Which Constitution does Ukraine need?

It is good that there are many people in Ukraine who understand that the main reason for the prolonged conflict between the people and the government lies in the imperfections of Ukraine’s management system, that is, in the Constitution. If this system is not adjusted, then once again a well-known expression that the revolution is done by romantics, and its fruits is enjoyed by the cynics will be justified. The constitutional reform cannot be done by trial and error, but should be based on the modern academic knowledge.

The purpose of this article, the author of which is our supporter, Igor Veniaminovych Shevchenko, is to list and explain the key constitutional changes, without which it will be rather difficult for Ukraine to become a prosperous democratic country, to the average reader.

To understand the importance and necessity of constitutional changes, we must first make a small philosophical digression.

All living organisms on Earth, including the man, are endowed with a common feature required for survival of an individual being and species in general, i.e. selfishness. It is selfishness, programmed at the genetic level, which largely determines the behavior of all living beings, including then human social behavior.

The division of labor and the formation of the state led to the need for the distribution of the social product. However, the person in whose hands the power and, consequently, the access to the national product is concentrated, is as selfish as all the others. His natural desire to retain the power in the absence of control mechanisms on the part of society leads inevitably to despotism and mass violations of human rights.

The distinguishing feature of despotism any species, i.e. dictatorship, authoritarianism, totalitarianism, is the centralization of power and the presence of “executive branch” to be appointed from the center and therefore uncontrollable by the public because it is not directly elected by it.

The REPUBLIC is a UNITED form of organization of public administration, which MAKES the authorities to respect the rights of citizens. This is not because only honest and moral people acquire the power, but because in the republican form of government the respect for rights of the others is the most reasonable way to realize one’s selfishness. That is, doing so is advantageous. In other words, in the republican form of government, the natural human selfishness does not disappear, but is used seamlessly for mutual monitoring of people in government and society. Since selfishness is inherent in all people, regardless of nationality, then the republic, as the optimal form of fair organization of power in the state, is universal for all countries and peoples. Immanuel Kant postulated this concept for the first time 230 years ago. The second half of the 20th century demonstrated the parade of victorious formation of Republics.

The republican form of government also has the other important advantages. It is more economically viable and competitive, so it provides the people with a higher standard of living. It is also essential that the countries with a republican form of government do not fight among themselves. This happens not because the people are pacifists, and because it appears advantageous to resolve all disputes peacefully and not by military means.

In general, the republic can be defined as the division of power into executive, legislative and judicial branches, the functioning of comprehensive local governments and the lack of any designation of the “vertical of power”.

The current Constitution of Ukraine should be called a “presidential-parliamentary non-republic.” The formal separation of powers does exist in Ukraine, but this is not enough. Ukraine is still not a republic, as the local government there is completely blocked and appointed from above by a “vertical of power” in the form of the so-called state administrations. This authoritarian executive branch allows the appointer to intervene directly or indirectly in all branches of the government, paralyzing their main purpose, the mutual control.

Thus, the first and the most important point of the constitutional reform should be the establishment of the Republic by complete abolition of state administrations at all levels and the transfer of administrative functions to the executive committees of local councils.

The cancellation of state administrations will automatically eliminate many existing systemic problems, i.e. the problems caused by the management system.

The distribution of the public funds by the heads of satte administrations designated from above uncontrolled by the public inevitably breeds the corruption and budget looting. This is what is happening in Ukraine. The governors understand that the duration of their distribution activities with impunity, and therefore their personal well-being and even freedom does not depend on the voters, but only on the will of the “master” who appointed them. This leads to a “doggish” commitment and natural cowardice for fair elections, since the arrival of the new “patron” does not guarantee the preservation of office by the governors and makes them falsify the presidential election with genuine eagerness. Needless to say that the President in the elections is interested in obedient and devoted falsifiers, and during the parliamentary elections, the Ukrainian president could use them to influence the electoral outcome of opposition parties and majoritarian candidates.

