The topic of possible constitutional reforms is one that has been on the agenda of many a few presidential candidates these past months. However, no matter the changes this also begs the question whether the process for achieving these changes is as democratically qualitative as we think it is. Are constitutional reforms appropriately subjected to thebasic principles of inclusivity and legitimacy?
When observing the legal theory as stated by Locke, Hobbes or Rousseau, a constitution is defined to be a social contract. This theory implies that inclusivity is imperative to the process of constitutional reforms and is a basic necessity to give the document some form of legitimacy. Inclusivity can be achieved through direct methods, such as referenda, or indirect methods, such as the creation of constitutional commissions where societal representatives can weigh in on the narrative that is being formed.
Ever since 2004, Ukraine has barely ever lived through a presidential term without a constitutional change. It shows that politicians use it as a tool, which will be modified and used by the ruling government in a way that is beneficial to them. Instead of being a long-term consistency in a well-balanced democracy, the constitution is (ab)used as a temporary fix. Never mind the fact that Ukrainians have hardly had any say about the “what”, “why” or “how” when it comes down to constitutional reforms.Almost all previous constitutional changes have taken place without any proper public discussion, expert deliberation or involvement of civil society institutions.
So, when faced with a possible new president, the question doesn’t necessarily lay with what he will or won’t change about the constitution, but rather with how he would do it.There are several ways to ensure inclusivity and legitimacy throughout the process of constitutional reforms: public debates, opinion polls, full-fledged referenda and independent commissions are just a few of the practical solutions to start with. However, these procedural necessities have to be implemented and seen through on a higher level, as to ensure the public’s basic right to be included in the process of any and all constitutional changes.
The Ukrainian Constitutional Court has explicitly stated that the Ukrainian people – as the sole bearers of power –have the right to be consulted in the process of constitutional reforms (CCU 16/04/2008). However, through lack of measures to ensure inclusiveness, the people have never been able to practice their decisive rights on the subject. This is implicatesthat all past constitutional changes which have been implemented without public consultations, can be interpreted as usurpation of power by the acting government since they have failed to include the root of all power in their process.
It might be impertinent - but nevertheless important - to realize that the need for a legitimate constitutional process is something that Ukraine is in grave need of, especially in the unstable times it is currently confronted with and will still be facing for many years to come. The fact alone that the above-mentioned questions can be raised and that the stability of the Constitution is undermined by a constant flux of political opportunism is enough to get us thinking about which main problem the next leadership will have to tackle first.