Доповідь в.о. Голови Конституційного Суду України Сергія Головатого на Міжнародній конференції „Сталість як конституційна цінність: майбутні виклики“, м. Рига, 15-16.09.2022

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Preventing Threats to Democracy: Ukraine’s Twists and Turns

 

Paper for the Conference “Sustainability as a Constitutional Value: Future Challenges”

Riga, Latvia, 15–16 September 2022

by

Serhiy Holovaty,

Acting Chief Justice, Constitutional Court of Ukraine,

Member of the Venice Commission on behalf of Ukraine

 

This year, 2022, Latvia celebrates the Centennial of its Constitution as the Fundamental Law of the Independent Republic and Democratic State.  

My country, Ukraine, might could also have celebrated a similar centenary – of the Constitution of Ukraine People’s Republic adopted in April 1918 by the Ukrainian Central Rada, at that time acting as the Parliament of Ukraine. However, russian[1]*** bolshevik military aggression against Independent Ukraine drowned Ukrainian National Revolution of 1917-1921 and Ukraine in blood. As a result, after almost three centuries as a colony under russian tsarism, Ukraine was further colonized by russian communist totalitarianism.

After the fall of the russian empire, Ukrainians could not defend their statehood as they were not supported geopolitically. At the beginning of 1918, to defend itself from the bolsheviks, the Ukrainian movement entered an alliance with Germany. However, Germany lost the First World War and the Ukrainians found themselves in the camp of the defeated. In one sense, if the Germans had won in 1918, then the Ukrainian state may have stood, and we could now celebrate not its 30th  anniversary, but its Centennial[2].

Unique among European nations, Ukraine has a tradition of more than one thousand years of state-building. Yet it only became independent in 1991, finally shedding 350 years of colonial servitude. At that time, we assumed that it had become free forever…

It would appear almost unimaginable to think that the very existence of an independent, democratic, Western-oriented-values Ukraine would be completely unacceptable for the ruler of the Kremlin. In fact, it is regarded as fully incompatible with the aims and purposes of Moscow’s fascist-type empire.  

The Ukrainian nation has been fighting for its independence since February 2014 when Moscow invaded Crimea and part of the Donbas. Today, everyone in Ukraine lives under the permanent danger that a russian rocket or bomb can kill you at any moment and at any place. Everyone can see how the aggressor-state is destroying Ukrainian cities and villages day and night killing thousands of civilians, including children and elderly people. Today Moscow’s neobolsheviks practice the most disgusting practices of the Nazi and Communist totalitarian regimes, treating the Ukrainians desperately defending their freedom and their identity, as sub-humans.

Regarding Ukraine, it is more than evident that the strategy of the Muscovites remains the same as it was a century ago, at the time when the Constitution of Independent and Democratic Republic Latvia emerged: to destroy the Ukrainian State, to eradicate Ukrainians as an original ethnos, and to erase Ukraine from the map of the world.

Under these circumstances, the ideals of human rights, of the rule of law and of democracy are very far from the realities of life today in my country. Indeed, the question of the very existence of the Ukrainian people and Ukrainian statehood is at stake. The Muscovite strategy is about depriving Ukrainians of their right to life, to exist as a nation, and about killing Ukrainians just because they are Ukrainians. In short, we are witnessing a genocide against the Ukrainian nation.

Nevertheless, at the forum dedicated directly to two anniversaries of Latvian constitutionalism, definitely, we are going to deliberate about democracy, human rights and the rule of law.

Let me start with shedding a light on specific feature of the Ukrainian people, but about which there is little knowledge in other countries. Especially, since this characteristic differentiates my nation from our neighbor to the Northern East.

At the start of the 18th century, the previously free Cosaticam gentem (the Kozak (i.e., Ukrainian) people) organized into the Kozak republic, had lost its liberty and has been subjected to absoluto Moscovitico Imperio already for seven decades. We can find a unique document for our legal and political heritage dated as of 1710. Its short title in Latin is Pacta et Constitutiones legum libertatumque Exercitus Zaporoviensis (“Agreements and Resolutions on the Rights and Liberties of the Zaporozhian Host”). In the Ukrainian legal and political culture, the document is widely known as The Constitution of Pylyp Orlyk of 1710. This document predates both the American Declaration of Independence of 1776 and the Constitution of 1787, as well as the French Declaration of the Rights of Man and Citizen of 1789. However, the philosophy and political goals set out in the Ukrainian document has a close affinitive with them. Moreover, by its origin and nature, it is similar to Magna Carta 1215. The affinity or similarity of the Ukrainian Pacta et Constitutiones 1710 to the significant acts of political and legal developments in Medieval England and in the America and France of the Enlightenment allows us to treat the Ukrainian document as the national origins of Ukrainian constitutionalism.      

