Ukraine needs a US Constitution without social obligations

Changes to the Constitution of 2005 is unbalanced power in Ukraine, and social commitments in the Basic Law made it a declarative, said a member of the Constitutional Commission, an expert of the Ukrainian Helsinki Human Rights Union Vsevolod Rechitsa. He is sure that the code is similar to code Ukrainians nation of Americans, so Ukraine need as much as possible similar to the US Constitution

– Do you think there are undermining the state system of frequent changes to the Constitution of Ukraine?

– First, a little history. When developed in 1996 the Constitution of the year, the first draft was ready in 1992. Then it was designed in the spirit of the almost “pure presidential republic”, I would say, Americanized. In the first version did not even have the full Cabinet, the function of chief executive immediately took on the president. This was followed by the second working group, which project and contributed to the Parliament 20 years ago. Elected officials have worked on it seriously and the Basic Law has penetrated many socialist ideas at its core. Probably due to the influence of communists and socialists, including Aleksandra Moroza, who was co-chairman of the Constitutional Commission. In addition, the project vanished status of the President as the head of the executive branch and a bicameral parliament. Private property was recognized,

The result is a presidential republic, where the Prime Minister was actually Administrative prime minister (there is such a form in the modern constitutionalism) under the President. In fact the major government decisions were based on the President’s Administration.

For me, the 1996 Constitution was clearly in transition. As already held at the time, Professor Volodymyr Shapoval, it was not the Constitution of civil society and the state. Although the US Constitution, by contrast, it was originally designed to protect society from the state.

Changes to the Constitution in 2004 were largely illogical: taking away powers from the President, he left no popular election and control of the executive branch on the ground, which made the head of state is politically strong.

As a result, in 2005, there was something even worse – into a parliamentary republic, the President has kept a significant part of the executive branch (appoints the heads of the Ministry of Defense and Ministry of Foreign Affairs, SBU, obl- district administrations).

In this situation, any independent Cabinet policy can easily be blocked by the president’s power. The feud with Tymoshenko Yushchenko is a good example. This was made possible largely thanks to the failure of the constitutional scheme, in which the executive has turned biceps.

– That is to say that the imbalance in the power began after the Constitution of 2005?

– Yes. The first Constitution was created under a presidential republic. And then it changed some things, violating the primary logic of subordination and political norms. This usually leads to a state of imbalance. So I think a constitutional reform in 2005 is bad, but the Constitutional Court decision in 2010, when he returned to the Basic Law of 1996, correct, “good.” While many lawyers believe a return to the first edition of the Constitution of the restoration of authoritarianism, and the Constitutional Court judge, as they offer, to be judged a criminal court.

– You are the enemy to social obligations were recorded in the Constitution. Why?

– We originally socialist constitution, and according to the canons of constitutionalism such should not be. These organic constitutions are created only by accelerating and simplifying social transactions, freedom and the market, that is, by individualism, private property, freedom of speech unlimited – capitalism. For the constitution it is important that there was a market, free individual, civil society, the separation of powers and human rights. If not, then there is no constitution itself.

Constitution created only under capitalism.

But the real human rights of the first generation (the so-called “negative” rights) are destroyed by introducing “positive human rights”, which are purely socialist invention – the Stalinist Constitution of 1936 for the first time on a large scale (precedents in the early twentieth century (Mexico, Germany) but minor) introduced free health care, education, the right to social security … and now, the COP is a big problem with these rights: the state budget there is no money in the near future will not, but the Constitution requires guaranteeing complimentary Noah medicine, the right to an adequate standard of living, the right to housing, etc.

Hungary is partially out of this situation thinking that social rights must be provided within the budget. Canada in the late ’80s in general withdrawn from the Basic Law of socio-economic rights. In the countries of old democracy such social rights are almost not mentioned in the Constitution. These rights imply the validity of the distribution (the state should take away from those who have money, and give to those who do not). And this is a classic case of possible non-market economy. That is, when the value of state property is close to 70-80%. If you take away money of modern capitalists, in Ukrainian conditions, they simply leave the country.

The paradox of the situation is that the social rights of the Ukrainian Constitution, 3-4 times more than in the Basic Law of the western countries, but life is 10 times worse. If you have to write the social rights in the Constitution, then their performance falls on the state budget, will accordingly seek money anywhere and from anyone. The result will be “blackmailing the government,” which no one among the people will not like.

