The Saga of the Constitution

As the birthplace of the Ukrainian Constitution, in what conditions it took? A year ago, we talked to participants of the constitutional process, they tried to look behind the scenes. Today, this text is as relevant and interesting

The events of 1996 laid the Foundation for the political life of Ukraine, which boils in the walls of the district government with varying degrees of intensity now.

The events that occurred around the adoption of the Constitution, filled with myths, innuendo and hearsay, though, as it turned out, on the one hand, it was much more prosaic than it seems, and on the other hand, is much more difficult.

The history of the adoption of the Constitution does not need to start from 27 of June, when began the long session of the Ukrainian Parliament, but much earlier. The Constitution of Ukraine was before the Soviet, altered, suspended, added articles, but she was. However, the new country needed a “new passport” as it is often called the main document and its authors. It stumbled on personal conflicts and deadlocks in 1993, but with the election in 1994, resumed with new intensity. A new Constitution was necessary to the new President, Leonid Kuchma. On the one hand the need was clear and the powers of all branches of government, and on the other, and accusations that sound to this day, was the desire the concentration of power.

Stimulation in the presidential election: the constitutional Treaty

Between the Verkhovna Rada and President June 8, 1995, was signed the so-called constitutional agreement — a document consisting of 61 articles that regulate the interaction of branches of power in Ukraine, and most importantly, was obliged to adopt a new Constitution in a period not later than one year from the date of its signing. The document is contradictory, ambiguous, and even, in the eyes of some participants of those events is illegal.

Alexander Moroz, the head of the Verkhovna Rada, remembers that the administration of the President the adoption of this document was an opportunity to strengthen his powers, and his motivation is “to work and to adopt a Constitution within a year”.

It argued that insisting on the signing of this agreement, Kuchma “has stimulated a” people’s deputies to do more constructive work, and the novel Immortal assesses this move as “tactical”. On the other hand, the Constitution of the Soviet, which lived in Ukraine, no one was suspended, which made a “legal mess” in the legislative field for the whole year.

Spurred by the existing agreement and the Administration, a Constitutional Commission, consisting of scientists and experts, with a new force began to create a “Foundation” and in November 1995 the first results were submitted for review to MPs. Each faction of the Parliament, and there were 10 more political forces and a whole bunch of independent MPs, began to interpret and modify, overwrite, and append the completed document. Separate left, separate right, the centrists themselves, it is clear that in this way no Constitution until the end of June 1996, to take failed. Also the Constitutional Commission made changes to the text as proposed to the deputies, but not yet presented to the Parliament officially.

The Commission was headed by two people — Leonid Kuchma and Oleksandr Moroz. Then between them and any kind of confrontation, and former speaker does not hide it. “Or a democracy, or a dictatorship” — succinctly describes his position frost. In the presidential draft of the Constitution he saw a threat to democracy.

Other participants in the process, the deputies, then see the current situation in the political arena in a different light. Confrontation, they called and ideological leftists wanted to “cut the cord” with the Soviet past, and corporate — to defend their own authority and a piece of the power. And all this could not affect the writing of the Constitution: present ultimatums and tough conditions, but the work went on, and by mid-April, the Constitutional Commission has officially presented to the MPs the draft of the Basic law.

Which saw Ukraine in the Commission? With a bicameral Parliament and a strong presidential vertical, and autonomy of the Crimea, after the episode of 1994, is highly reduced, and instead of the Constitution of the ARC has gotten tired. What happened then? The idea of a bicameral Parliament in the Verkhovna Rada supported as much as 72 deputies, have been abandoned. Someone explains that the MPs cherish their chairs, others that new elections and the transition to the new system would weaken the country. Presidential vertical weakened to keep “balances”, and the Charter of the Crimea were replaced by the Constitution for the votes of the Communists for national symbols: the yellow-blue flag, the anthem to the music of Verbitsky and coat of arms in the form of a Trident.

At your own risk: How to rewrite the draft Constitution

The text of the Constitution, scientists presented the MPs officially on April 17, but 13 days before that, April 4, Saturday on the third floor of the right wing of the Parliament building gathered more than two dozen people.

