Ukraine Constitutional Advisory Note

New-Rule LLC Occasional Papers Series Number 1, June 2014

Scott N. Carlson Principal

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EXECUTIVE SUMMARY Ukraine is at a crucial threshold with major internal divisions and global powers. The ability of Ukraine to prevail as a unitary nation state will depend upon interested parties working together towards a basic constitutional framework that resolves outstanding issues. International engagement and donor programming could be instrumental to a positive outcome. Constitutional best practices provide guidance on the process that should be supported to maximize the possibility of a positive outcome that supports a durable rule of law culture. Rapid mobilization on the same is critical, and New-Rule LLC is ready to provide the technical expertise necessary to support the strategic design and launch of systematic national consultations. This Advisory Note provides an illustrative description of the issues and processes that would ideally be addressed programmatically in the forthcoming weeks and months. Note: This document was circulated to Western authorities in May 2014. CONTEXT The Geneva Agreement of 17 April 2014 describes a process for stabilizing Ukraine and resolving the escalating conflict via consensual dialogue. In particular, the Geneva Agreement references constitutional reform that is built upon an inclusive consultative process with Ukraine’s regions and political representatives. Despite the depth and breadth of issues involved, the Interim Government has proposed an abbreviated process intended to conclude a new draft within less than six months, September 2014. Recent international reporting indicates the date could slip, but the salient point would be that the restricted timeline itself was imprudent and lacked grounding in rule of law best practices. Concurrently, the Organization for Security and Development in Europe (OSCE), has offered to help with promoting dialogue in Ukraine. However, the OSCE has yet to articulate an alternative to the Interim Government’s timeline and conceptualization of the process. Regarding the “national dialogues,” U.S. news headlines comment on elite Ukrainians being engaged. At the same time, Russian Foreign Ministry spokesman Aleksandr Lukashevich presses forward with a targeted narrative on the lack of sufficient inclusivity in the dialogues. The political barometric pressure is rising rapidly, and while the relative peace of the Presidential election is promising, the long-term stability will require constitutional consultations that are viewed widely as legitimate. In the post-election press conference, the OSCE was careful to highlight constitutional “reform.” Nevertheless, it remains plausible that all parties, including Russia, will support a rushed process that does not address the concerns of all Ukrainians. When on 15 May 2014, I personally asked Secretary General (SG) Lamberto Zannier of the OSCE whether there was room for a more involved constitutional process, he left room for discussion, but he did not offer new ideas. At the same time, he was careful to emphasize his working

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relationships with the Ukrainian elites, and he was clear they should engage on, if not direct, the entire process. While that might be a convenient ideal, the reality is that the voice of the average Ukrainian is equally crucial, and the Ukrainian elites are not a substitute. International Donors are well placed to convene truly inclusive dialogues that re-knit the damaged social fabric, de-escalate tensions between competing elites and average citizens, and foster rule of law.

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In 1998, I worked intensively with OSCE on an analogous constitutional consultation project in another context in Albania. That constitution was the first and only constitution for that country in the post-Iron Curtain context. It involved all major donors, and it lead to a constitutional process that is discussed as a rule of law model. The programmatic themes in Albania apply directly to Ukraine, and I believe international donors have the opportunity to get in front of this issue and offer a preemptive rebuttal to critics that may pronounce the current trajectory as designed to be exclusive, non-transparent, and possibly even corrupt. In summary, I would suggest that we look at five programmatic themes: PROGRAMMATIC THEMES

I. Public Consultations Fostering a Full Examination of the Relevant Issues Given that constitutions are central to the foundation of a stable legal state, if a constitution does not address the fundamental concerns of the citizenry, then the basis of the legal state may be contested from inception, destabilizing legal relationships of all types. At its worse, constitutional instability may cause conflict instead of the social cohesion and cooperation that should be the overarching goal of the constitution-making process. The events leading up to, and including, the April Geneva Agreement make clear we face this situation.

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While Ukrainian political representatives may be generally familiar with the concerns of their constituencies, public consultations would allow them to verify the precise nature and extent of these concerns, as well as open themselves to learning about new and emerging issues. When new issues are brought to their attention in this manner, public consultations afford the politician the opportunity to seek immediate clarification from the Ukrainian citizenry. Moreover, consultations give politicians the opportunity to hear the concerns of citizens who are not of their constituency, leading to greater overall awareness and understanding. This expanded knowledge is essential to creating the conditions necessary for compromise, as well as the foundation for a durable rule of law culture.

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II. Public Consultation Develops Local Ownership and Political Will

Meaningful involvement of the Ukrainian citizen could create ownership and pride in the constitution and attendant legal order. For involvement to be meaningful, the Ukrainians must have the opportunity to be heard, and they must see that their input has been taken seriously. This standard does not mean that every suggestion must be accepted and incorporated as submitted, but it does mean that there must be a transparent process that demonstrates respect and consideration of differing views. The rule of law does not mean one side always prevails, but it does mean that disputing views are debated publicly in a fair, transparent manner. As one might expect, if Ukrainian public consultations do not meet this minimum standard, they risk alienating the population. However, if properly executed, public consultations can create a sense of ownership that encourages the population to embrace their new government, leadership, and associated laws. With such support, the citizens themselves become a powerful stabilizing force and anchor for a state based on the rule of law. Ukrainian grassroots ownership could thus create political support for both the constitution itself and the implementing legislation that must follow from it. Politicians can translate this support into “political will” to address the difficult issues that will be the day-to-day work of any new legislative body. Social media makes this accessible with relatively little effort in today’s world, but accurate data requires expertise. New-Rule partners have produced dynamic web-based consultative mechanisms for international donors in other contexts, and New-Rule has confirmed with these partners that they are prepared to launch such a platform in Ukrainian, Russian, and English in short order. The new Ukrainian constitution can, and should, establish the broad outlines of the social contract amongst the various interests, but the details of this agreement will require considerable additional legislation and regulation. So, if this process of transition is to proceed as smoothly and successfully as possible, the implementing legislation must enjoy a similar level of public support, and local ownership is the sine qua non of the that type of support. Once established for the constitution, the same dynamic web-based platform and consultative process can easily carry over to the realm of implementing legislation, solidifying reform.

