For many, June 28 is just another day off. And for those who will be working, like politicians, analysts, technologists and various experts, it is an occasion to improve their verbal skills and swear allegiance to principles that no one is really going to follow. We want to move away from the tradition of eloquent talk and say a few words about our “birthday girl” simply, warmly and humanely. After all, she is worth it, and another thing - whether we are worthy of her. For the 24th anniversary of the adoption of the Ukrainian Constitution, 112.ua has prepared 24 facts about her life.
No, we are not the first
There is a beautiful myth that it was Ukraine that gave the world its first constitution. But this is not the case. Of course, much rests on what exactly is considered a constitution. If by this term we mean the consolidation of human rights and freedoms (or the prototype of such rights), then the title of pioneer here goes to the Grand Charter of Freedoms, concluded on June 15, 1215.
The Charter has a long history that we will not retell. As a spoiler, we note that one of the British kings - John the Landless - began to behave quite brazenly and encroach on local government. It was against the interests of the barons, who did not like it, and they went to fight King John. The king, in order not to lose the crown and his head, was forced to sign 63 articles of the charter, which guaranteed the rights and freedoms of the nobility, as well as declared the rule of law. And although ordinary people were not mentioned in the charter, it was the first document of this kind.
Still, Pylyp Orlyk is amazing!
As for Pylyp Orlyk, the Hetman of Zaporizhian Cossacks, to whom the world's first constitution is attributed, the story is as follows. The document concluded by him on April 5, 1710, contained rather symbolic instructions, which declared the ideas and principles on which the Cossack state was to be built. The first paragraph is devoted to the question of faith, it declares Orthodoxy as the dominant religion in the Cossack state, as well as the restoration of the autocephaly of the Ukrainian church. The third paragraph of the constitution speaks of the need for “brotherhood” with the Crimean Khanate.
It is noteworthy that in the social and economic sense, Orlyk's constitution gave more recognition not so much to the Cossacks, but to the peasants and townspeople. The document, first of all, strictly forbade statute labor. There were also privileges for cities that no longer had to support troops - they went on campaigns at their own expense. According to Orlyk Constitution, small traders did not pay taxes. There was a division into legislative, executive and judicial branches of government. And the guarantor of the integrity of the state's borders was Hetman - as now the President. In general, it turned out quite well, but there is one “but”: Orlyk's constitution never came into force.
Next Constitution was written in two centuries
The next Constitution was also a shot in the air, as the state where it was to become the fundamental law was not created. On April 29, 1918, the last day of the Central Rada's existence, the Constitution of the Ukrainian People's Republic (Charter on the State System, Rights and Freedoms of the Ukrainian People's Republic) was adopted. The Constitution emphasized that all power in the UPR “comes from the people,” and that its supreme body should be the National Assembly. The Constitution affirmed the principle of parliamentary supremacy, but did not address issues of property, borders, language, state symbols, and so on.
Skoropadsky also tried
After the fall of the Central Rada, Pavlo Skoropadsky came to power in Ukraine. He declared himself Hetman and dissolved the Central Rada. He also wrote something close to a Constitution, namely “Laws on Temporary State System of Ukraine.” According to them, all power was concentrated in the hands of the Hetman, they introduced class division of the population with equal rights – Cossacks and citizens, and the supreme judicial power was exercised by the General Court appointed by the Hetman.
There were four Soviet constitutions
During the Soviet era, Ukraine survived four constitutions - 1919, 1929, 1937 and 1978. Each of them had their own characteristics. The 1919 Constitution established the dictatorship of the proletariat, the 1929 Constitution declared the voluntary entry of Ukraine into the Soviet Union, the 1937 Constitution was a mold of the “Stalinist constitution” of the USSR of 1936, and the 1978 Constitution contained a rule on the “leading role of the party.”
Constitution of 1996 was a divorce with USSR
It should be noted that even after the proclamation of Independence in 1991, Ukraine continued to live by the Soviet constitution of 1978. And it continued like this for five long years. Only on June 28, 1996, after 23 hours of debate in the session hall of the parliament, thanks to 315 MPs who voted “for,” Ukraine finally filed for a legal “divorce” with both Russia and the USSR by passing its Constitution.
At the same time, the national anthem approved by the Constitution was played for the first time and the blue and yellow flag was solemnly introduced.
Constitution was being written for three years and adopted thanks to coffee
The process of writing the Constitution was very long and complicated, and it started with a nationwide discussion of its provisions, launched back in 1993. Actual work on it began in parliament on April 4, 1996, when 10 parliamentary factions (excluding the Socialists and Communists) formed an inter-faction parliamentary group to draft the Constitution. It was headed by the then Deputy Chairman of the People's Movement of Ukraine Oleksandr Lavrynovych. He was later replaced by the late Mykhailo Syrota.
On May 11, 1996, the draft Constitution was submitted to the Verkhovna Rada. Work began in the commissions and the session hall. “Several times it almost led to a fight and disruption of the meeting,” the MP of the second convocation Valentyn Yablonsky recalls. Finally, on June 4, 1996, 258 MPs voted in favor of the draft Constitution in the first reading. And on June 27, the consideration of the document in the second reading began - this is how the famous “constitutional night” started. Finally, on June 28, 1996, at 9:18 a.m., the Constitution was adopted.
