According to the Article 85.1.1 of the Constitution, the authorities of the Verkhovna Rada of Ukraine comprise “introducing amendments to the Constitution of Ukraine within the limits and by the procedure envisaged by Chapter XIII of this Constitution”. In particular, requirements to such amendments are laid down in articles 157 and 158 of the Constitution.

Article 158.1 of the Constitution stipulates that a draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than in one year from the day of the adoption of the decision on this draft law. Article 158.2 of the Constitution envisages that within the term of its authority, the Verkhovna Rada of Ukraine shall not amend the same provisions of the Constitution twice.

The Verkhovna Rada of Ukraine did not consider the provisions of the draft law on introducing amendments to article 119 of the Constitution; also, the draft law was not the subject of voting for adoption with at least two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine in the part of articles 118, 133, 140, 141, 142 and 143 of the Constitution.

Provisions of article 85.1.29 of the Constitution remained unchanged, as the Law of Ukraine “On Introducing Amendments to the Constitution of Ukraine” no.2222-IV as of December 8, 2004 replicates the current version of the Constitution.

Amendments to articles 85, 118, 119, 133, 140, 141, 142 and 143 of the Constitution initiated by the draft law are neither oriented towards the liquidation of the independence nor to the violation of the territorial integrity of Ukraine; and therefore, they comply with requirements of article 157.1 of the Constitution of Ukraine.

The draft law deals with provisions of article 85.1.29 of the Constitution, which establish the authorities of the Verkhovna Rada of Ukraine in the sphere of the administrative and territorial structure of Ukraine. The Constitutional Court of Ukraine has already considered the said proposals and recognized them as complying with article 157 of the Constitution of Ukraine (Opinion of the Constitutional Court of Ukraine no. 1-v/2003 as of October 30, 2003).

The proposed wording of article 118 of the Constitution provides for withdrawal of rayon state administrations from the system of executive bodies; procedure for cancellation of decisions of heads of local state administrations, if they conflict with the Constitution and laws of Ukraine, other legislative acts of Ukraine; replication of the current provisions of Articles 118.4, 118.5 of the Constitution (on appointment and responsibilities of heads of local state administrations). Provisions of current articles 118.9, 118.10 of the Constitution shall be transformed into the new wording of article 118.6 of the Constitution. The new wording of article 118 of the Constitution does not cancel or restrict human and citizen’s rights and freedoms.

However, new wording of article 118.1 of the Constitution, according to which local state administrations shall represent the executive power, is disputable. The term “represent”, in contrast to the term “exercise” as used in the current wording of article 118, fails to comply with functional characteristic of local state administrations as determined by article 119 of the Fundamental Law of Ukraine.

At the same time, the Constitutional Court points out that article 95.1 of the Constitution, which deals with the budgetary system of Ukraine, preserves the notion of the territorial community, which conflicts with definition of the “community” given in the proposed wording of article 133 of the Constitution.

Proposed amendments to articles 119.4, 119.7, 133, 142.1, 142.2, 143.1 and 143.2 do not cancel or restrict human and citizen’s rights and freedoms.

Proposed amendments to article 140 of the Constitution mainly deal with new definition of a community as an administrative and territorial unit. The Constitutional Court has already considered such provisions and recognized them as complying with requirements of part one article 157 of the Constitution (Opinion of the Constitutional Court of Ukraine no. 1-v/2003 as of October 30, 2003).

The Constitutional Court of Ukraine considers that proposed article 140.1 of the Constitution reading that local self-governance shall be secured by the law, fails to comply with article 7 of the Constitution, which stipulates that local self-governance is recognized and guaranteed in Ukraine. That is, the Constitution in force gives better guaranties than the proposed amendments.

Article 140.6 of the Constitution in the new wording reads that grounds and procedure of the delegation of authorities of governmental bodies to local self-government bodies shall be established by the law. This provision fails to comply with article 143.3 of the Constitution, which provides for assignment, not delegation of certain powers of executive authorities to bodies of local self-government by law and reads that the State shall finance execution of these powers.

Proposed amendments to article 141 of the Constitution give definition of a community (village, settlement and city) as an administrative and territorial unit and bring term of office of heads of communities in compliance with the term of office of deputies of local councils. The Constitutional Court of Ukraine regards these amendments as providing no cancellation or restriction of human and citizen’s rights and freedoms.

At the same time, the Constitutional Court of Ukraine believes that the law should define mechanisms of operation of rayon state administrations, local self-government bodies until new compositions of local councils and other local self-government bodies are established in accordance with the Law.