– What is now to be the Constitution – 1996 or 2004?

– Меня Секретариат Президента Виктора Ющенко в 2007 году попросил написать модельный (не рассчитанный на прямое применение) проект Конституции. Я считаю, что мой вариант Основного закона подходит и для нынешней Украины. Мой проект частично напоминает Конституцию 1996 года, но с двухпалатным парламентом, то есть, он многим напоминает американскую систему. У меня Президент — глава исполнительной власти, правительство формируется Президентом с согласия Верхней палаты парламента (Палата регионов). Премьер-министр де-факто административный. Нижняя палата имеет стратегический ресурс — госбюджет. Граждане имеют неограниченную свободу слова и право на оружие, как в США.

The Senate is needed for two main purposes: the senators will be able to deter bad president, or vice versa to maintain a head of state in difficult situations, so that he is not left alone with his advisers. They need to create a pyramid of power, as the president is now too divorced from both the MPs who represent the people, and from the regional elites, which are generally the senators.

– Why is the American model of the constitution should come Ukraine?

– When the US Constitution was accepted, there is a population of 3 million people, of which 100 thousand had the right to vote.. That is, the political class was narrow. The US Constitution took people mostly with European mentality, I would say, with the English. It is believed that it was England created constitutionalism as an idea, as a philosophical concept. And Americans – a largely former British – it is written in its constitution.

Many point out that the American model of the constitution does not work in Africa and Latin America. Right, so these continents – not Europe. We come under the American (in fact, Western European, English) mentality.

The American Constitution is built on the idea of ​​a very strong civil society, which is not like the state and do not trust him. As a result, for example, the right to bear arms is seen as a political right, that is, as the right to arms against the government. also has a tradition of armed civil society in Ukraine. Zaporizhzhya Sich, which in essence was anti-state structure – is a classic example. The mentality of the Cossacks and the American settlers were similar. And then, there were people who did not trust the authorities and all wanted to do exclusively on its own.

I believe that the Ukrainian nation code (a set of deep organic rules by which people live) coincides with the US to a great extent.

It is no accident Hrushevsky, as head of the Central Council, said that we need to learn democracy in the United States and Technology – the Germans.

The American model of the constitution, we would fit, it only needs to clear for all language to write mechanisms. Citizens need to understand who is responsible for what in our country.

– And how do it so happened that the Secretariat of the President Yushchenko appealed to you to write a new constitution?

– In 1994, I took a small draft of the Basic Law by almost 15-20 pages. She was very amerikanisticheskaya. The staff of the Secretariat Yushchenko somewhere found this booklet, and they liked it. They asked permission to take my project to work. I agreed, and after a couple of months, some of them called and said that it would be good to me to take this job completely over. At their request, I did have a great draft Constitution.

From the latter: at the end of 2015 Evgeniy Zaharov wrote to me that some of the politicians in the President surrounded by my interest in the draft constitution. I understand that they have the constitutional project is still “alive”.

– Why are you in the past year, while in the composition of the Constitutional Commission, is not supported by the first package of amendments to the Constitution (decentralization)?

– I believe that it was done in hardware in the hardware interests. For example, I did not agree with the proposed Article 118 – prefects heads the executive branch. In this way it does not focus on “the state executive power.” That is, in their hands once again be and local self-government! Given that the prefects subordinate to the President, his influence on the processes in the regions are likely to intensify.

In addition the project has a lot of technical and legal flaws. Thus, the concept of “region, region, district.” In this region, and the region – the same thing. It also states that the Verkhovna Rada changes the boundaries of the regions and districts. And then what Parliament does with the Crimea, which is considered the region? That is, the Verkhovna Rada of the ARC can not change the border?

I also do not agree with the complete destruction of areas in the cities, which are called progressive. Although the major European cities have divided into districts, which are mini-parliaments of 30-50 people. As for the zoning for the whole country, we get areas that are weaker than others in economic terms in the 100-150 times. Indeed, in some areas will include cities like Kharkiv and Dnipro, and in other – only a relatively small settlements. Although the principle of administrative-territorial division provides the same order that the unit should be about equal in their potential.

I think that for the decentralization reform hidden centralization and “optimization”, for which there is an attempt to save public funds.

Interviewed by Sergey Chepinska

Sourse, 28/06/2016