“It's good that there was a buffet downstairs. Only bartenders know how much black coffee was drunk then, because it was late at night, everyone's body needed a rest, and we had no right to do that,” Yablonsky says.
Constitution 1996 had a prototype
In the mid-1990s, the confrontation between then-Ukrainian President Leonid Kuchma and then-Verkhovna Rada Speaker Oleksandr Moroz reached its peak. Kuchma threatened to dissolve parliament, and to avoid this, representatives of parliamentary factions signed a so-called Constitutional Treaty with the president. It was in 1995.
The Constitutional Treaty was both a compromise between the legislative and executive branches of government and a prototype of the future Constitution. It significantly strengthened the power of the President of Ukraine. The key point: the heads of the regions were not elected, but appointed by the head of state, which gave Kuchma control over the regions - the most important tool of governing the country.
And in general, the range of powers of the executive bodies and their influence on economic and social processes has significantly increased. The President of Ukraine was recognized as the head of state and head of the executive branch. President personally appointed the Cabinet of Ministers and the Prime Minister.
Kuchma prepared referendum to adopt “his” Constitution
No matter how much we criticize the 1996 Constitution, Ukraine could get a much worse version of it - the situation was saved by the famous “constitutional night,” because Leonid Kuchma had already planned a referendum to approve the Constitution in his own version for the fall of 1996. The power of parliamentarianism manifested itself in the fact that the Verkhovna Rada prevented the president from completely usurping power - just like the British feudal lords slapped the hands of John, King of England at one time.
Verkhovna Rada disputed about model of a parliamentary and presidential republic
Participants in the process of adopting the Constitution recall that the main issue was the discussion on powers: the Presidential Administration and Leonid Kuchma personally were strongly opposed to the state becoming a parliamentary republic. The process was long and exhausting.
At the finishing line, the struggle mostly unfolded between two groups of MPs: those who advocated hard presidential power and centrism, and those who preferred a parliamentary republic. To strengthen the power of the president, it was proposed to establish a bicameral parliament. But this norm did not pass.
We failed to remove Russian ships from Crimea…
“The discussion about Crimea was very sharp,”- Volodymyr Stretovych, an MP of the second convocation, recalls in an interview with Radio Liberty, - “The first edition of the Constitution stated that the deployment of military bases of foreign states on the territory of Ukraine is not allowed, and this should have been written in the main part with general provisions. But because there was a huge pressure from Russia, this issue was excluded under some influence, because the Constitution was a compromise document.”
“Then it was decided as a half-measure to move this issue to the transitional and final provisions, which state the period for which the Black Sea Fleet troops remain, but not more than 20 years, which is until 2017, and it then found consensus. This discussion was very sharp and long and it involved the experts from NATO. By a compromise, they came up with a formula,” the former MP said. It is possible that, if not for the additional 20-year presence of the Black Sea Fleet in the Crimea, the events of 2014 would have developed by a different scenario.
… but managed to remove the “President of Crimea”
Few people remember this now, but in 1993-1995 there was such a position as “President of Crimea.” The first and last president of the peninsula was the pro-Russian politician Yuriy Meshkov. Oleksandr Moroz insisted and during the discussion of the text of the Constitution, the norm on this position was withdrawn.
As for God, Moroz offered a compromise
Another intervention of Moroz in the process was decisive. When MPs began voting on the preamble to the Constitution, there was a delay. The preamble contained the words: “being aware of the responsibility before the God.” The Communists strongly opposed such a wording. In the end, Speaker Moroz proposed a compromise: “Let's face it: those who believe in God are aware of their responsibility before the God. For those who do not believe in God, we write after a comma “before one’s conscience.” The preamble to the Constitution still exists in this version.
There could be have been three capitals in Ukraine
Academician Volodymyr Semynozhenko proposed such an unexpected initiative. He suggested that Ukraine should have several capitals. The legal capital is Kharkiv, the administrative capital is Kyiv, and the financial capital is Dnipropetrovsk. Needless to say, this norm was not passed during the discussion of the Constitution.
Biggest sticking point is the Ukrainian people
Witnesses to the adoption of the Constitution list the top 3 most controversial moments. The first is the preamble quoted above with the mention of God. The second is the blue-yellow symbolism, which was strongly opposed by the left forces. Communists and Socialists insisted that “at least somewhere there must be something red - at least a 'stripe' of some kind!” ex-MP Viktor Musiyaka recalls. However, in the end, no red stripes were added.
Finally, the last point concerned what wording should be used in the Constitution – “Ukrainian people”or “people of Ukraine.” “It was a matter of life and death,” a parliamentarian from previous convocations Roman Bezsmertny told Ukrainian Pravda. “In the end, Ivan Popescu, an MP from the Chernivtsi region, found a formula that “the Ukrainian people” should be written with capital letters as a proper name (thus avoiding ethnic affiliation).”
We have more rights than obligations
And now we, the “the Ukrainian people,” according to the Constitution, have much more rights and freedoms than duties. At least, the constitutionalists counted like this. Isn't this the root of our non-fulfillment of the Constitution itself?
