The most difficult issue with constitutional reform is division of powers – professor at Central European University


Kyiv, 20 October, 2015. When designing a constitution it is important to find an effective structure of government for a given country, said Viktor Osyatynski, a professor at Central European University (CEU), at a press briefing at Ukraine Crisis Media Centre. “You might have very complicated problems around division of power between the President and the parliament and, first of all, between the President and the government. This is a major conflict,”Prof. Osytyanski stated. He pointed out that the clearest world example of such a context is monarchy, where there is a clear-cut division of competencies and where the head of the government is responsible for practically everything. In the case of Ukraine, things are not that simple. The CEU professor recommended that while designing a constitution attention should be given to three major issues: how to curb power, how power is organised and what the Constitution states.

In Osytyanski’s opinion, having a draft constitution ready, it is not even necessary to read all of it. It will be enough to read just some articles to understand the foundations of the document. “If you see that parliament can change the constitution by a majority vote it is not a constitution but a statute. If in a chapter on human rights you read that human rights can be abridged, then again it is not a constitution but a statute,” the professor stated. “It is important to understand to which extent a constitution can prevent a civil war, if a court appeal can be filed against the constitution, if the president or parliament can abolish any clauses of constitutional rights.” According to him, these issues are the essence of what a constitution’s draft sets out. Nevertheless, in Ukraine there is still lack of a comprehensive understanding on constitutional reform. For instance, state institutions are testing their forces and there is an unfolding conflict between them about this issue. Prof. Osytyianski underlined that the process of constitution drafting should not be ruinous. He suggested that attention be paid to his book “Your Constitution”, in which he describes his vision of constitutional processes, taking Poland as an example. He commented that in that country the constitution creation process lasted for nine years – from 1989 to 1997, that there was strong discussion and a referendum was held. At last, a constitution which is based on moral values was established.

Talking about court reform, Viktor Osytyanski has pointed out that its main priorities should be court proceedings, human rights protection, elaboration of the rule of law mechanism and its implementation in everyday practice. Mr. Osytyanski commented “if courts are corrupt, one should not expect any significant investments in Ukraine. Because in that case any capital and investments will not be protected and will not feel safe in such a country”. Hence, given such conditions one should not count on economic growth. Mr. Osytyanski said that according to European standards, judges are appointed for their lifetimes. However, this cannot apply to the Ukrainian reality as such a mechanism will only become a basis for corruption. Therefore, in his opinion, the Venice Commission should soften the standards for Ukraine and take into account the country’s transitional period.

Roman Kubiida, deputy head of the Centre for Political and Legislative Reforms, thinks that the main discussion in court reform concerns the issue of renovating judicial staff. For instance, the Venice Commission has proposed re-qualification of judges, which judges themselves do not oppose since they do not feel endangered with regard to keeping their offices. “However, society demands more radical steps, such as establishment of a mechanism for re-appointing of judges. That is to say, to make all judicial offices subject to open competition,” Roman Kuibida stated. Hence, not only old personnel, but also the experts from the outside will be able to enter the new judiciary.

Besides, it is crucial to free the judicial system from political influence. “The draft constitution committee leaves possibilities for exercising power on courts. In particular, focus has been shifted form the parliament to the President. The President, de facto, will be able to take final decisions on the career of a judge,” he stressed. Roman Kuibida has said that the reform package proposes its own vision – to preclude any politician from deciding upon careers of judges. According to the deputy head of the Centre for Political and Legislative Reforms, on October 23 the Venice Commission should study the project of reform drafted by the constitutional commission as well as an alternative Reanimations Package of Reforms project in terms of revitalizing the judiciary. The most heated discussion is now taking place around staffing issues. And whilst carrying out the reform it is important not to revive political dependence and “complaisance” of judges, the expert underlined.