Paradox of the Constitution: why authorities praise it and ignore it at the same time

By Oleh Savychuk, analyst of the Centre of United Actions

Twenty-five years ago on the night of June 27, 1996, Ukraine got its first Constitution in modern history. After 24 hours of continuous work, MPs of the second convocation adopted the document that Ukrainians live by for 25 years now.

It is not a coincidence that the issue of the Constitution was then at the center of attention. MPs’ selfless work and President’s iron hand (and threats) then defined the rules by which Ukraine lives henceforth: which rights are granted to citizens, who rules the state, how the government is appointed and dismissed, when it is possible to disperse the Parliament or impeach the President.

The Constitution is the foundation of the state, the balance of power, and the protection of human rights. Strict adherence to it is an indispensable prerequisite for the proper work of government bodies and, thus, the prosperity of citizens.

In Ukraine, unfortunately, the government does not work as intended. We are used to systematic violations of the Constitution by authorities — unconstitutional presidential decrees, laws by the Verkhovna Rada, and Cabinet resolutions Cabinet are a routine part of daily news. It is easy to see all this as a sign that politicians in power are trying to usurp this power. So how did the core document for any democracy has turned into a mere formality in Ukraine?

1. Officials often ignore the Constitution, and there are several reasons for this.

Firstly, newly-elected officials always try to expand their powers and do so in an unconstitutional manner.

This was true about Petro Poroshenko when MPs allowed him to appoint the directors of the National Anti-Corruption Bureau, State Bureau of Investigations, and members of state regulatory bodies, pick and delegate members to the Commission on Higher Civil Service Corps and the supervisory board of the Ukrainian Cultural Fund, etc.

This is also true about the Parliament of the eighth convocation. It “granted” itself the authority to appoint representatives to a variety of contest committees, in particular, to contest committees for the selection of the directors of the NABU, SBI, and the head of the Specialized Anti-Corruption Prosecutor’s Office, delegate representatives to several central executive bodies (for example, to the Commission on Higher Civil Service Corps), etc.

The current establishment carries the tradition on by preserving the influence of President Volodymyr Zelensky over the national authority for state regulation of energy and public utilities despite the Constitutional Court’s ruling that such influence is unconstitutional. Also, it allowed the President to delegate his representatives to the contest committee for the selection of the head of the Bureau of Economic Security. The same leverage over the newly-created body got the parliamentary monomajority.

According to the Constitution, neither the Parliament nor the President can have these powers.

Secondly, politicians in power prefer to keep at important positions only those officials who are loyal to them and dismiss others.

The pioneer on this thankless path was probably Viktor Yushchenko. Back in 2005, he dismissed Prosecutor General Sviatoslav Piskun via the unconstitutional procedure. After his decision was overruled by the court, he dismissed Piskun once more. Moreover, the third President of Ukraine tried to do the same to the judges of the Constitutional Court Susanna Stanik, Valerii Pshenychnyi, and Volodymyr Ivashchenko.

After the Revolution of Dignity and changes to the Constitution, the tradition of unconstitutional appointments was carried on by Petro Poroshenko. In violation of the Constitution, he continued to exercise the authority of his predecessor and used the power to appoint the members of state regulators (by law, this power belongs to the Cabinet). For example, regulators on public utilities, communication and digitalization.

The appointment of the former manager of Roshen company Dmytro Vovk as the head of the regulator of public utilities allowed the President to implement the notorious Rotterdam+ formula that significantly increased the electricity tariff rates for households.

The tradition of constitutionally doubtful dismissals and appointments has not faded away during the presidency of Volodymyr Zelensky. First, the National Agency on Preventing Corruption was unconstitutionally relaunched by dismissing its management via a special law. Later, the State Bureau of Investigation was relaunched in a similar fashion: the Parliament made it subordinate to the President, SBI Director Roman Truba was dismissed and a representative of the current establishment Iryna Venediktova was appointed in his stead.

Recently, President Volodymyr Zelensky made a “political and legal” decision: he dismissed judges of the Constitutional Court Oleksandr Tupytskyi and Oleksandr Kasminin and announced the competition for their “vacant” positions. While pretending to care about national security, he violated the Constitution. Such decisions are impossible to imagine in a country that respects the rule of law.

The appointment of the current Minister of Education and Science Serhii Shkarlet supposedly became possible only via ghost voting. For half a year now there is an open criminal case concerning this fact, but there is no news on progress in it. For some reason, the first deputy head of Parliament Ruslan Stefanchuk is now less eager to promote criminal punishment as a penalty for ghost voting.

Loyal and subordinated officials are the key to retaining power. They will not ask questions, check, or doubt the orders from above.

Thirdly, no one wants to be responsible for their actions even while concentrating more powers in their hands.

The most flagrant example of such behavior is the coronavirus lockdown imposed by the Cabinet on March 12, 2020. Although such restrictions on human rights can be introduced only via the emergency state declared by the President and approved by MPs, the establishment had no desire to make unpopular decisions. The whole burden of responsibility, both political (voters were unsatisfied with the restrictions) and legal (the Cabinet had no authority to impose the lockdown), will bear the Government.

For now, even the decisions by the Constitutional Court that ruled these lockdown restrictions unconstitutional had no bearing on the Prime Minister, the President, and the Parliament. Moreover, the President and his party will never be held responsible for their actions since it were the Prime Minister and ministers who exceeded their authority. So why make decisions that voters dislike? Unpopular decisions can be made by unpopular politicians.

2. The President cannot be the guarantor of the Constitution.

Volodymyr Zelensky is used to giving orders to the Cabinet to perform various tasks, although the Constitution does not grant the head of state such authority.