III. Public Consultation Promotes More Effective Public Education Though most constitution-making processes include public information campaigns as a strategic component, these campaigns are frequently one-sided in structure with government entities delivering information through various media outlets. This approach in Ukraine would be particularly problematic. A robust, inclusive discussion is important for the success of the public education process.

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Moreover, there is considerable research and experience demonstrating that adults learn more effectively when interactive methods are employed. In participatory constitutional dialogues, even those who are not directly involved will likely feel more engaged and listen more closely when they see a common citizen like themselves making a comment. New media makes this accessible on a broad scale, and important constitutional discussions will undoubtedly “go viral.” In addition, direct dialogues with the citizenry help those in charge of the process to identify where more education or clarification is needed. Thus, even where one-way delivery of information is involved, it too can be shaped and refined to be more effective based on the experience of interactive dialogue. At the same time, the modern social media is only accessible with a threshold of technology, e.g., smartphones, and low-tech, manual alternatives should be visible and acceptable.

IV. Public Consultation Helps to Contain Conflict and Spoilers

Constitutions always reflect a difficult set of compromises that some elements in society are likely to disagree with, and perhaps take advantage of, for their own divisive purposes. Public consultations help to manage the containment of these potential conflicts in several important ways:

1) Public Record: A participatory, transparent process creates a public record that is difficult to distort for parochial purposes. If someone makes an exaggerated or outrageous claim, the public will know that it is unsupported on the facts because the public record will demonstrate that, and those who are attacked can find support and

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Public consultation develops local ownership and political will.

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strength in the public record. This component is the bulwark against allegations of corruption.

2) Open, Inclusive Process: The full involvement of the people in a participatory process creates a political base that extends beyond simple political parties or groups. As citizen involvement grows, it becomes increasingly difficult for anyone to withdraw because to do so would jeopardize the ability of the individual or group to harness and benefit from the growing reservoir of political goodwill. Simply stated, a successful constitution-making process benefits all and makes the cost of leaving it high.

3) Publication of Consultations: Finally, even where someone or some group chooses to exclude themselves from the process, the direct connection established with the people during consultations provides a source of legitimacy that is not easily compromised by isolated individuals and groups.

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To manage these activities, there is a manifest need for a secretariat to support public outreach and documentation of consultations. There are many forms that this secretariat might take. The bottom line is that the secretariat must beyond reproach in terms of its commitment to transparent and fair consultations. In turn, this ultimate objective strongly suggests international involvement in a manner that is perceived to be neutral and inclusive of all perspectives.

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V. Public Consultation Strengthens the International Position vis a vis Process and Resulting Government

The OSCE is in a leadership role that benefits from its multilateral composition. However, the OSCE does not have donor expertise and capacity in grassroots programming. In fact, given that they are at about 50% coverage in terms of authorized positions, it is difficult to say they are a nimble, or exclusive, implementer in this context. Citing the Albania collaborative model, I believe there is strong precedent for international donors to seize the initiative on this type of program in support of the OSCE. There are at least two very significant components to consider in this regard:

1) Donor Assistance: The international donor community may be hesitant to provide technical or financial assistance to a process that may be viewed as favoring a particular political party or group’s ambition. However, when the assistance is for a process that involves the public at large the appeal is broad, and it is less likely to find concern in the international community.

2) International Legitimacy: A legal system and government that emerges from a participatory process frequently enjoys greater international credibility because it is viewed as reflective of the will of the people. If and when internal conflict may return, the international support may prove crucial to a successful resolution of the associated crisis.

International donor action in the appropriate manner can address both issues expeditiously. Of course, I would be remiss if I did not also note that failure to engage will likewise leave international donors open to criticism. In that regard, a properly calibrated engagement on the

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constitutional process is a best practice, and regardless of result, I believe international donors would receive recognition for their responsiveness to the Ukrainian constitutional crisis. CONCLUSION Constitutional consultation issues are more easily, and technically, addressed in 2014 than 1998. The tools available are exponentially more sophisticated. However, the approach that is currently being discussed does not adequately reflect the new technology and the lessons learned, and it appears destined to play into a negative narrative that supports secessionist claims. When I started on a similar process in Albania in 1997, many predicted it would be done in six months. One year and a half later, it was completed, and we still felt rushed throughout most of the process. While I would not suggest that eighteen months is the current standard, I would strongly urge that you engage to promote a constitutional process that is considered meaningful in the context. I look forward to discussing any thoughts that you may have and thank you for your time and attention. POST-SCRIPT At the end of May 2014, New-Rule circulated this Advisory Note as a memo with relevant attachments, e.g., Dominik Tolsdorf, Constitutional Issues in Ukraine (USIP, May 22, 2014). Since its distribution, response has been limited, but generally positive. The decision to publish this note is based on a sincere desire to contribute to the advancement of human rights and rule of law, which is under assault in Ukraine at the moment. All comments, concerns, and questions about the text are welcome.