At The Threshold: The Implications of Ukraine's New Constitution

The road has not been an easy or a clear one. In 1991, Ukraine emerged from 350 years of colonial subjugation. At the time, it possessed few attributes of statehood. It did not inherit any of the apparatus of modem government. Its very identity as a nation had been ruthlessly, and often brutally, repressed by its Tsarist, then Soviet, overlords. Western perception of Ukraine in those early years of independence was overwhelmingly negative. Ukraine was perceived as a renegade nuclear power, torn by ethnic strife, regional separatism, and economic collapse. The chauvinistic and distorted article about Ukraine in a recent issue of Forbes magazine, illustrates that some quarters are still desperate to undermine the very credibility of Ukraine as a viable independent and democratic state.

Ukraine has withstood all of the misgivings about its emerging democracy. Indeed, although it may be claimed that Ukraine should have done more sooner, developments in Ukraine today must be viewed positively. Real, tangible, and dynamic transformations are occurring throughout the country. On the political front, the success of national integration has proceeded beyond anyone's anticipation. Ukraine has held two free and democratic parliamentary and presidential elections unmarred by violent disruptions and unconstitutional pressures. Ukraine has taken its rightful place in the family of European nations as a full member of the Council of Europe. It has secured peace on its borders and pursues normal relations with all of its neighbours. Ukraine has successfully demonstrated that it can offer its citizens ethnic harmony, and has repelled the efforts to sow the seeds of civil discord. In an unprecedented step, Ukraine became the first country in the world to renounce and relinquish its nuclear capability. Since then, Ukraine has pursued a civilised and widely acclaimed nuclear disarmament policy. It is a full participant in world forums, and plays an important role in the United Nations peacekeeping mission in Bosnia. Ukraine now participates in world history as an independent and strategic player. It is being judged favourably according to internationally accepted norms and standards of behaviour. As President Kuchma remarked during recent celebrations commemorating the 5th anniversary of Ukraine's independence: "In five years, in conditions far from favourable, all of the attributes of statehood have been attained."

Until recently, economic reform proceeded at a frustratingly slow pace. Following independence, Ukraine was unable to convert its industries from military to civilian production, to adjust to higher energy prices, to create a market system for international trade, and to create a market-based financial system. As a result, Ukraine experienced sharp declines in production, financial chaos, and widespread black market activity. It became clear that unless the transition to democracy was matched by a transition to prosperity, the threat of social instability would be always present in society.

The government of Ukraine has taken serious and significant steps in the past year to begin to reverse these tendencies. As a result, the Ukraine economy is embarking on an upward trend: we have achieved relative price stability and have curbed hyperinflation; we are implementing a stable and rational tax regime; Ukraine's new currency, the hryvnia (part of which was printed in Canada), was successfully introduced earlier this month; a new foreign investment law has been adopted to stimulate investment in the Ukrainian economy; and vast structural reforms are taking place in key sectors such as power production. While able to attract only $750 million of direct foreign investment between 1991 and 1995, Ukraine saw a surge in this type of investment in 1996. In the first six months of this year, Ukraine received $250 million worth of direct investment. Transactions at least equivalent to this amount are under negotiation. Similarly, although slow to start, the privatisation of small- and medium-size enterprises has been virtually completed. Indeed, more state-owned enterprises have been privatised in the first six months of 1996 than in the previous four years.

While much still needs to be done, particularly in the area of agriculture, experts forecast that Ukraine will achieve one-per-cent growth of GNF next year for the first time since independence. Under current policies, some western economists believe that Ukraine could, within the next few years, conceivably achieve seven-per-cent or eight-per-cent growth per year, particularly if Ukraine continues to stimulate foreign investment, and achieves gains in trade.

On a societal level, Ukrainians today experience personal freedom to an extent unprecedented in their often tortured history. Freedom of expression flourishes as the psychology of fear which characterised Soviet rule has evaporated. Ukraine is witnessing a renaissance in literature, religion and music. Indeed, since independence, the dynamic of the relationship between the individual and the state is being questioned, reformulated and restricted. During the Independence Day celebrations, President Kuchma remarked: "The priorities of future policies must follow in this order; individual family, society and state."