The preamble of the Ukrainian document clearly speaks about its twofold tasks and goals.

On the one hand, Pylyp Orlyk, the newly-elected Hetman (Leader) of the Zaporozhian Host took upon himself the duty to liberate gentem antiquamque Cosacicam (“ancient Kozak people”) from the external despotic power, e.g. iugo Moscorum (“the Muscovite yoke”). In this respect, the Ukrainian document is very close to the spirit and ideology of the American Declaration of Independence 1776.

On the other hand, another task of prime importance was to free the Kozak people as well from domestic tyranny insofar as in the past several Hetmans had been despotic rulers and usurped power acting under the principle: SIC VOLO, SIC IUBEO (“My wish is my command”). However, Pylyp Orlyk, while working on the document, noted that “the Kozak people were always speaking out against autocracy[3]. Since “the Rule of Man was not inherent in the Motherland and in the Zaporozhian Host[4] and the despotic way of ruling by some Hetmans in the past has led, in particular, “to violation of rights and liberties[5], the document was concluded to prevent abuse of power in the future. So, this, the second side of the document’s purpose - aiming to curb the unfettered power of one-man rule - makes the document similar not only to the French Declaration of the Rights of Man and Citizen, but to the Magna Carta as well.  

Another feature that makes the Ukrainian Pacta et Constitutiones 1710 similar to the English Magna Carta 1215 is it legal nature. Both documents are Charters concluded by the two parties when on one side was a despotic Ruler having unlimited powers and on the side were those who defended their liberties against despotism of the Ruler thereby rejecting the Rule of Man. In such a manner, our predecessors have opted for limited government. Moreover, such elementary characteristics of democracy as the free election of a Hetman, separation of powers between a quasi-parliament, a quasi-executive and judiciary are present in the document as well.

In general, the Ukrainian Pacta et Constitutiones 1710 contained in nascent form the conceptual elements of the three ideologies which prevailed in the course of the American and the French revolutions in the second half of the 18th century: 1) liberalism; 2) republicanism; 3) and Christianity.

Thus, this national legal document of 1710 is the conceptual origin of the Ukrainian constitutional tradition, being the forerunner of the acceptance several centuries later by our national culture of the Western values, namely democracy, human rights, and the Rule of Law.   

Unfortunately, this majestic memorial document of Ukrainian law dating back to the beginning of the XVIII century did not become a legally binding act. Nevertheless, it became a constitutional program for future generations and a magisterial act for all Ukrainian people directing them to achieve the main goal that has not changed since those times – “to liberate our Motherland from yoke of Muscovite slavery[6].

Only in 1991, was the goal achieved.

However, it would be a few years after independence was proclaimed that Ukraine would adopt a new democratic Constitution. The pro-communist (pro-Kremlin) majority in the Rada preferred to use the old socialist version dated as of 1978 and proclaiming “All the power – to the Soviets!” Therefore, in 1994, an acute political crisis erupted between President Leonid Kuchma and the Verkhovna Rada. It was of the same nature as the situation in 1993 in Moscow that resulted in firing on “the Red Duma” from tanks on president Yeltsin’s order. Under threat was not only just and emerging democracy in a post-authoritarian society, but the very existence of the independent Ukrainian state. Fortunately, Kyiv avoided the military resolution of the conflict between “the Red Rada” and the newly elected President, who favored market economy reforms. The solution was quite extraordinary. It was peaceful and done in democratic way: in June 1995, the conflicting parties reached a Constitutional Agreement. The Venice Commission called it “an unusual step”, regarding the document itself “as an interim Constitution”[7].

Thus, Ukrainian constitutionalism began to acquire its national identity through a civilized legal way of solving the crisis. Two fundamental characteristics mark this document:  first, the appearance of separation of powers as a principle of constitutional order; second, within the year a new Constitution of Ukraine had to be approved. And thanks to this national experience, Ukraine in the same year, 1995, even without the adoption of a new democratic constitution, obtained membership in the Council of Europe, which was an exception for this Organization. 