Vadim Getman, Alexander Yemets, Viktor Musiyaka, Michael Sirota Valentine Dorozhkina, Ihor Yukhnovsky, Roman Bezsmertny, Victor Omelich, Ivan Zayats, Victor Brit, Valentin Chebotaryov Serhiy Sobolev, Oleksandr Lavrynovych, Sergey Kirichenko

“They gathered on Saturday, nobody believed that these people would come and they came. And this is what strength, but maybe a shortage,” — recalls the day Immortal. It was not the Communists, the largest faction, they were interested in leaving the Constitution of 1978, it suited them. Brit, which represented the socialists, returned to work in a group in may, so that the socialist party was also not represented during the work on the Constitution.

They worked at their own risk, on a voluntary basis, not knowing what will happen next, whether, together, to overcome the resistance of the left and accept the Constitution that will satisfy everyone.

The Communists, the largest faction, not just put “sand in the wheels”, and tearing the first reading, and taking the principled position that the establishment of a working group need proportional basis, that is, instead of the formula at least 2 people from the faction demanded the whole 6 seats.

Not less important was the public aspect pressure greatly launched a campaign, which can be called “a pleasure not able to.” Deputies do not believe — in fact all the countries of the former Soviet Union has already adopted a new Constitution, but Ukraine still could not “give birth” and it was. Work began, meetings, preparation, approval, then to the court and agreeing to make those or other articles.

“The process of negotiating the text of the Constitution was simple and at the same time democratic. Each parliamentary group had one vote. Chairman of the meeting announced the next article of the draft Constitutional Commission, which after extensive discussions, was put on a roll-call vote. If at least one representative of the group or faction does not approve the article, it was believed that the consensus it not reached, and it was postponed a second round of discussion. Only when there is complete agreement between groups or factions moved on to the next article” — describes what is happening Vadim Getman in his book “How the Constitution was being adopted?”.

Participants of the events recall that from time to time almost fought, so strong was the tension. Each understood the responsibility and necessity, but, on the other hand, and the level of legal and legal thought of the deputies then calls the questions. Next to the academics and scientists working former teachers, the practical experience are not enough, and some of the language puzzling — but all arranged.

“Now you laugh, but the topic is what to call the committees or commissions? Local self-governance in Kyiv and Sevastopol — it will be there or not? Sometimes there words are totally incomprehensible, you don’t know how to interpret them, they demanded further serious treatment. For example, things connected with the role and function of committees of the Verkhovna Rada”, — looks back Immortal.

He cites as examples two articles in the powers of Parliament — “only law shall govern” and “to the authority of Parliament belong.” “These two things indicate the level of legal culture at the time. What do you mean “by the authority of Parliament” and that may not by law be regulated in the country?” — deepens Immortal in legal niceties. But really, in the Constitution there is wording that contradict themselves and common sense, but the document is a compromise.

Former MP Ivan Zayets says that the important role writing played Volodymyr Butkevych, he checked the texts in the legal field, and part is appended on the fly. For example, the oath of the Deputy was not in the Commission’s draft, and it was finished Ivan Zayets. Or the part about Crimea. She recalls the Immortal, no one wanted to take, I had to write myself. It is based on broad powers under the Charter, and then agreed to the Constitution. Attorney-General was not to be, to lead the Prosecutor’s office could the Minister of justice, but then there was the section on the Prosecutor’s office and position.

The work was carried out seven days a week, even at the household level. Remember, it was difficult, sometimes starving, because during night vigils in Kiev, and then to eat it anywhere. Slept over each other for days and read dozens of documents, including examples of foreign constitutions — pressed for time.

In this way the deputies worked until may 1, when I first come to a meeting of Oleksandr Moroz. By the time of the meeting with the representatives of the President have become regular, and the Commission has developed a more or less coherent document. Getman says that frost came to the Commission with the may day demonstration, talked with the deputies, and then they suddenly invited for a festive table, covered in one of the rooms of the third floor. The next day, joined by the representatives of the socialists.

Official status: the Communists + Democrats =?

Already 5 may the Commission received the official status of the six Communists who desired to start all over again, article by article. And that meant months of work goes down the drain.

And, remember, the year was due to expire on 8 June. The first reading by the time either has passed, or not, the readings disagree, because the part of participants in the events view of the Constitution of 17th of April is called the first reading, although frost said that then did not put the draft to a vote. The other part considers the first reading meeting June 4, which tried to disrupt the Communists and the socialists, without registration. The impression remains that while not all participants in the process have been probed and in the procedural details and what is happening.