Thus, the abolition of state administrations appointed on the top and establishment of local self-government automatically minimizes the systemic corruption and electoral fraud. This, in turn, will lead to the fact that the Parliament will cease to be the props. Instead, it will reflect a real spectrum of public opinions and will become a valid controller and a counterweight to the executive power.

Another important consequence of the elimination of state administrations and introduction of the local self-government will become the “bottom-up” generation of the state budget. Once the evaluation of local leaders’ activities, and hence their personal well-being, will depend on the results of local elections, their psychology will be changed instantly, and the local budget will be used to satisfy the voters to the most. The official’s conduct is governed by a natural selfishness. Only the funds, which should be transferred to the goals that cannot be implemented at the local level, will be sparingly deducted to the top. The local government provides for the maximum local use of citizens’ tax and thus automatically prevents the centralization of power. This is the case in all democratic countries, but not because there are different people, but because the local authorities are always elected there. Conversely, if the local supervisor does not depend on the voter, as it is now in Ukraine, nut on the “guarantor” who appointed it from above, all the money will be given obediently to the top and the local budgets will remain without money.

 

Head of the State and its functions

In the Republic, the actual head of the state is the head of the executive branch. The government management is its main function. The method of electing the head of the government determines the form of Republic, i.e. parliamentary or presidential.

The government manages the country’s central budget, i.e. taxes of its citizens. Therefore, the actual head of the state is the one who actually leads the government. The great power is concentrated in his hands, which can be used both for the benefit and harm of people. The history is replete with examples when the tyrants started a civil war in their own country to retain the power. Besides, the people can easily be managed with money, resorting to their natural selfishness. The public sector employees, as well as the poor and poorly educated population is particularly susceptible to such influence. The more such people are in society, the easier the tyrant will hold the power. Therefore, the decentralization of management and continuous monitoring of the activities of the executive power and its chairman is the main objective of both society and the legislative and judicial branches.

The regular, competitive and fair elections are the main tool in the hands of the people to control the head of the state and the government in general.

The head of the government can be elected in two ways, either by direct individual election or based on the results of the parliamentary elections only (as in most democracies). In the first case, the Republic called presidential, such as the United States. It controls the government and the President acts as a head of the state. Otherwise, the republic is called parliamentary; here the de facto head of the state is the Prime Minister.

It is not so important whether a presidential or parliamentary republic will be implemented in Ukraine. The main thing that it was a Republic, and this, as stated in paragraph 1, requires the implementation of a local government and cancellation of the appointment of executive branch (state administration) from the top.

Each of these two forms has its advantages and disadvantages. For example, the presidential republic, upon limitation of the term of office of the head of the state results in an automatic change of leadership of the party to which the President belongs. This is a good way to maintain the internal democracy. Besides, the election of the head of the government and parliament at separate elections may lead to the situations where the President’s party does not have a clear majority in the parliament, which only increases the control over the President and the government it manages. In the parliamentary republic, such situations are impossible.

However, based on the aggregate data, the parliamentary republic should be considered more attractive. Not by chance, this form was ingrained in most democratic countries. Firstly, it is more reasonable and economical, as it allows choosing both a parliament and the head of the government, the most influential man in the country, at one election. Secondly, compared to the personalized direct elections, election of the head of the government through the parliament better encourages the multi-party and party structuring of the society. This, in turn, serves as a defense mechanism against the monopoly of one party, which is particularly important for societies with a long authoritarian or totalitarian past. By no chance, the Parliamentary Republic was chosen for the West Germany in 1949. For this reason, the said form is more acceptable for Ukraine. Thirdly, in the Parliamentary Republic, when no party gets an absolute majority, the government can be formed only as a result of coalition agreements of different parties. Search for a compromise in this case is a very effective means of addressing the internal social conflicts.