Luckily, the both parties to the political conflict adhered to the Constitutional Agreement, making it possible to adopt a new Constitution on June 28, 1996. Its adoption was accompanied by a bitter political confrontation between the Rada and the President in an attempt by each side to retain as much of their powers as possible - President Kuchma tried to get approval for his own “Russian-style” Constitution through a manipulative referendum in the same way as Lukashenko did in Belarus and Nazarbayev in Kazakhstan.  

Thus, Ukraine appeared to be the last among all the post-Soviet republics to adopt its new Fundamental Law. Other than the Baltic states, Ukraine was unique among post-Soviet countries in adopting a constitution under which the preponderance of constitutional authority did not rest with the President. The new Ukrainian Constitution was a display of a fundamental progressive step forward in the transition of Ukraine from totalitarianism to democracy and a state governed by the Rule of Law. The document not only manifested a major post-socialist constitutional change, but demonstrated post-colonial development as well.

The Kremlin evaluated the 1996 Ukrainian Constitution according to its traditional imperialistic view: Moscow was never ready to acknowledge Ukraine as a true state[8]. But since Ukraine still existed as an independent state, the Kremlin determined that the 1996 Constitution of Ukraine contains two defining elements that were contrary to Moscow’s strategic goals. One of them is a unitary form of territorial organization of Ukraine (Article 2). The second is the status of the Ukrainian language as the only state language (Article 10). Therefore, as long as the 1996 Constitution remained in force, the Kremlin made maximum efforts to achieve both the federalization of Ukraine and the Russian language becoming the second state language in Ukraine. The Kremlin was sure that if this was achieved, Ukraine as a state would collapse. That would be a way to turn Ukraine into a state along the model of Belarus.

All these Kremlin plans failed. Accordingly, we faced a result in the form of Russia’s military invasion of Ukraine beginning in February 2014 and continuing in February 2022. This demonstrates how, having undermined the international rules-based order, Moscow’s post-imperial nostalgia and identity poses a danger to global security.

Yet, the European view on the 1996 Constitution was a different angle. The Venice Commission had followed closely for several years the constitutional process in post-socialist Ukraine and helped to draft the new Constitution while assisting to enshrine in it the values and principles of a constitutional democracy. It looked at the adopted document with considerable optimism. The Commission recognized that “the adoption of the new Ukrainian Constitution on 28 June 1996 was a major event in the sphere of European constitutional law”[9]. In particular, the Commission noted that “the principles of the Rule of Law are well reflected in the text” and “checks and balances are present which should prevent recourse to authoritarian solutions”. In addition, it also underlined that “the important role of the Constitutional Court should contribute to the establishment of a democratic culture in Ukraine[10]

In general, “despite its shortcomings from a legal point of view”, the adoption of the Constitution in 1996 was seen by the Venice Commission as “an important step in the establishment of the country’s basic institutional setup and the character of the new state”[11]

In this regard, we may say that the 1996 Constitution, indeed replaced the principle of the concentration of power, characterizing the communist regime, with the principle of separation of powers and a system of checks and balances, characterizing a democracy. On the other hand, the text included some hidden risks for democracy since, as the Venice Commission has noticed, “it established a strong executive under the leadership of a powerful President”[12]. Moreover, “a powerful President” was operating within the executive simultaneously with the Cabinet of Ministers. This resulted not only in a dualism within the executive itself, but in a “supra-presidential” model of government in general. In the view of the Venice Commission, the 1996 Constitution resulted in “a concentration of powers in the hands of the President and in a constant legislative-executive confrontation.”[13] Further, “the text of the 1996 Constitution did not, taking into account realities in Ukraine, provide for sufficient checks and balances and that there was a risk of authoritarian presidential system”[14].

Therefore, the Constitution awaited its practical application through the special role assigned to the Constitutional Court. The Venice Commission, in its opinions, often recalls, “the importance of the role of constitutional courts in putting into practice democracy, the rule of law and the protection of human rights”[15].

During all the years the 1996 Constitution was in force, virtually each of the five Presidents attempted to change the Constitution to his own advantage or to act not in complete compliance with it for the same purpose. Each time the Constitutional Court had to come to the fore to resolve the question of whether the actions of this or that President constituted a threat to democracy.