Without a doubt, Ukraine's crowning achievement in this process of transition and transformation, has been the adoption of a new constitution. It is a defining moment in Ukraine's struggle for statehood. For the first time in its history, Ukraine has a constitution which expressly entrenches the principle of the supremacy of the Rule of Law as the foundation of the Ukrainian state. The whole panoply of emerging civil, social, and economic relationships in Ukrainian society may now develop on a stable juridical basis. For example, by enshrining the right to private ownership of property in the Constitution, the onus rests with the state to pass laws which clearly define and protect such rights. Further, the Constitution guarantees the independence of judges to determine the rights of the parties before them, free of external influences. This will facilitate confidence in the sanctity of the validity and enforceability of contractual relationships. As a result, the market should be stimulated to operate more effectively and efficiently.

Judicial independence will give effect to the guarantees of basic human rights and freedoms set out in the Constitution. Thus, the legal vacuum in which the exercise of individual freedom has existed since the collapse of the old power structure has been filled. The Constitution also promotes social and ethnic harmony by guaranteeing the use and promotion of minority languages in Ukraine, including Russian. Further, it diffuses regional tensions by setting fair and clear parameters on Crimean autonomy and local self-government. Furthermore, the clear separation of authority between the executive and the legislative branches of government resolves a seemingly intractable issue which proved so debilitating to Ukraine's reform process.

Constitution--Implications for Legal Reform

In this context, the Constitution legitimises and promotes the process of legal reform in Ukraine. The absence of an effective legal infrastructure to support the transformations taking place in Ukraine has been the essential missing ingredient to securing their long-term sustainability. Indeed, I have seen the impetus for legal reform significantly accelerate since the adoption of the Constitution.

My objective as Minister of Justice is to pursue programmes in the areas of judicial reform, the restructuring of the functions of the Ministry, reform of legal professions and the establishment of an independent bar, the improvement of the quality of the drafting of laws, and legal education. We are supporting key economic initiatives, such as bankruptcy and land registration reform. My Ministry is also working to bring Ukraine's laws into conformity with the European Convention on Human Rights. We have just submitted to the President the completed draft of a new Civil Code for Ukraine, which should be put before Parliament in the current session. The Ministry's responsibilities have been compounded by a flood of new directives to bring Ukraine's legislation into conformity with the Constitution. We are expected to complete this task by December 1 of this year!

Needless to say, the Ministry, historically an irrelevant branch of government, is overwhelmed by this turn of events. The adoption of the Constitution, while a joyous event, has stretched to the maximum the abilities of the Ministry of Justice to cope with its new and existing obligations. We have been fortunate, however, to have partners to assist us with the legal reform process. Canada, I am proud to say, has been one of Ukraine's most significant, generous and enduring partners in the field of legal reform. I am grateful to the federal Department of Justice for its guidance and efforts in helping our Ministry of Justice understand how to restructure our operations. The Office of the Commissioner for Federal Judicial Affairs has assisted us with the development and implementation of a comprehensive and ambitious programme to reform the Ukrainian judicial system. We are about to implement a project with the Order of Notaries of Quebec to assist us with transforming the Ukrainian notarial system. The Chief Legislative Counsel of the province of Saskatchewan is currently in Kiev, assisting the Ministry of Justice with the establishment of a department of draft legislation. Canada has also assisted us with legal policy advice and advisors. Your Ambassador to Ukraine, Christopher Westdal, is a constant source of support for our efforts. He consistently underscores Canada's concern to help reform Ukraine's system of justice.