Despite the attempts of the left several times to sabotage the work of Parliament, the trade-offs by major object was achieved, and for the meeting of June 27, deputies went with the accepted 37 articles, and cold by the time he was sure — the Parliament adopts the Constitution, although no one knew how, but already knew about — how.

The sharp corners remain those that excite the Ukraine and now the status of Crimea, the state language, national symbols, questions of ownership.

Long day and a long night of trading

For the meeting of June 27 deputies came with a wary mood, and even oppressed. But the fact that on June 26, the day before, the conciliation, the panel met with representatives of the presidential Administration, where they gave an ultimatum — note 12 mandatory presidential points.

And even earlier, the 25th, in the presidential Administration have been prepared and signed a decree on holding a referendum on the adoption of the Constitution. Arbitrary decision Kuchma was carried out on a referendum the Constitution of the Commission without regard to the amendments of the MPs. At the same time, the idea of a referendum supported the nationalists in the Parliament.

Moroz recalls how he learned about the referendum and were outraged, because by that time a number of articles of the new Constitution was adopted and remained a “last fling”!

And against the background of the signed order 12. The participants of this meeting already can’t remember what specifically related to these points, but it was about the distribution of power, especially in the field.

The immortal says that after the meeting heard the phrase about accounting for example, eight of the twelve or four. But the agreement has not been reached.

And here is the morning of June 27,… the essential surveys as remained, and remained, but the sword of Damocles over these already listed and ready to fall on the neck of deputies.

Before the plenary meeting in the office of Frost has passed meeting with representatives of factions, unity and there was not: some members suggested to reach out to the departed in the “deafening silence” of the Administration, and others said “tired already”. Frost suggested a “knight’s move” — to open the meeting, establish working group to define several ideological opponents, and then problem questions to take a “package”. Meanwhile, they will determine the vote for those articles of the Constitution that do not cause conflicts. The meeting will last until the entire document will not be accepted, without a break.

So, check-in, offers support, working groups and went… and was late for registration, for example, Vyacheslav Chornovil nearly lost your chance to vote for the Constitution — he was late for registration. Did not come to the meeting and members-Ministers — according to the rules, the Ministers kept the mandate was only Deputy Prime Minister in the Constitution, Alexander Emets and Minister of justice Serhiy Holovaty.

Group on the language issue led by Ivan Popescu, the Autonomous Republic of team leader was Yevhen Marchuk, state symbols took on Vladimir Butkevich, but the property is one of the most sensitive issues of the “left” side of the hall — led by Alexander Moroz.

The members of these groups either have forgotten, or decided to repress memories phrases about “heated debate and compromise,” but who and what lost and what found arguments — the question is still open.

As we know from the future, the pre-dawn debate in the hall, all issues tied with each other and vote at the same time, ensuring the adoption of one enactment and the other.

There is a myth about “closed” the doors to the courtroom, from which no one can leave. It was so, and it’s doors were locked conditionally. First, the head of the working group Mikhail Orphan itemized constantly reported at the podium. But all the arguments to remember, he could not physically, and therefore was summoned to the aid of their colleagues. As the article mixed up, ready to defend his part of the work had to be always, but because for a long time to leave the room in any way was not possible. But it was “conscious” members. It was not very conscious…

Frost remembers that the deputies began to disperse to two o’clock in the morning — tired and already exhausted. Then, to help the speaker came the rules, because the meeting still has not been closed. Frost declared a break for 10 minutes and the entire Parliament has announced that the next matter to a vote will put the deprivation of mandates of all deputies who do not participate in the session — then, according to the regulations, such a move was possible.

A miracle happened, and the deputies came into the room with the excuses, the vote continued.

Shot and a bottle of champagne around midnight on June 28, the 50th anniversary was celebrated Victor Musiyaka, birthday was and Oleksandr Lavrynovych. They congratulated us and wished us as soon as possible to adopt the Constitution.

Getman recalls that at about half past two in the office of Frost gathered again the heads of the factions together with the Deputy speaker Oleksandr Tkachenko. And then, Tkachenko asked how will celebrate the adoption of the Constitution. At this point participants realized that everything will work out. Agreed to take all before 6am.

How much is consumed gallons of coffee — no one knows. But the dawn is near… And the work isn’t over.

One of the first problematic issues voted on the question of the state language — at half past eight. Article 10 was adopted in the form in which exists today with a single state Ukrainian language.

The next issue became Crimea and state symbols. These articles approached one o’clock, the President of the group, Yevhen Marchuk — a flame and a few times, and after much persuasion process went on.