The start was given during the second term of office of President Kuchma when it became obvious that he had opted for semi-autocratic rule. The first serious threat emerged when, on 15 January 2000, he made a second attempt to play with the rules having announced a six-point national referendum allegedly “on popular initiative”. His primary aim was to unconstitutionally use the referendum to adopt a new Constitution by a new referendum, thus replacing the democratically adopted 1996 Constitution. In this way, he hoped to install the same constitutional model of government that already existed in russia, Belarus or Kazakhstan. The political evolution of Ukraine was at that time on a similar trajectory to that of Belarus during the constitutional crisis of 1996, which led to the submission of the country to autocratic and finally to dictatorial presidential rule.

The Constitutional Court of Ukraine, in its ruling on 27 March 2000 struck out two of the six planned questions for the referendum (Nos. 1 and 6) having found them unconstitutional[16]. Thus, on the one hand, the Court prevented the dissolution of the then-legitimate Rada, as well as rejecting any future attempt of the President to dissolve the Parliament by means of a referendum (the subject matter of Question No. 1). Further, the Court rejected the President’s plan to replace the 1996 Constitution with an entirely new Constitution by means of referendum (the subject matter of Question No. 6). Had the Court held otherwise, the President would have been able to unilaterally put forward a draft of the new Constitution, bypassing the procedure established by the 1996 Constitution (Chapter XIII) under which the involvement of the Rada into the constitutional process is obligatory. By rejecting Kuchma’s scheme, the Court ensured that in the future Ukraine could avoid developments like those that had occurred in Belarus and Kazakhstan, where referenda were used as instruments to excessively strengthen the President’s powers[17].  (The  CCU firmly stands on the position that if some day it goes about the adoption of entirely new Constitution for Ukraine by the people at referendum, nevertheless this cannot be done directly, e.g. bypassing the Rada, as far as Chapter XIII of the 1996 Constitution in force prescribes the participation of the Rada in this process mandatory[18].)

Three years later, in 2003, quite a strange initiative to amend the Constitution came forward from MPs who proposed to extend the powers of the Parliament by empowering the Rada with the competence to define its own powers not only in the Constitution, but in ordinary laws as well. The Constitutional Court has rejected this option, having found it incompatible with the principle of division of powers enshrined in Article 6 of the Constitution[19].  In a number of  decisions, the CCU clearly indicated that the powers of the Parliament, as well as those of the President, are exhaustively defined in the Constitution that makes it impossible to pass ordinary laws to expand the scope of powers of these institutions[20].  

These were two concrete and demonstrative examples of positive solutions to prevent threats to democracy at the initial stage of constitutional consolidation in Ukraine which were institutionally made by the CCU.

The rule of President Kuchma, prone to autocracy, ended with an acute political crisis that arose at the end of 2004 after regular but initially falsified presidential elections, in which the pro-Western candidate Viktor Yuschenko, and not the pro-Moscow Viktor Yanukovych, finally emerged the winner. The events are known as the 2004 Orange Revolution and they did not allow an autocratic regime to take root in Ukraine at that time. However, pro-Moscow forces firmly embedded in the Ukrainian political soil, being frightened by the perspective of a pro-Western president coming to power under the 1996 Constitutional, managed to perform constitutional changes. The 2004 constitutional amendment provided for transforming the Ukrainian political system from a presidential-parliamentary system to a more parliamentary one, thereby essentially weakening the powers of the President.

In the next presidential elections in February 2010, the pro-Moscow Yanukovych became the President. Consequently, the period of 2010–2014 was marked by creeping personalist rule (“the Rule of Man”) where power was concentrated in the hands of a President who totally controlled the Parliament and Judiciary. This led to subsequent mass protests against him in 2013-2014 known as the Revolution of Dignity or simply, the Maidan. It can be said that the authoritarian presidential system transformed from “a risk” as predicted by the Venice Commission[21] into a practical reality. 

No matter how bitter it is to talk about, the truth is that the Court itself also contributed to Leviathan’s return to Ukraine in those years. To be even more precise, the Constitutional Court itself played a key role in giving the green light to curtail democracy and open the window for creeping autocracy. On 30 September 2010, the Court ruled all the 2004 constitutional amendments to be invalid and by its own judgment reinstated the pre-existing legal contents of the 1996 Constitution.[22] This decision, in effect, opened the way to a concentration of powers in the hands of the President. The ruling was the response to an application to the CCU in July 2010, ie., almost immediately after the presidential elections, by a majority of MPs (controlled by President Yanukovych) to recognize the 2004 constitutional amendment as non-conforming to the Constitution.