Constitution of Ukraine has a number of guarantees that are not fulfilled
However, it is not just about the people. One of the points that make our Constitution look like a kind of “anachronism” is related to the contradiction between the high level of rights and freedoms provided by it and the imperfect system of government, which is unable to guarantee these rights and freedoms. This applies primarily to the social sphere, in particular free medicine and education, which remain purely declarative (and decorative!) provisions.
President swears by Constitution, but there is no such requirement in it
The Constitution itself does not regulate the procedure of the inauguration of the President of Ukraine and does not even contain such a term. It provides only the text of the oath of the head of state. The laying of the presidential hand on the Constitution is regulated by a resolution of the Verkhovna Rada. As for the Peresopnytsia Gospel, the oath is taken at the request of the person involved. However, so far Ukraine has not known of any inauguration ceremony where the president would not swear on both the Constitution and the Gospel at the same time.
Constitution was amended 8 times
Amendments were made in 2006, 2010, 2011, 2013, 2014, 2016, 2019 and 2020. The last two of them concern the enshrinement in the Constitution of the course of rapprochement with NATO and the EU, as well as the lifting of parliamentary immunity. It is not much actually, because, for example, 27 amendments have been made to the U.S. Constitution. But here, however, it is worth noting that the U.S. Constitution dates back to 1787, that is, it has existed for 233 years, not 24.
Constitution could have been amended in referendum of 2000
In 2000, an All-Ukrainian referendum was held on the initiative of Leonid Kuchma. 4 questions were addressed. The then guarantor returned to the idea of a bicameral parliament, the implementation of which could strengthen the presidential vertical. The bicameral parliament was one of the issues of the plebiscite at the time. The other three concerned the expansion of the president's powers in the event of the dissolution of parliament, reduction of the Verkhovna Rada to 300 MPs, and lifting of parliamentary immunity.
All four questions were answered in the affirmative by the referendum participants, but the results were never implemented. The situation did not change even when the Constitutional Court ruled that the results of the will of the people of Ukraine did not require any approval from the Verkhovna Rada of Ukraine and had the force of law.
Constitution was substantially changed in 2004
2004 turned Ukraine from a presidential republic to a parliamentary one. Relevant changes were enshrined in the Constitution. The weakening of the president's power was the main demand in exchange for which President Kuchma agreed to hold a second round of the presidential election. On December 8, 2004, the Verkhovna Rada of Ukraine passed Law № 2222-IV “On Amendments to the Constitution of Ukraine” by 403 votes in favor, and in a package to it there was Law on Amendments to the Law on Presidential Elections.
What has changed in the end? The passed law provided, in particular, for the formation of the government by a coalition of parliamentary factions, extending the term of office of the Verkhovna Rada to 5 years. It entered into force on January 1, 2006.
2004 edition was rejected then returned
After Viktor Yanukovych came to power in 2010, the whole story with the amendments to the Constitution turned around. On September 30, 2010, the Constitutional Court of Ukraine revoked the constitutional reforms adopted in 2004. From that date, the 1996 Constitution was in force again.
However, this did not last long, only until the victory of the Revolution of Dignity. On February 21, 2014, the Verkhovna Rada of Ukraine, even without a decision of the committee and without consulting the Constitutional Court, adopted the law № 742-VII "On the restoration of certain provisions of the Constitution of Ukraine.”
So now we are living by the Constitution 2004 again, that is, de-jure we have a strong parliamentary republic with the “secondary" politically important president. Although de-facto everything is exactly the opposite.
President Zelensky also wants to rewrite Constitution
The current authorities have no plans to return to the Constitution of 1996, but the current head of state has announced a number of changes to the Constitution while still a presidential candidate. One of his promises - lifting of parliamentary immunity - has already been fulfilled, and it is enshrined in the Constitution of Ukraine. Other changes are in lining up, in particular the widely publicized decentralization.
The president's team also draws attention to what was mentioned above - to many declarative rights that have neither a mechanism for implementation nor a mechanism for their protection. Zelensky promises to rewrite the section on the rights and freedoms of citizens to guarantee both the first and the second, and to leave to the state only “service functions”. Earlier, the Office of the President also announced the resumption of the work of the constitutional commission, which was closed and reopened under different presidents.
Almost half of Ukrainians do not know their Constitution
But what is the point of plans and changes if they do not find a response of those for whom they are implemented? According to the Center for Political and Legal Reforms, 46.6% of Ukrainians have never read the Constitution in their lives and have no idea of its content. Maybe because our Constitution does not provide for the right to happiness, as it does the U.S. Constitution? Or maybe because Ukraine does not get the concept of Gross National Happiness, which is introduced in Bhutan?
A few words about this exotic country. As part of the GNH implementation, Bhutan has carried out a series of reforms, such as a total ban on smoking, growing flowers, maintaining cities, Buddhist monasteries and ritual stupas clean.
To feel if not happiness, but at least comfort, one could really decorate a flower bed or clean the stupa. However, it is still worth starting with reading the Constitution - it is good that it is not so long. And the life today, after all, obliges us to do so.