Acceptance of the Process

Canada's continued encouragement is vital to the long-term sustainability of the legal transformations taking place. Support from countries such as Canada will help legitimise the process of legal reform in the eyes of Ukrainian citizens. The credibility democratic nations bring to this aspect of Ukraine's constitutional development should not be underestimated. The magnitude of the challenge to change the mind-set of a nation is daunting. Reform of the legal system has been hampered by a collective memory of the use of the law by state authorities as an instrument of oppression and not as the handmaiden of freedom and individual liberty. The legacy of Soviet rule left deep scars on the psyche of the Ukrainian body politic. The attitude toward law was profoundly affected. Professor Jeffrey Sachs of Harvard University has pointed out that the Soviet system was not a legal order "but a kind of organised Mafia of ruthless extent." The state used the law as a political instrument. The result of this denigration of justice was a lost respect for the law as the guardian of individual rights and freedoms. As an ethical malaise afflicted society, apathy, cynicism and scepticism, rather than hope and faith, came to mark the average Ukrainian's attitude toward the Rule of Law.

The Constitution provides Ukrainians with the opportunity to reconsider their relationship with justice. Ultimately, for a democracy to succeed, it is essential for the state to operate on the basis of the Rule of Law. In this context, the new Ukrainian Constitution has made a clean break with the past and has established the terms by which a new social contract between individual and state must be concluded. It is a contract predicated upon the Rule of Law. It is a contract where both the individual and the state undertake to one another to abide by the laws of the land. It is a contract which will underpin the success of all of the transformation under way. As President Kuchma has stressed, "The Constitution is a civic agreement, creating new conditions for stability in the country ... if we don't respect the Constitution, Ukraine and its people will never be respected."

The social contract element is deeply significant. The Constitution marks a defining moment in Ukraine's struggle for statehood. It consolidates the historical aspirations of the Ukrainian people manifested as far back as the 1710 Constitution. There, the desire expressed by the Ukrainian nation to cast off the yoke of tyranny predates those of the French Revolution and the American Declaration of Independence. The Constitution thus provides a vital reaffirmation of Ukrainian national identity. It acts as a catalyst for the promotion of national consciousness and national integration. It establishes a framework for all Ukrainian citizens: it is a reflection of whom we are as Ukrainians, and how we are to be represented. The adoption of the new Constitution therefore manifests the critical link between the affirmations of statehood and national identity, and the creation of the juridical basis on which the Ukrainian state will be governed. It thereby legitimises the Rule of Law as the basis for the development of the Ukrainian state. This foundation is the sine qua non to the realisation of prosperity and social vitality in Ukraine.

Peaceful and Democratic Process

The Constitution is a compromise document. It is not perfect. Indeed these very facts attest to one of its cardinal attributes. The Constitution's adoption was the culmination of a lengthy and arduous, but fundamentally peaceful and democratic political process. Although Ukrainian executive and legislative structures have been much maligned, they ultimately did not fail the Ukrainian people. To have done so would have plunged Ukraine into a constitutional, political and social crisis. Instead, they produced a constitution of which every Ukrainian can be justifiably proud. It establishes a framework for peaceful national integration, responsible government, and harmonious social and ethnic relations. Few other states of the former Soviet Union can make the same claim.

Ladies and gentlemen, democracy is alive and well in Ukraine. Ukraine is truly at the threshold of a new era as it prepares to face the 21st century. It has been assisted along this road by many friends. These relationships have helped Ukraine become more self-reliant and self-confident. The transformation taking place today in Ukrainian society will continue to evolve in a democratic way. Never again will Ukrainians tolerate the imposition of a system which destroys social, human, and economic values. Instead, Ukraine shall build its state and secure its future on the basis of freedom; freedom to pursue one's livelihood; freedom to express one's point of view; freedom guaranteed by the fundamental law of Ukraine. The Constitution has legitimised the Ukrainian people's sense of self. The government's obligation is to enact the legislative basis for the full exercise of these freedoms, and thereby allow Ukraine's vast human talent to flourish.

I leave you with the message of President Kuchma, who declares that, "We have to create, and we will create, a state which will not be the tool of one political party, and thus will not tell the society how to live, but will serve it faithfully and reliably."

I thank you for your attention.

The appreciation of the meeting was expressed by William Whittaker, Partner, Lette, Whittaker and an Honorary Director, The Empire Club of Canada.