In this regard, the Venice Commission found “highly unusual that far-reaching constitutional amendments, including the change of the political system of the country – from a parliamentary system to a [presidential-parliamentary] one – are declared unconstitutional by a decision of the Constitutional Court after a period of 6 years. As Constitutional Courts are bound by the Constitution and do not stand above it, such decisions raise important questions of democratic legitimacy and the rule of law. It is clear that a change of the political system of a country based on a ruling of a constitutional court does not enjoy the legitimacy […]”[23]

This is an eloquent example of a failure to prevent threats to democracy in a democratic way. That failure, on the one hand, confirmed the foresight of the Venice Commission previous conclusion that “the strengthening of the powers of the President can become an obstacle for building genuine democratic structures and may eventually lead to an excessively authoritarian system”[24].  On the one hand, it appeared to be very costly for Ukrainian democracy and the people as far as “an excessively authoritarian system” led by Yanukovych was actually established in Ukraine by the end of 2013. It was even legalized soon thereafter by the Parliament when on January 16, 2014, the Rada (grossly violating legislative procedure), adopted a package of acts abolishing a number of fundamental rights and freedoms, and the President promulgated them immediately the next day. Society gave this package of laws the name “dictatorship laws of January 2014”. By their content, these were norms borrowed from russian legislation and some provisions were even stricter that the russian ones. (It is entirely plausible that they were written in the Kremlin and implemented in Ukraine by its servants.) The package was aimed primarily at preventing peaceful protests of citizens against the authoritarian regime of Yanukovych and to strengthen his repressive machine.

Despite all this, protests still took place. And they were massive. They are known as the Revolution of Dignity. And there were victims. More than 100 people were killed and became known as the “Heavenly Hundred[25].

It was only thanks to the Revolution of Dignity and to the sacrifice of the Heavenly Hundred that Ukraine’s democratic prospects were preserved. Unfortunately, it was not a case of preventing threats to democracy in a democratic way through institutional mechanisms. It was instead a case of preventing threats to democracy at the cost of human lives, when citizens themselves had no choice but resort to resolute protest against tyranny.

However, there may not have been a need for the Revolution of Dignity, just as there would not have been the need to lose lives, if the CCU had not opened the way for threats to democracy four years before with its Judgment of September 30, 2010. Or if the entire Ukrainian political establishment, in general, had properly appreciated the formula of the Preamble of the Universal Declaration of Human Rights:   

“[...] it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”[26].

In the period of the authoritarian presidential rule of Yanukovych, there was another attempt to replace the 1996 Constitution with a totally new one using a national referendum but bypassing the procedure established by Chapter XIII of the Constitution (the first attempt was during the Kuchma’s rule when he announced his own “referendum on people’s initiative”[27]).

On 6 November, 2012, the Rada for this purpose passed an ordinary law (No. 5475-VI) which provided for such an opportunity. Fortunately, the regime of Yanukovych did not take advantage of it. And six years later, the real threat to democracy in terms of this ordinary law was eliminated due to the contribution of the Constitutional Court when it found the aim of the law illegitimate and the law itself totally unconstitutional. It stated some rather important constitutional positons, in particular, that:

  • “The people, while possessing the sovereign prerogative regarding the exercise of constituent power, at the same time is within the limits defined by the Constitution regarding the order of its exercise”;
  • “The Constitution, being the result of the exercise of the constituent power by the people, by establishing the order of amendments to it, determines the procedural limits for the exercise of power by the people themselves”[28].  

The Constitutional Court also performed its mission as the guarantor of democracy by finding unconstitutional the exclusion of parliamentary candidates from the election list in the national multi-member constituency after the tabulation of the results. (Such an option became possible when the Rada amended, in 2016, the Law on elections of People’s Deputies of Ukraine.) In this regard, the Court stated, in particular, that such an exclusion “is incompatible with the principles of people’s power, free elections and democratic state”[29].

After presidential elections in 2019, the newly-elected President initiated seven amendments to the Constitution, thus making them subject to judicial review.

One of the proposed amendments was to empower the people with legislative initiative, i.e., to expand the list of the existing subjects of legislative initiative (according to Article 93 of the Constitution: the President, MPs, the Cabinet) with a new subject, namely, “the people”. The Constitutional Court was critical of such a proposal and made a number of reservations given that such an amendment “may lead to human rights violations under certain conditions” and the very notion “the people” required clear qualification[30].