Argued since the change rate flag, and is according to the calculations of MPs would be worth suffering from hyperinflation economy about $ 100 million, and ending with the fact that all over the world Ukraine is known with its characters, and what is there beyond the borders of our country about what happened in our history for 350 years, don’t know, and that it is foolish to look — I now have a flag in front of embassies and the international community to accustom to the new, and dozens of reasons why you need to vote in favour.

The hour and fifteen minutes, the deputies discussed the matter of symbolism, 1:55 “for” gaining only 291 voice, and frost invited the working group to “work more”.

Half an hour lasted until about 06:30 when he came to the podium Yevhen Marchuk with the package. One vote Crimea received the status of an Autonomous Republic, and Ukraine national anthem, flag and emblem, this emblem was established by a separate law, which still had, and now still have to take. “What more do you want?” asked Marchuk from the podium. And here’s the scoreboard 299 votes, lacking only one, single vote.

In the hall once again into chaos with walking to the podium in groups, shouting and misunderstanding, why even such major concessions are unable to overcome the resistance. We must not forget that by the time the deputies were almost a day — and hungry and sleepy people, working for almost 24 hours — it is terrible people on the overwrought nerves.

Another half hour of discussion and comments and the scoreboard lit up cherished 302 votes, the parliamentarians came out of a steep dive and there was a glimmer of light the end of this Great day of trading and compromise.

By the time it became clear that the Constitution will take. Frost remembers that said Tkachenko, you need to call the Administration to the time of adoption came Kuchma. Tkachenko phoned, argued that the adoption of the Constitution without the President it would be a shame, and Kuchma arrived.

Voting for the last article had passed at 9:20 thunderous applause, in the presence of the President, the tired head of an ad hoc conciliation Commission Michael Sirota, almost a day standing at the podium went into the hall, his eyes were full of tears — ended with a tremendous work and now in Ukraine was the Constitution.

After the vote, Kuchma appealed to the deputies and one of the most mysterious of his phrases was: “Sorry for you “stimulated”. They became a fertile ground for myths that people’s deputies to adopt the Constitution hardly at the behest of the President. As you can see — it was a little different, and now Immortal remembers that back then, 20 years ago, but it seemed that there was a confrontation between the Parliament and the President, between the Board and the administration, and now, 20 years later, it is clear that there is no ideological confrontation, in fact, was not.

After the vote

After voting the deputies, after drinking a little for the birthday of colleagues and of the Constitution, went to bed. Late frost, which Kuchma has called for a ceremony of awarding diplomas to graduates of the Military Academy. In between there occurred the conversation, which they later never came back. Kuchma asked Frost how he did it. “Let us then will tell you,” replied frost.

Participants of the events recall that the tension was so strong, and the work exhausting that by the time the adoption had no strength to rejoice. Fatigue party turned into a week-day, which wanted only to sleep.

What was born 28 June?

The Constitution was an example of compromise between the different layers of the Ukrainian society in 1996 between post-Soviet and Ukrainian. It was a good Constitution, and is — has not yet exhausted its full potential. This last of the post-Soviet constitutions resembles the Basic law of France, it is considered one of the best Constitutions of the countries of the former Soviet bloc, and in terms of human rights and is one of the models in the world.

She required further work and considerable, but gave a clear understanding that Ukraine now has all the attributes of statehood and open all the way for further construction of the country.

Looking back, the Immortal felt the need to leave the option that proposed the Commission of scholars and experts, it was fairly balanced. “I have now and then been a supporter of the fact that science is the pinnacle. And when they (the scientists-lawyers — approx. ed.) say something, and then it is necessary to do so, it is necessary to do so and not to invent the wheel. In fact, everything that happened then — it was the battle with perfection. That’s the only way I perceive,” he shares his findings.

But it happened, how it happened, and the Constitution should be seen as a social cut of the 1996 agreement of the elites, representing different regions and different views of regions of the country, which 20 years later is torn between the past and the future.

A Bad Constitution

A few years later came the trend to argue that the Constitution supposedly bad. Why bad? Because it is not working. And then the question arises — why isn’t it working.

One of the reasons is the fact that the Constitution required the adoption of a huge number pokestation acts, laws regulating in detail some articles. And some of these laws are not adopted so far. The first “legitimate” government was the first government of Yulia Tymoshenko simply because in Ukraine there was adopted the law on the Cabinet of Ministers. The law, which establishes a Large coat of arms has not been adopted so far. And so even dozens of laws.

