By Serhii Rakhmanin. Zerkalo Nedeli on the WEB, Mirror-Weekly,
Kyiv, Ukraine, 10-16, January, 2004

In Ukraine, making amendments to the Constitution seems to have become a national sport. Therefore it is not surprising that the author also would like to make his contribution to the political and legal reform. The obvious advantage of the amendments proposed here is that they are very brief. In my view, it would be most expedient to make article 102 of the acting Constitution the first article having formulated it as follows: The President of Ukraine is the head of state, the guarantor of the state sovereignty and the Supreme Commander-in-Chief. The name of the president is Leonid Kuchma! After that, it wouldn't be necessary to read the Constitution further and to amend it any more. Everything would be in the right place.

Do you think that I am kidding? Absolutely not. Your obedient servant is as serious as the Constitutional Court. Let me remind you that on the eve of this New Year this respectable organization gave the head of state a generous present. Leonid Kuchma was granted the right to try his luck in the presidential race for another time. One can only guess now if the Guarantor and Supreme Commander-in-Chief will exercise this right or not. However, if he takes the risk of running for president once again and if the country takes the risk of electing him once again then Mr. Kuchma would legally run the state for a third term.

Yet article 103 of the Constitution stipulates that "one and the same person cannot be President of Ukraine for more than two consecutive terms." Nevertheless, it is known that only the Constitutional Court has the right to interpret the Basic Law. On December 25 of last year, it published its interpretation of this article. In the translation from the language of legal casuistry into common language it roughly sounds as follows: "One and the same person can be President of Ukraine for more than two terms if this person is Leonid Kuchma."

Yet it turned out that a third term is not the end either. At a press conference following the announcement of the grand judgment, the speaker-judge Vasyl Nimchenko explained plainly to legally illiterate journalists why Leonid Kuchma also has the right for a fourth chance. Mass media representatives asked Nimchenko if Kuchma can stand at the election of the President by parliament in 2006 (given his hypothetical victory in 2004). The Honored Lawyer of Ukraine and the kandidat of law Nimchenko answered in the affirmative: "He can. Since this means that he did not serve five years."

Please do not take the following assumption for just another joke, but for some reason I believe that if asked about a fifth term, the author of a fundamental monograph "Citizens' constitutional rights and freedoms" would find a legally faultless answer. Yet didn't we know without any Constitutional Court conclusion that citizen Kuchma is always right and is always free in his choice? Then why not indeed introduce the appropriate regulation in the Constitution and stop worrying?

It would be insincere to say that the decision of the Constitutional Court on case #1-46/2003 was totally surprising. We must give credit to the Constitutional Court judges as they gradually prepared the public for it. To begin with, this constitutional jurisdiction body asked the advice of four collective experts. Their conclusions turned out to be uncommonly unanimous. Specialists of the Taras Shevchenko Kyiv National University, the Yaroslav Mudry National Legal Academy, the Volodymyr Koretsky Institute of the State and Law and of Odessa Legal Academy agreed that in the autumn of 1999 Leonid Kuchma was elected President of Ukraine for the first time. According to the acting Constitution, the decision of the Constitutional Court has a similar logic. Who was Leonid Kuchma prior to the autumn of 1999? Vasyl Nemchenko gave an exhaustive answer: "He fulfilled the functions of the President of Ukraine according to the acting Constitution."

Unfortunately, the reasoning of the reputed experts were left "off screen" since the mass media did not go beyond stating the fact of the court's decision. We will fill this gap, if you don't mind.

So, the first reason: "The right to be elected to the post of President after the adoption of the Constitution of Ukraine in 1996 has appeared once and was exercised by Leonid Kuchma only once in 1999." It is hard to object. Yet Leonid Kuchma exercised a similar right in 1994 and according to the CC judge Vasyl Nemchenko "fulfilled the functions of the president". Was the Constitution different? It was. However, both the old and the new Basic Laws and even the Constitutional agreement of 1995, which performed the functions of a provisional Constitution, had the same ban on a presidency of more than two terms.

We will make a short digression. Some time ago, several reputed lawyers published a very interesting argument: it is not prohibited not only to make amendments to the acting Constitution but also to adopt a new one, including through a public referendum. So what does this mean? If every five years a new Constitution is adopted, each previous term of President Kuchma would be his first one. So he could run for president until he is tired of it or until the people are tired of going to referenda.

The next reason: "When the Constitution of Ukraine of 1996 came into effect the President of Ukraine "gained a new scope of authority" (marked out bold by ZN. - editor) and exercised it until 30 November 1999." What does this mean? We will try to explain. The President is not only a person but also a body of power with a certain scope of authority. Thus, the authority provided by the acting constitution has been wielded by Leonid Kuchma since 1996. Whereas "the period from 1996 until 1999 does not make five years," said the reasonable Vasyl Nemchenko. So it is as if the first term were not a term.