The idea of another constitutional amendment was to install “the Parliamentary control of adherence to the Constitution and the laws of Ukraine in certain areas which will be performed by the Commissioners appointed by the Verkhovna Rada and the legal status of whom will be defined by the laws”. The Constitutional Court has found such a proposal incompatible with the principles and the requirements of the Constitution, in particular, in light of the principles of separation of powers, the rule of law and human rights. On this ground, the Court rejected the proposed amendment[31]

The President’s other constitutional amendments were proposals to expand the President’s powers enlisted in Article 106 of the Constitution. It was proposed that the President of Ukraine should, in particular, “create independent regulatory organs, the National Anti-corruption Bureau; appoint and dismiss the Director of the National Anti-corruption Bureau and the Director of the State Investigative Bureau”. The Constitutional Court has also rejected this amendment on the grounds that:

“Such expansion of the powers of the President of Ukraine will result in a redistribution of powers between the President of Ukraine and the Cabinet of Ministers of Ukraine, which will cause an imbalance in the existing system of checks and balances in the mechanism of exercising sate power in Ukraine and the endowment of the President of Ukraine with functions and powers that are not typical for him, which may lead to a gradual and veiled changes in the balance of power”[32].

In this case, the Court was guided by the general rule that an imbalance in the system of checks and balances inevitably constitutes a threat to human rights and fundamental freedoms and thereby to democracy itself.

Another presidential initiative among others was an amendment expanding the grounds for early termination of the powers of MPs contained in Article 81 of the Constitution. As was mentioned in an Explanatory Note, “strengthening of parliamentary discipline” was the aim. One of the grounds for the loss of a deputy’s mandate in the draft Amendment was the departure of a deputy from the parliamentary faction of the political party (a block of parties) on the lists of which a deputy elected. The Constitutional Court found this ground to be incompatible with the traditions and principles of liberal and pluralistic democracy. In its essence this constituted an imperative mandate, which was in contradiction to European standards of representative democracy. Therefore, the Court rejected the amendment as a whole, considering it to lead to the violation of human rights and fundamental freedoms, and not in compliance with Article 157 of the Constitution[33].

In total, out of seven initiatives of the President to amend the Constitution put forward by him immediately after his election, the Constitutional Court rejected four of them, considering their implementation as the threats to democracy.

This case in Ukrainian constitutional development is not an ordinary one. It demonstrates the maturing of the Constitutional Court and the adherence to Western values as compared to the period before the Revolution of Dignity. To a large extent, this became possible thanks to the essential constitutional reform of 2016. This marked a major victory for the institutionalization of the independence of the Court making it compliant with almost all EU Rule of Law requirements.

The success of the 2016 constitutional reform itself as well as Ukraine’s other achievements in promoting Western values in the country would not have been possible without the long-term and fruitful support of the Venice Commission. Indeed, it is difficult to imagine Ukraine as the dynamic democracy that it is today without the Commission’s steely assessments of its progress, keeping the country on a “straight and narrow” democratic path. There is no doubt in my mind that it was the guidance of the Venice Commission that helped shape Ukraine’s modern constitutional development according to the patterns of Western democratic values. The influence of the Venice Commission in guiding, educating and cajoling Ukraine into the institutionalization of democracy, the Rule of Law and human rights has had a profound impact on Ukraine’s unalterable integration into the European family of democratic nations and traditions. In effect, the Commission became the backbone of the Ukrainian legal system.

The path taken by Ukraine with the support of the Venice Commission since the adoption of the 1996 Constitution[34] was accompanying by repeated attempts both by external forces and their internal allies in Ukraine, to turn Ukraine away from the European vector of development, and a number of the examples given above prove that. And, in the end, it allowed Ukraine to achieve, albeit an intermediate but significant goal – to obtain the status of a candidate country for membership of the EU (as it follows from the decision of the European Council adopted on the basis of the Opinion of the European Commission dated June 17, 2022[35]).

A quarter-century of practice and two attempts during the rule of Kuchma and Yanukovych to undermine the constitutional structure of the state, have proven that in Ukraine, the authoritarian model not only does not take root, but that it cannot work.

Now let us look into the future. The future, when Ukraine will defeat its cursed enemy, the Muscovites, and will win the battle for freedom. For salvation from invasion by a neighboring dictator. For the right to choose our own path. For the right to live as a European country. For the right to be part of the civilized Western world.