Thus, the Constitutional Court of Ukraine recognized the draft law of Ukraine “On Introducing Amendments to the Constitution of Ukraine” (no. 3207-1), which suggests to amend articles 85.1.29, 118, 119.4, 119.7, 133, 140, 141.2, 141.4, 142.1, 142.2, 143.1, 143.2 of the Constitution as complying with the requirements of articles 157 and 158 of the Constitution. The Law shall take effect after the regular elections to the local councils of the fifth convocation in March 2006.

Any proposed amendments must come from the parliament. Ukraine’s constitution can not be amended by the referendum alone short of a unconstitutional political coup.

Chapter XIII

Introducing Amendments to the Constitution of Ukraine

Article 154

A draft law on introducing amendments to the Constitution of Ukraine may be submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no fewer People’s Deputies of Ukraine than one-third of the constitutional composition of the Verkhovna Rada of Ukraine.

Article 155

A draft law on introducing amendments to the Constitution of Ukraine, with the exception of Chapter I — “General Principles,” Chapter III — “Elections. Referendum,” and Chapter XIII — “Introducing Amendments to the Constitution of Ukraine,” previously adopted by the majority of the constitutional composition of the Verkhovna Rada of Ukraine, is deemed to be adopted, if at the next regular session of the Verkhovna Rada of Ukraine, no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine have voted in favour thereof.

Article 156

A draft law on introducing amendments to Chapter I — “General Principles,” Chapter III — “Elections. Referendum,” and Chapter XIII — “Introducing Amendments to the Constitution of Ukraine,” is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and on the condition that it is adopted by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and is approved by an All-Ukrainian referendum designated by the President of Ukraine.

The repeat submission of a draft law on introducing amendments to Chapters I, III and XIII of this Constitution on one and the same issue is possible only to the Verkhovna Rada of Ukraine of the next convocation.

Article 157

The Constitution of Ukraine shall not be amended, if the amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine.

The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency.

Article 158

The draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than one year from the day of the adoption of the decision on this draft law.

Within the term of its authority, the Verkhovna Rada of Ukraine shall not amend twice the same provisions of the Constitution.

Article 159

A draft law on introducing amendments to the Constitution of Ukraine is considered by the Verkhovna Rada of Ukraine upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution.

“The Constitution submitted by the President of Ukraine to the Verkhovna Rada of Ukraine on 13 March 2009. The text of the draft appears in document CDL(2009)068. It was obviously translated hastily and the text is often scarcely comprehensible. Some remarks made in this Opinion may be due to problems of translation.”

“Under the terms of Article 155 of the current Constitution any constitutional reform has to be approved by a two-thirds majority in the Verkhovna Rada, amendments to Chapters I, III and XIII of the Constitution in addition have to be approved by a referendum. The present draft is the proposal of a new version of the Constitution, which- while often similar to the present text- contains amendments to all Chapters. It thus requires for its adoption both the two-thirds majority of the constitutional composition of the Verkhovna Rada and approval by referendum.”

The proposed amendments to Ukraine’s Constitution by the President of Ukraine

1. 1. significantly alters the balance of power and constitutional representation in Ukraine;
2. 2. seeks to establish Ukraine as a semi Presidential system of governance;
3. 3. the proposed creation of a Senatorial bicameral Parliament establishes Ukraine as a federation of disproportionate administrative regions and as such is undemocratic in its design and implementation.

The representational model for the proposed Senate does not meet current European standards or democratic values.
The disparity between electorates with the same level of representation denies Ukraine the right of one vote one value.

The disparity in representation is further exacerbated as a result of the proposed use of first-past-the-post method of voting in electing Senate candidates.

The three two-year staggered Senatorial terms of office further diminishes the representational model which in turn undermines public confidence in the authority and democratic composition of the proposed Senate

The President is granted a Senatorial position for life even if he/she has been voted out of office and not elected to a second term;

1. 4. there is no provision for the purouging of the Senate or double dissolutions of both houses of parliament;
2. 5. diminishes and restricts the rights and authority of the Parliament to hold parliamentary inquiries;
3. 6. does not address a number of issues already identified by the Venice Commission in review of the V Shapoval draft proposals;
4. 7. removes a number of significant checks and balances against the misuse and abuse of Presidential authority. Most notably the changes to the impeachment procedures or the President; The President can only be impeached by the Senate if the President has intentionally committed a crime.The President would not be held accountable or subject to impeachment for breaches of oath or Ukraine’s Constitution as is the case in the grounds for dismissal of Judges;
5. 8. the President appoints and dismisses 100% of Ukraine’s Constitutional Court Judges;
6. 9. fails to address a number of significant issues and points of conflict in the current constitution;

10. does not provide for stable or democratic governance

In a desperate attempt to regain relevance Yushchenko wants his version of the constitution to be put to referendum at the next Presidential election in which he hopes to control the agenda.