Again, we will not argue but will try to imagine. The Verkhovna Rada is not prohibited from correcting the Constitution. In particular, people's deputies are not prohibited from rewriting its section V, "The President of Ukraine." If deputies do this an endless number of times then (in theory) a specific head of state would have the right to run for president an endless number of times and, given his skilful use of the administrative levers, to win endless number of times. Any amendment to section V of the Constitution would in fact mean that the Guarantor "gained a new scope of authority."

The third reason is as follows. The Constitution of 1978 (which was legally modified after Ukraine gained its independence), the Constitutional Agreement of 1995 and the old law "On the election of the president" lost their effect after the adoption in 1996 of a new Basic Law. Consequently, any references to these documents (which also have the rule of two presidential terms) are groundless. Then why not remember the Law "On the president of the Ukrainian SSR"? You will be laughing but this document, adopted as early as 1991, is still acting in the part that does not contradict the Constitution. For almost 13 years this law has had the regulation that one and the same person cannot be president for more than two terms in a run. And this regulation has never lost its legal force.

And the last reason, presented as perhaps the only perfect one in legal terms. Its starting point is that law does not have retroactive application. In 1997, the Constitutional Court ruled that "the principle of irreversibility of an action in time also applies to the Constitution." Yet, a number of foreign lawyers recognized this decision as not quite faultless, but the acts of Constitutional Court are not subject to appeal.

Now we will present to you the further train of thought of some of the CC members. Step one: Article 103 of the Acting Constitution forbids one and the same person to be the President for more than two terms in a row. Step two: this article "does not have any exceptions to the time restriction provided in the Constitution." Step three: "two other regulations of the Constitution do not specify retroactive application of the provision of the specified article." Conclusion: the specified provision of Article 103 "applies only to the relations established after the enactment of the Constitution of Ukraine."

In terms of constitutional law, this logic may look faultless. I will not argue due to my lack of the appropriate education. I will just try to analyze the situation in terms of formal logic.

First, Leonid Kuchma has been twice elected president according to the then acting Constitution and laws. The acting Constitution does not deny this. The Constitutional Court does not deny this. To declare that from 1994 to 1996 Leonid Kuchma was not the President is impossible. So, it comes out that he has been the head of state for ten years, that is, for two terms.

Second, in 1994, Leonid Kuchma was elected according to the then acting Constitution of 1978 and the old election law. If we proceed from the principle "of the irreversibility of the action of laws in time", then even after the adoption of the Constitution of 1996 he should have lived according to the old Basic Law and elected in summer 1999. Yet in 1996, Leonid Kuchma gained new authority and was again elected head of state in autumn 1999.

And finally, by its decisions, the Constitutional Court referred to the Constitution as if it "has split" President Kuchma in two - one lived until summer 1996, the other one lived after that and (in terms of legal relations and legal consequences) had nothing to do with the first one. I dare to object to this referring to that very Constitution. The person elected head of state in 1994 "remained at the post of president" after the adoption of the Basic Law, otherwise the Constitution would have required early presidential elections.

A journalist writing about the decisions of the Constitutional Court has practically no possibility to analyze the logic and position of each of the CC members since information about how each of the judges voted has recently stopped being released to the public. This innovation has been introduced by default, without giving any reason for it. Documents regulating the activity of the Constitutional Court do not regulate this issue in any way. One can only guess the motives for making the decisions of this highly respected body faceless. One can judge about the opinions of specific CC members only by reading special opinions attached to a decision but very rarely publicized. We will try to fill this gap and cite brief quotations from three special opinions on the case of presidential terms.

CC judge Pavlo Tkachuk: "There are sufficient grounds to conclude that the incumbent President of Ukraine has held this post for the second term in a row."

CC judge Vologymyr Shapoval: "The position formulated in the decision is erroneous since it theoretically allows for a lifelong stay in the post of President of Ukraine for one and the same person."

CC judge Mykola Savenko: "The Constitutional Court has in fact created conditions for the establishment of an antidemocratic political regime in Ukraine."

There is no official information about the distribution of votes in the case of "the third term". However according to our source, 11 judges voted for a "split" President. Four judges were against. It is not difficult to find out the names of the three of them - Pavlo Tkachuk, Vologymyr Shapoval, and Mykola Savenko. People who did not believe that one and the same person can be President for three terms help the CC at least partially to save its face. It is very easy to determine the position of Vasyl Nemchenko. And we can only guess who of the remaining 11 - Mykola Selivon, Volodymyr Voznyuk, Pavlo Yefhrafov, Volodymyr Ivashchenko, Mikhailo Lostytsky, Lyudmyla Malynnykova, Valeriy Pshenychnyi, Viktor Skomorokha, Ivan Tymchenko, Volodymyr Tykhyi or Lyumyla Chubar - did not believe in a new year's miracle of a "split" President.

This is unfortunate since the country (which may have to vote for Leonid Kuchma for the third time) must know its heroes. And also the "heroes".