rule by law?

The current (and any future) Constitution already rightly notes the natural tensions between the executive, legislature, judiciary and citizen (plus any devolution of power where ever it may land institutionally/local governance-wise) and offers a system of remedy.  There is little indication that the current elites would pay any more attention to the “Keep Off The Grass” signs of a new “Tymoshenko Constitution” than they do now – even if the current executive and legislative powers are changed.

If the President became a symbol/figurehead with very little or no power, and the legislative lawn increased dramatically in size in assuming current presidential powers, the legislature (and the powers behind this current era of Ukrainian politician) shows very little willingness to stay off the Constitutional judicial grass, and a judiciary used to being politically subordinate shows very little appetite in having the grounds staff enforcing the “Keep Off The Grass” signage – whether the judicial grass be constitutional or statutory in nature.

Thus, though a reader will rightly cheer if and when a senior corrupt head or two eventually find their way upon a judicial spike (and jail), it is systemic change that will ultimately have the greatest impact if Ukraine is to change at its core.  That is not to excuse or diminish the requirement to see senior heads upon the judicial spike (justice must be seen to be done), but it is to put realistic expectations upon what it will actually achieve (beyond justice being seen to be done as far as individual cases are concerned).

There is a clear societal problem with identifying The State as distinctly separate from those temporarily in authority due to a short term democratic mandate, and vice versa.

Care is therefore required in identifying symptom and cause – and to be blunt the cause is systemic and will therefore take a generation (and the death of a political/oligarch generation) to see any irreversible improvements in Ukraine – if they are to come – for the system will now only change slowly.  The 2014 window for radical systemic change has long since closed.

Further, despite the progress that has undeniably occurred in recent years, it remains far from consolidated.  Energy is still therefore spent defending the gains made.

Nevertheless, on Constitution Day it is natural that the Ukrainian political class talk about the Constitution, its strengths and weaknesses, and the perceived need to amend it piecemeal or replace it entirely.  For example, the views of President Poroshenko, one of his opposing candidates Yulia Tymoshenko, and Oksana Syroid Deputy Speaker of the Verkhovna Rada all (unsurprisingly) differ.  In such an environment it is doubtful that much improvement upon the current Constitution can take place other than in piecemeal form.

Looking to the future and immediately after the October 2019 Verkhovna Rada elections, it looks increasingly difficult to see an easy coalition of 226 votes being forged, let alone a Constitution changing 300 required votes, as no party seems likely to garner more than 20% of the national vote and thus a simple majority coalition will require 3 parties – or two parties and almost every independent MP just to pass basic statute.

(2020 – 2024 will be no easy time for president, parliament, nor the citizenry of Ukraine if consistent and linear progress is the expectation of any reader – for that seems very unlikely.  What is required is the continual process of reducing the political, business and administrative space in which corruption can occur.  A long process measured in decades.  A difficult task when envisioning the legislative and disagreeable montage of 2020.)

This brings about the issue of how difficult or easy should it be to accomplish constitutional changes?

Is it to be a fundamental law that proves so difficult to change that it ossifies and becomes more hindrance than help as time passes, or a living breathing document that keeps pace with society and is therefore subject to change without too great an obstacle?  That therefore raises questions over what should be included (and in how much detail) and is perhaps a fundamental law rightly somewhat difficult to change, and what should be excluded and codified in normal statute with far lower barriers to amendment.

Without doubt this will become a public conversation between presidential candidates, for Ms Tymoshenko has been first from the blocks and framed constitutional change as a major electoral platform.  Whether any coherent conversation will be had is quite a different matter.  Even if there is a coherent conversation, will the Keep Off The Grass signs be respected in the immediate future?  Probably not.

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