In November of 2019, the President issued a decree on emergency actions to implement reforms and boost state-building. The decree set almost 200 tasks for the Government and particular ministries concerning the economy, energy sector, regional development, urban development, digitalization, healthcare, education, science, etc.

Only within the last six months, the President gave orders to the Cabinet to address the issues of environmental protection, culture, higher and professional education, human rights protection, integration into the NATO, humanitarian policy, youth policy, language, land, migration, regional policy, doctors’ salaries, management of state property, municipal improvement, and inclusion. By doing so, he appropriates the authority of the Prime Minister.

The President also plays judge via the National Security and Defense Council by imposing sanctions against Ukrainian citizens. Without charge or trial, the President’s sword of justice was drawn upon Taras Kozak, Viktor Medvedchuk and his wife, 557 “thieves in law”, top smugglers (according to the NSDC), and others.

Instead of prosecuting criminals in accordance with the Constitution and democratic procedures — via open court trial — the President resorted to a procedure that is more “quick” and “effective”. The main advantage of this procedure, it looks like, is that it requires no evidence, eyewitness testimonies, or the possibility for “suspects” to defend themselves. Such methods, though, are not in line with the rule of law.

Similar practices were used also by Petro Poroshenko. In particular, he aimed at controlling the NABU, although the Constitution gave him no such power. His core argument was that corruption is a matter of national security and thus is within the authority of the head of state. The Constitutional Court, though, declared that the President’s position is weak and ruled such influence unconstitutional.

Also, Poroshenko wanted to retain the influence over “independent” state regulators that the Parliament had somehow “forgotten” to give back under the control of the Cabinet in 2014 and left within the presidential hierarchy.

Rule of law cannot be established by politicians that draw their powers from systematic violations of the Constitution. The President should not be able to condone his actions by the fact that he is the guarantor of the Constitution.

3. System of governance in Ukraine is unbalanced.

The government cannot be effective if the Cabinet is formed by both the Prime Minister and the President. Currently, part of the Government is appointed by the Parliament upon the submission from the Prime Minister, while two ministers — of foreign affairs and defense — are appointed by MPs upon the submission from the President. These two ministers will never be truly loyal to the Prime Minister and upon receiving orders from Bankova will sabotage the Cabinet’s work.

The same is true about regional offices of executive bodies. Powers of the Cabinet are de facto limited to Hrushevskyi street in Kyiv since it cannot appoint the heads of local state administrations — offices of executive bodies in oblasts and raions. They are appointed by the President upon the submission from the Government.

A prominent example of the ineffectiveness of this system gave the former head of Zakarpattia oblast state administration Hennadii Moskal. As he himself admits, he had not even tried to implement any reforms in his oblast since “they were from the devil”. The Cabinet had no leverage over him and the President just ignored the issue.

The problem of power imbalance became especially visible since President’s party got the majority in the Parliament. The current Coalition, instead of controlling the work of the Government and the President, just fakes its control functions and is fully dependent on its party leader.

The opposition, meanwhile, instead of pointing out obvious cases of power abuse, challenging unconstitutional decisions, and creating some real policy alternatives, continues to squabble over the crumbs of the electorate and support unconstitutional initiatives of the Coalition.

In the light of this, it is possible to explain the behavior of former Prime Minister Oleksii Honcharuk that otherwise would have seemed strange. When he lost the trust of the head of state, he first came an hour late to the Hour of Questions to the Government, delivered his speech, and, ignoring the questions from MPs, submitted his resignation not to the Parliament as he should have done according to the Constitution but to the President.

What is the solution?

Constant abuse and power imbalance resulted in a situation when no one is responsible for anything that happens in this country.

The President signs decrees on any issue he likes and sets tasks for the Cabinet. If these decrees remain just words on paper, the President is not guilty of anything. If the Government, however, does as ordered, the beneficiary of the results is the President.

The Government does not perform its primary function of developing and implementing state policies. Without presidential support, any decision by the Cabinet will be implemented only within the premises of the Government, but not in the regions.

With the monomajority in Parliament, the situation is even worse. The Prime Minister from a figure of power turns into the deputy of the President and performs as a lightning rod. That is why Oleksii Honcharuk before his dismissal praised Volodymyr Zelensky and not the monomajority. Current Prime Minister Denys Shmyhal claims that he is ready to resign the moment the President orders it.

Today, President de facto is the most influential politician in Ukraine and has all powers concentrated in his hands. Our situation is similar to the situation in neighboring countries to the east and north. To protect ourselves from an authoritarian future, we have to change something.

First, we have to make an insignificant step for a politician but a life-changing step for a country and its citizens — start adhering to the Constitution. It is not just a piece of paper, it is a founding document of the state. Failure to observe the Constitution presents no less danger than our eastern neighbor.

Democracies are different from autocracies by adhering not just to the letter but also to the spirit of the law. If we will proceed following the rule “it is allowed to break the law if necessary”, we will drown in the void of legal chaos.

Second, we need to change the current balance of power that more than once proved its ineffectiveness. We need to break the Cabinet free and remove the excessive influence of the President over the executive branch. To make it possible for the Government to make decisions without authorization from the Office of the President. To make government free from the opposition between “prime ministers” people and “president’s” people. To ensure that it is always clear who is responsible for the successes and failures of reforms.

If we manage to carry out these two tasks, there is still no guarantee that Ukraine will become a successful democracy. However, then we will have at least some chance to create the foundation that will prevent us from becoming the autocracy like our eastern neighbor.