Ukraine needs a ‘2004 plus’ constitution

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of PLC.

The present constitutional debate in Ukraine offers the chance for a basic law of the country based on the 2004 constitution, but upgraded to EU standards, opening the way to establish an EU-like judiciary in the country, writes Ina Kirsch.

Ina Kirsch is managing director of the European Centre for a Modern Ukraine.

The pro-European Union movement which began last November is Ukraine's largest since the fight for independence from the Soviet Union in 1991. The people who took to the streets were not campaigning for political change, so much as for a clear commitment to European values, new laws and a more democratic way of life.

The protracted crisis serves as a reminder for the need of democratic change in Ukraine, giving protestors and politicians a renewed sense of purpose. But the solution put forward by the opposition goes only half way to securing the European and democratic future that Ukraine needs and deserves.

A recent survey of more than 1,000 Ukrainians by the Kyiv Institute of Sociology found that the three main reasons behind mass protests in December were indeed repressions (70%), the halt on the Association Agreement with the EU (54%), and the desire to change life in the country (50%). Those surveyed were from all areas of the country, meaning that while Ukrainian’s in the East and West are politically opposed, they are united in their desire to eradicate corruption, bring judicial reform and commit to a more democratic, European way of life.

While the people are united in purpose, Ukraine’s political parties are at an impasse. Today’s political deadlock is characterised by a deep mistrust of and within political forces. The answer to this deadlock could lie, in part, in a reform of Ukraine’s constitutional process, reverting to the 2004 text. This would limit the powers of the president which were obtained in 2010 following a Constitutional Court ruling. 

But this is not enough. Indeed, the Venice Commission in 2005 was highly critical of the 2004 Constitution which maintained the already-considerable powers of the prosecution and left it accountable to no one. The underlying reasons behind the recent protests need to be addressed with reforms that go beyond the 2004 Constitution. Public discontent will continue to snowball if domestic needs are not met and judicial reform in line with EU standards is not implemented.

The EU understands and agrees with the need for reform but is reluctant to support the calls for the reinstatement of the 2004 constitution in full. At the last European Parliament Foreign Affairs Committee meeting, EU High Representative Catherine Ashton spoke in favour of “not just the 2004 constitution but what we call ’2004 plus’ to take out elements of the 2004 constitution, for example those that give the prosecutor’s office great powers”.

Debates regarding the powers of the prosecution became a core issue in Ukraine’s preparation for the signing of the Association Agreement, with judicial reforms amongst the main requirements of the so-called “Füle’s list” [Štefan Füle is the commissioner for neighbourhood policy]. Building a prosecution office in line with European standards, together with judicial reform, would support a more democratic rule of law and encourage desperately needed economic investment.

In November 2013, the Parliament of Ukraine adopted the Law “On Prosecution” in the first reading. This law finally eliminated the Stalinist general supervision powers which over time had become a tool to interfere with the private activities of organizations and citizens.  Unfortunately, with the preparation of the Association Agreement halted and protests breaking out, this reform which was supposed to be the building block of a new European Ukraine, was deprioritised and still awaits its second reading in Parliament.

The Law amending the Constitution to enhance the independence of the judiciary also awaits its second reading. This law was drafted to lift the “probation period” under which judges must serve an obligatory, five-year probationary period before being re-appointed to the bench for life. This probation period is seen as an instrument for influencing the court since young judges have less independence from political forces. The most prominent case of alleged abuse of the probationary provision was that of Yulia Tymoshenko who was sentenced by young judge who was still waiting for his permanent nomination.  This Law was also on the “Füle’s list” and progress had been made in preparation for signing the Association Agreement.

It is important to complete these two legislative acts, as all political forces and the President now agree on the need to revise the Constitution. Since both the Prosecution and Judiciary are regulated by the Constitution, Ukraine should reform their powers in line with the principles agreed with the Venice Commission and the EU.

Constitutional reform will be a major step forward in addressing the concerns of the Ukrainian people and committing to lasting change. But the immediate return to the 2004 Constitution does not solve the fundamental problem. While it may bring reassurance in the short-term, more is needed to secure Ukraine’s European future.

“2004 plus” is an opportunity for Ukraine to establish an EU-like judiciary in the basic law of Ukraine. This is the first step.