For example in the Constitution of the 2004 version was written in the “imperative mandate” and the law that allows you to apply it, take in 2015, after 11 years.

The answer to why the laws were not accepted, is in the plane of the Verkhovna Rada and the President, for their cooperation. So, after the adoption of the Basic law, during Kuchma’s part of the laws veeravalli, and another part were “lost” in the corridors of the Administration, not receiving the signature of the President.

Still, there is not even a blueprint to making the entire list of laws which the Constitution requires, and whether it will exist at all — is unknown.

There are a number of points which were laid as the consensus between the administration and the Parliament, but no President is in no hurry to change them. For example, the norm of impeachment. Even our favorite trendsetters, the Venice Commission strongly recommended to reduce the number of votes required for impeachment, but it’s so convenient when you can set aside only three-quarters of the votes that are never going to.

20 years later the authors of the Constitution are inclined to believe that the necessary targeted changes rather than completely rewrite the document. Another thing is that the “swaying” back and forth, the Constitution is discredited and perhaps a new need just in order to say: “We begin again”.

Constitution day — a holiday that is celebrated not all

“How do you celebrate Constitution Day?” — we asked Alexander Moroz. “Silence” — he admitted.

The authors say that Constitution Day is an occasion to call an old party members, to remember those days of toil and think about what 20 years of “tinkering” the Constitution has not led to anything good.

What is the day of the Constitution for ordinary citizens? The additional output or to remember their civil rights?

The value of the Main document is undervalued. The Constitution is not the Foundation, it is a plan whereby the state should build, building one floor after another. Underestimate her because “construction” was delayed for 20 years, twice “reconstructed” items relevant to the distribution of power at the top, and the only change that may affect the citizen, were introduced recently, limiting the right to representation in the courts only by lawyers.

On the other hand in Ukraine, the Constitution provides citizens with quite extensive rights, analyzing the document, you can see that the citizen was placed in the center of the state. But again and again we must ask the question — where are those laws that can provide everyone of us to realize such carefully prescribed rights and social mobility? Why is their acceptance of the current political Beau Monde is busy “chicanery” and “inventing a Bicycle”?

But in some countries, and the Queen’s birthday is a national holiday and a day off from all their traditions. “Then it was a great day, holiday, holiday,” — says the Immortals.

What has changed in 21 years

“Everything revolved around one thing — who is responsible for the mess?” — about as briefly and succinctly described the changes to the Constitution in 2004 and 2010, Viktor Shishkin.

Some of them were essentially correct, but completely the wrong shape — the Parliament was through infringement procedures, contracts and closing eyes to the violation of the rules. So it happened with the constitutional Treaty, so it is now — remember only operational release of “Voice of Ukraine” not so long ago.

There are a few points why to begin to change the Constitution was not worth it. First, it opened “Pandora’s box”, starting with the President, Viktor Yushchenko, is the third head of state was adopted to rewrite the Constitution instead, to bring the legislation to the kind in which the Constitution can work. Second, the change of the principles of distribution of power led to a complete mess. The President is elected to run some power, and gets quite different, as happened with Yushchenko and Yanukovych. The third point, amendments to the Constitution of 2004 to create two “centers of gravity” and identify “responsible for the mess” becomes a problem. If the distribution of power in the Constitution of 1996 establishes the head of the Executive power of the President and his position determines the future course, the edits 2004 transferred responsibility to the Parliament — that is, collective irresponsible, which also depends on the position of the Prime Minister. This was the reason for the parliamentary crisis in 2008, and recently, in 2015-2016.

Now came to change in terms of justice, but the adopted amendments to the Constitution are worth nothing without the adopted pokestation laws. The same applies to the government, but some of the articles in this part, which shall be governed by the respective laws were not used, because the deputies of the seven convocations did not come to this hand, and if they came, they just got lost in anticipation of the signature of the head of state.

The Constitution was written, but the work is not over, for this to work, you need dozens of laws, and writing them almost nobody. Sit in the Parliament are already the children of those who gave Ukraine the Basic law, many of the “fathers of the Constitution” passed away, and their names erased and will remain on the pages of the archives of the attics and on the pages of history books.

And 21-year anniversary of the Constitution we wish her to fully begin to work for 25 years, and let this all have enough strength and wisdom.