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
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
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
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
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
Basic Law, otherwise the Constitution would have required early presidential
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
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
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".
Zerkalo Nedeli on the WEB, Mirror-Weekly, Kyiv, Ukraine
email@example.com, FOR PERSONAL AND ACADEMIC USE ONLY