Can we now be sure that the political class who will take power in that future will not be tempted by authoritarianism? Even of a “light” variety? 

Instead of answering this question, I would like to make a remark: we must be vigilant - so that after Ukraine defeats the external monster, a domestic Leviathan does not take up residence in the home of Free and Independent Ukraine.     

 

September 15, 2022

 


[1]*** Here and further the words russian and russia are put with a lowercase letter, which should not be taken as a spelling error, but as a matter of principle for the author (my own remark. – S.H.).

[2] See Yaroslav Hrytsak. Radical reforms are a prerequisite for Ukraine’s victory and its transformation into a “Central European tiger”. URL.: http://www.pravda.com.ua/columns/2022/08/12/7362980/ [In Ukrainian].  

[3] See Pritsak O. The Pylyp Orlyk Constitution: The First Constitution of Ukraine by Pylyp Orlyk, 1710. – Kyiv: Veselka, 1994. P. 4 (In Ukrainian).

[4] See Chapter VI of the Pacta et Constitutiones … 1710.   

[5] Ibidem.    

[6] See Chapter I of the Pacta et Constitutiones … 1710.   

[7] See CDL-INF (95) 2, § 1.

[8] Putin has long declared that Ukraine has never existed as an independent country, in particular, as early as 2008 he said that Ukraine is “not even a state” and just before invasion, in February 2022, he argued that “modern Ukraine was entirely and fully created by Russia”. See: Tanisha M. Fasal. The Return of Conquest? Why the Future of Global Order Hinges on Ukraine. In: Foreign Affairs, May/June 2022.

[9] See European Commission for Democracy through Law, Annual Report of Activities for 1996. Strasbourg, 1997.

[10] See CDL-INF (97) 2, Conclusions.

[11] See CDL-AD (2010) 044, § 8.

[12]  See CDL-INF (97) 2, Conclusions.

[13] See CDL-AD (2010) 044, § 12.

[14] See CDL-AD (2010) 044, § 69.

[15] See, in particular, CDL-AD (2010) 044, § 52.

[16] CCU Judgment No. 3-rp/2000 of 27 March 2000.

[17] For some more on this issue see: Serhiy Holovaty. Ukraine in Transition: From Newly Emerged Democracy towards Autocracy? In: Review of Central and East European Law Volume 26, No. 3, 2000. P. 299–309.

[18] See CCU Judgment No. 6-rp/2008 of 16 April 2008.

[19] CCU Opinion No. 3-v/2003 of 30 October 2003.

[20] See CCU Judgment No. 7-rp/2003 of 10 April 2003; CCU Judgment No. 9-rp/2004 of 7 April 2004; CCU Judgment No. 21-rp/2008 of 8 October 2008; CCU Judgment No. 32-rp/2009 of 17 December 2009.

[21] See footnote 14 above.

[22] CCU Judgment No. 20-rp/2010 of 30 September 2010.

[23] See CDL-AD (2020) 044, §§ 35–37.

[24] Ibidem, § 64.

[25]Heavenly Hundred” is a symbolic collective name of the dead protesters during the Revolution of Dignity which is also called Euromaidan

[26] Universal Declaration of Human Rights (1948). Preamble.

[27] See footnote 18 above.

[28] See CCU Judgment No. 4-r/2018 as of 26 April 2018.

[29] See CCU Judgment No. 3-r/2017 as of 21 December 2017.

[30] See CCU Opinion No. 5-v/2019 as of 13 November 2019.

[31] See CCU Opinion No. 6-v/2019 as of 20 November 2019.

[32] See CCU Opinion No. 7-v/2019 as of 16 December 2019.

[33] See CCU Opinion No. 9-v/2019 as of 26 December 2019.

[34] More on the contribution of the Venice Commission to the transformations in Ukraine see: Serhiy Holovaty. Backbone of the Rule of Law: The Decisive Contribution of the Venice Commission in Ukraine. In: Venice Commission. Thirty Years of Quest for Democracy through Law: 1990–2020. – Lund: Juristförlaget i Lund, 2020. – P. 339–364.

[35] See Opinion on Ukraine’s application for membership of the European Union, European Commission, Brussels, 17.6.22022 COM(2022) 407 final. URL: https://ec.europa.eu/neighbourhood-enlargement/opinion-ukraines-application-membership-european-union_en

 

 

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