However, there are situations when a coalition government, because of insurmountable contradictions, cannot be generated or breaks prematurely. This circumstance requires that a parliamentary republic had another political figure, which would be endowed with a very important power, i.e. the right of convocation of early elections in cases strictly defined by the Constitution. To do this, the parliaments, for example, in Germany and Italy elect the President only as a representative figure.The President should not belong to any party! Otherwise, the dissolution of the parliament can be motivated by the interests of a particular political force. In countries where the monarchy is preserved as a historical vestige (for example, the UK, Sweden, Spain, Japan), this function is performed by the monarch who is a priori politically neutral.

Added to this is that in the Parliamentary Republic of Canada there is no President or monarch, and the early elections are convened by the Governor-General, who is still appointed by the English Queen according to a historical tradition. Meanwhile, Canada is an independent country, although once, during the pre-republic epoch, the appointed Governor-General had all the power, and Canada was actually managed by England.

The figures of Presidents in presidential and parliamentary republic should not be confused. In the first case, it is the head of the state elected by separate election and carrying out a political responsibility as a representative of a certain political party. In the Parliamentary Republic, the de facto head of the state is the Prime Minister, who also represents a certain party and along with it is politically responsible for the course held in the country. That is why, for example, everyone knows who is the current head of the German government (Chancellor) and only few will remember the name of the German President.

The President in the Parliamentary Republic performs only monitoring functions for which the political bias is unacceptable. It convenes the early parliamentary elections and retires the Prime Minister (in cases clearly defined by the Constitution), appoints the judges, guarantees the Constitution and performs the limited representative functions. He is also authorized to issue the orders and instructions, which, still, should not contradict to the government policy and therefore become valid only when signed by the Prime Minister or relevant ministers. There can be no bi-power, from which Ukrfaine suffered during Tymoshenko as a Prime Minister and Yuschenko as a President.

Therefore, in the Parliamentary Republic, the power branches are well-balanced, and everything depends on the voters’ will. The head of the government as a central political figure is controlled by the parliament as a collective body and by a politically neutral President (or monarch) who does not interfere in the government work, but appoints the early elections in the cases of public discontent. In such a system, the political system currently observed in Ukraine is absolutely impossible. The people have noreason to request the early elections though long-lastingn meetings on the frost or even at the cost of human lives, since the early elections are convened immediately at a first sign of public discontent.

Thus, in the Parliamentary Republic the President’s political neutrality is a necessary condition. This condition can be met much easier if the President is elected in the Parliament from among the candidates of nation’s moral authority proposed by different parties (e.g., scientists, artists, etc.). It is difficult and counterproductive to achieve this result at the popular election from an economic point of view.

A small number of countries (e.g. France, Finland) historically established a mixed form Republic. This form is called a presidential-parliamentary or parliamentary-presidential, which is the same. It elects the President separately, who is the actual head of the government, but to manahe an economic unit, the candidature of the Prime Ministeris submitted to the parliament for approval. This form is less effective and balanced. For example, if the party of the President has a majority in the parliament, the approval of its nominee becomes an unnecessary formality, and otherwise may result in unnecessary complexity.

I urge anyone who is thinking about the constitutional reform to agree that it should not be a compromise of political or, even more, pragmatic interests. The republican system is a universal best form of government for all peoples. It is absurd to consider it in terms of national interest or features of national mentality, for example, like a multiplication table. The accumulated historical experience shows that a pure parliamentary republic is most effective. Since the current acute political crisis in Ukraine is generated by the existing Constitution, and the guarantee of its non-repetition in the future is a new Constitution, it would be extremely unwise to reject the most effective, proven practices of the other countries and repeat the historical errors of making unsystematic individual changes.

 

Judicial reform

The quintessence of the judicial reform is an autonomous self-government of the judiciary system and its maximum isolation from politics. There should be no form of influence of the legislative and especially executive power on the judiciary system. The current situation where the judges are appointed and removed by the President, who is also the de facto head of the government, is absolutely unacceptable and should be removed immediately.

