Andriy Magera is a distinguished lawyer of Ukraine. From June 2007 to September 20, 2018, he served as deputy chairman of the Central Election Commission of Ukraine, and on November 24, 2004, he played one of the key roles in the recent history of Ukraine when, as a member of the Central Election Commission, he refused to sign the protocol with the official results of the Ukrainian presidential election, which declared the pro-government candidate Viktor Yanukovych the winner, as “not reflecting the will of the Ukrainian people.”
Since then, Andriy Magera has gained authority as one of the most professional experts in the field of constitutional law, and that is why he was invited by the Chairman of the Board of the Ukrainian Crisis Media Center, Extraordinary and Plenipotentiary Ambassador Valeriy Chaly, to participate in the special project Geopolitical Dialogues with Valeriy Chaly. The topics of the conversation were united by the phrase “Complex issues,” as recent events have tied geopolitics and the fundamental principles of Ukrainian statehood into an intricate knot.
Direct negotiations
Valeriy Chaly began with the legal possibility of a meeting between the presidents of Ukraine and Russia. There is a decree signed as a decision of the National Security and Defense Council by Ukrainian President Volodymyr Zelensky prohibiting such meetings, but the Ukrainian president has publicly stated that he is not prohibited from doing so. So, are there really such restrictions on the president, or are there none, and how can this situation be resolved?
For Andriy Magera, the position is quite clear. According to Article 102 of the Constitution of Ukraine, the president is the head of state and acts on its behalf. The president represents Ukraine in relations with other states. These are the functions of the President of Ukraine. Functions are the main principles, the main foundations of the status of a particular official. They are manifested through the powers of the head of state, the President of Ukraine. These powers are set out in Article 106 of the Constitution.
Paragraphs 4 and 5 of Article 106 concern both the powers of the president to appoint ambassadors or representatives of Ukraine to foreign states or international organizations, and the powers of the president to negotiate and conclude international treaties.
“I cannot imagine any legal act that could suspend the provisions of the Constitution and limit the powers of the president. This cannot be done by a presidential decree, nor can it be done by a law of Ukraine. That is because the law must comply with the Constitution of Ukraine. In my opinion, this decree should still be repealed. That would be the ideal situation,” the lawyer replied.
Territorial issues
According to the head of the UCMC board, there can be no exchange of Ukrainian territories. But can there be a question of territorial concessions? What are the right tools and language to use in such a case? What could this mean for Ukraine under the Constitution?
“If we take the provisions of Articles 2, 73, and 157 of the basic law, I think it is not difficult to conclude that we are talking about changes to the territory of Ukraine, but only in the direction of increasing Ukraine’s territory. Not in the direction of reducing it, because that would be a violation of territorial integrity. Of course, we are not talking about cases of annexation of foreign territories, like what Russia is doing. We are talking about cases of annexation to the territory of Ukraine of territories of other states or parts of territories of other states, but in accordance with the principles and norms of international law,” explained Andriy Magera.
Valeriy Chaly asked whether it was realistic to change all these articles on territorial issues.
The guest noted that it would not be possible to change everything they wanted on territorial issues while martial law was in force. After martial law is lifted, a constitutional procedure could be launched, but where a referendum is required, 150 signatures from deputies on the bill are not enough. There must be 300, no less than 300. “If we are talking about, for example, removing a list of regions from the Constitution, hypothetically this is possible, it would not contradict Article 157 on the violation of territorial integrity. Why? Because the state can change its territorial division in another way – for example, from regions to counties. But the issue here is that Crimea is mentioned not only in Article 133 of the Constitution, and not only in Chapter 9 of the Constitution in general. It has a separate Chapter 10, it has many other chapters, it is mentioned everywhere. So it’s not that simple,” Andriy Magera emphasized.
On language
The Ukrainian Constitution stipulates the special status of the Russian language. What does this mean?
As soon as Ukraine declared independence, Soviet laws ceased to apply on its territory. In the 1978 Constitution of Ukraine, which was in force for five years after Ukraine’s Declaration of Independence in 1991, Ukrainian was always the only official language. From 1991 to 1992, Russian had the status of a language of interethnic communication of the USSR on the territory of Ukraine, as stated in Article 73. According to the same Constitution, laws had to be published in two languages, Ukrainian and Russian.
Since 1996, when the current Constitution was adopted, Russian is mentioned only once, in Article 10, Part 3. It is mentioned after a comma, along with other languages of national minorities. And it has exactly the same legal status. In what sphere? Firstly, in the sphere of free development. Secondly, use and, thirdly, protection. So what does free development mean? Development does not mean functioning in the spheres of public life. Development means that we might want to speak Russian. If we are good old friends, buddies, and so on, we can even speak Esperanto. No one should forbid us from doing so. But if I go to a pharmacy, if I go to a store, if I go to public transport, and so on, I must know the state language. And in 2018, the Constitutional Court of Ukraine made a very important decision, stating that the state language in Ukraine is equal to the official language. These are synonymous words.
“Based on the 2018 decision of the Constitutional Court, there can be no official language in Ukraine. Why? Because this is an encroachment on the state language, and encroachment on the state language is an encroachment on the foundations of the constitutional order. This is also stated in the decision of the Constitutional Court. And the Russian language cannot have a worse status or a better status than the languages of other national minorities in Ukraine. If Russia demands special status for it, this means that we are creating different categories for national minorities. This would be a gross violation of Article 24 of the Constitution of Ukraine, a gross violation of international covenants on civil and political rights, universal declarations of human rights, and the 1950 European Convention, which prohibits discrimination against people on any grounds. Russia, in fact, wants to bring us under this. And therefore, I think that we have very good and strong arguments here,” the guest concluded.
The issue of neutrality
Valeriy Chaly asked the expert’s opinion on whether it is possible to quickly enshrine neutrality in our legislation today.
“No, it would not be possible to do this quickly. This is because the powers of the president and the Verkhovna Rada include the implementation of a strategic course towards membership, in particular in NATO. And even in the functions of the president, this is recorded in the second article, not only in the powers, but also in the functions, that is, these are the main tasks of the president. He must do what is written in the Constitution,” replied the lawyer.
How can this be implemented? Only after the end of martial law.
“Hypothetically, if someone even wanted to implement this after the end of martial law, the path would be quite complicated—a bill in the Verkhovna Rada, then the Constitutional Court for an opinion, two sessions, the last session, 300 votes. Is this realistic? I think it’s unrealistic,” added Andriy Magera.
In conclusion, Valeriy Chaly touched upon the significance of the Constitution of Ukraine as a social contract with society and the ability of its active part to protect its rights.
“Perhaps we even underestimate the level of preparedness of our society. The Language Maidan in its time, and the fact that students quickly took to the streets now, showed that people are well versed in such details and are very attentive to all the processes that are taking place. And if anyone, even among our partners, thinks that a general agreement somewhere in the Oval Office or in Budapest will be enough, they are very much mistaken. What is a constitution? It is a social contract. A contract with whom? With the people. Therefore, Ukraine has demonstrated that if such a contract is violated, then neither Trump, nor Biden, nor European partners, with all due respect, will impose their point of view,” the diplomat emphasized.