The devil is in the detail and there is no way the Constitution, without wide support, can be properly debated and understood. The time to debate reform has passed and most certainly should not be the main focus of the Presidential campaign.

The issues are complicated and require proper consideration as to the alternatives and impacts of the proposed changes. They can not and should not be considered as part of the Presidential election campaign as much as Yushchenko would like to have his proposed reforms the focus of the campaign.

Which ever candidate advocates one way or the other support or disagreement on Yushchenko’s model they will be judged not on the real issues confronting Ukraine but on the notion of President versus Parliament. What would happen if Yushchenko complied with the ruling of the courts and held a referendum during the Presidential election on the question of Ukraine’s membership of NATO?

Power corrupts and absolute power corrupts absolutely.

Under Yushchenko’s proposed Constitutional reforms the President would have absolute authority and control over Ukraine’s courts, the appointment of the government and even the parliament without proper checks and balances.

The President would have the right to dismiss Ukraine’s Parliament at any time if its not to his liking. Whilst parliamentary immunity is removed, immunity for Judges and the President remains in tack with the President’s immunity made absolute by making it impossible to impeach the President except only on conviction resulting from a deliberate intention of committing a crime – Breaches of oath and Ukraine’s Constitution no longer are taken into consideration as grounds for the President’s impeachment. Further more the only body that can impeach the President is Yushchenko’s proposed Senate of regions.

The structure of the Senate, based around Ukraine’s existing oblasts, would seriously divide Ukraine stretching it to breaking point by giving an unfair representational bias towards Western Ukrainian regions at the expense of Ukraine’s more populous Eastern and Southern regions. This disproportional representation would be a recipe for disaster fueling disunity and distrust exacerbating the tensions that already exist.

Yushchenko’s Senate will require national elections with one third of the Senate facing reelection every two years, along with the associated costs in holding an election. Senators will be elected by a undemocratic outdated first-past-the-post voting system with the same group of electors, who have the highest vote, electing all three regional representatives. The majority (50% or more) will go unrepresented. (Eg in 2007 in Zakapattia oblast Yushchenko’s Our Ukraine secured less then 34% of the regions votes but was still the highest polling party and as such would win all three Senate positions with only 152,000 votes. Whilst in Donetsk Party of Regions with over 1.7 Million votes would also only elect three senators)

What’s more Yushchenko seeks to grant himself a senatorial position for life, even if he is voted out of office he still will have a seat and salary in Ukraine’s Senate – For life.

When making an assessment of any proposed constitutional reform you need to ask yourself what would the effect of these changes be if the person you do not support is elected to office and holds absolute power without checks and balances to limit abuse of Presidential authority.

At a direct cost of over 1.5 billion hryvina’s plus an additional 1.5 billion in candidates’ campaign costs its a shame that Ukraine did not support a parliamentary appointment or adopt a preferential voting system.

Yushchenko’s proposed constitutional reforms are not what I would call democratic or worthy of support. “Wrong direction backward step”
Principles of a good, workable and democratic representative Parliamentary model

1. Ukraine MUST become a full parliamentary democracy in line with other European states.
2. Ukraine would be best adopting a unicameral parliament with multi-member local electorates.
3. Each electorate should be equal (within +/- 5%) in the number of constituents.
4. The system of election should be “Singe Transferable Vote” – Preferential Proportional Representation.
5. The method of counting the vote should be by the Meek’s method.
6. Each electorate MUST have the same number of representatives elected.
7. It is essential that each electorate is equal in representation
8. Each electorate should elect either five (5), seven (7) or nine (9) members of parliament (Rada).
9. The quota for election would be 16.67%, 12.50% or 10.00% respectively.
10. The Head of State should be appointed by a constitutional majority of 60% of the parliament as is the case in Moldova and Greece.

“Where there is no counsel the people fall but in the multitude of counsellors there is safety”

The Prime-minister and government ministers to be elected from the Parliamentary governing coalition along the lines of the British Westminster system or other European Parliaments

The role of Ukraine’s head of state should be a unifying and supportive ceremonial role with limited administrative power.
Analysis indicates that Ukraine would be better represented by the above model.

The above model is by far more preferable and more democratic then the model proposed by Yushchenko. It takes the best of all systems. Ukraine would the leader in democratic representation.

Power must be held in the hands of the peoples elected representative parliament.
It MUST scrap the two round “first past the post voting system” and adopt a preferential ballot.