In principle, the introduction of the Republican form of government (better a parliamentary republic) in Ukraine, that the abolition of the appointed state administrations and establishment of a comprehensive local government automatically make the judiciary system more independent and little susceptible to external influences. The judges can be elected within the judicial system or appointed by a politically neutral President (like in Germany). It is already a well-established global democratic practice, and therte is no need to invent something new.

There are two fundamental issues, without addressing of which it will be impossible to reach the fair and just elections, and minimize the corruption and abuse of power. One of them is financing of political parties and the other is separation of business and power. They shall not necessarily be brought to the constitutional level, and can be prescribed by separate laws. However, the importance of these issues makes me consider them in this article about the constitutional reform.

 

Funding of political parties

The political parties perform several important functions without which the public interest representation in the government is impossible. The parties structure the society and represent different social interests in the parliament. The party environment generates the political programs and political leaders. Belonging of a candidate to a certain political party is an important criterion for voters during the election. Therefore, the parliament, as a body of party representation of various social interests, should be formed under conditions of a fair party competition. Otherwise, the parliament will always be a “distorting mirror” of society, unable to adopt the laws in the public interests, and therefore will be a constant source of public discontent.

The cancellation of state administrations and establishment of the local government (see. § 1) will prevent the systemic falsification of results. However, it cannot provide an equal party competition, especially during the pre-election period. To implement this condition, an equal funding of political parties is required.

The political parties shall be funded from three sources, i.e. through membership contributions, through donations from external private organizations and through funding from the budget. The financial support from the business should be absolutely transparent, and donations above a certain threshold should be declared. The violation of this condition shall entail severe sanctions. The size of the budget funding should be proportional to the numerical representation of parties in the parliament. For example, in Germany the party who gained more than 0.5% votes during the election shall receive € 0.85 per electoral vote. The state support for political parties may seem to someone a waste of taxpayers’ money, but it is extremely important and absolutely necessary, since the representation of various social interests in the power is impossible without strong political parties organized according to the principles of internal democracy.

 

Separation of business and power

The natural selfishness will inevitability lead to abuse of power in favor of their own business, if one person combines the economic and political activities. This is true not only for Ukrainians; it is international and applies to all nations and peoples. The republic, as a form of state control, does not make people better and does not deprive them of selfishness; it only uses this natural feature for organization of mutual monitoring.

It’s no secret that the political activity of a significant part of Ukrainian people’s deputies and ministers is not motivated by rights by delegated voters but by the interests of private business. It can generate nothing but corruption. Moreover, through the pressure on business of parliamentarians, the executive power can manage their votes in the parliament, which is our current reality. It will be the case in any country, unless politics is separated from business. You need not “reinvent the wheel”, but simply borrow the experience of other countries.

The ersons empowered, during the period of their political activity, shall transfer their business (and the business of their immediate family) for management to a state structure specifically designed for this purpose. Such a system should be considered more effective than a simple prohibition of combining the power with business.

Thus, the reform of the state government and administration in Ukraine should contain at least the following four elements.

  1. Republic establishment, that is a complete abolition of state administrations at all levels and transfer of administrative functions to the executive committees formed by local councils.
  2. Approval of the Parliamentary Republic as the most effective of the three existing forms, that is, the formation of the government and head of the cabinet of ministers in the parliament based on the results of parliamentary elections (thnrough the coalition agreements of different political forces, if required). Thus, the head of the government becomes the de facto head of the state. The election of a politically neutral President shall place in the parliament from among the “moral authorities” of the nation. Its main right is convocation of early elections in cases clearly defined by the Constitution. Meanwhile a politically impartial President may appoint the judges to issue the orders and decrees with the consent of the government, and perform the representative functions abroad and enter into the contracts without interference in the politics of the Ministry of Foreign Affairs.
  3. Providing state support and equitable financing of political parties, which entered the parliament.
  4. Separation of power and commerce through the transfer of people’s deputies business (and the business of their immediate family) for management to a state structure specifically designed for this purpose for the period of their state activity.
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