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News 24 September 2019, at 15:56

Dainius ŽalimasUkraine between East and West, or between the legacy of tyranny and the tradition of freedom

Marime Font

I begin with an allegory expressed by prof. Vytautas Landsbergis, the first head of the restored State of Lithuania, who used to address the options for geopolitical orientation after the restoration of the independence. When asked about the possibility in 1990s for Lithuania to choose neutrality, he responded that this option would resemble to a sitting on a wall, i.e. being confined in time without any determination which way to follow. Obviously, then the only real choice to become free from the Soviet past and the Russian zone of influence was to pursue actively the Western geopolitical orientation.

I think this allegory of a wall can be applied to both our countries as well as to other post-Soviet societies. One can say that nearly for 30 years Ukraine had been sitting on a wall that Vytautas Landsbergis had in mind. One can also ask why sitting on a wall cannot be a good option. The answer is: because of a constant state of being in between, or becoming a grey zone. The wall on which Ukraine had been sitting could be described in many ways, i.e. as the line between the past and the future or between East and West, or between the legacy of tyranny and the tradition of freedom. Your painful experience is a clear demonstration that such a long sitting on a wall with attempts to benefit from both sides neither was able to prevent aggression, nor allowed your country to grow by ensuring welfare for all its citizens. To a certain extent, Ukraine is still in 1990s with such challenges as protecting its people and territory, strengthening national identity and a civic society, building a stable constitutional democracy and fighting corruption, etc.

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However, I am happy that now Ukraine is facing a historical moment. The Revolution of Dignity provided one more chance to jump from a wall and move forward without looking back to another side. As the achievement of the Revolution, the Western geopolitical choice has recently been consolidated at the constitutional level and now is under the strongest possible legal protection. On 7 February the Ukrainian Parliament adopted the corresponding constitutional amendments on the Euro-Atlantic integration (they entered into force on 21 of February). I am also happy that these amendments have been inspired by the Lithuanian experience. It has already proved that it is worth to consolidate the Western geopolitical orientation at the constitutional level, in order to ensure consistency and irreversibility of this course and even to strengthen the claims to the EU and NATO membership before these organizations. Nobody knows whether we were so successful 15 years ago in getting a fully-fledged EU and NATO membership, had we not inserted the first clause on the geopolitical orientation into our Constitution already in 1992. I have to emphasize that this was not the requirement of the EU or NATO, but it was our sovereign determination to take the Euro-Atlantic path and to consolidate this course in the Constitution, bearing in mind our historical experience and denouncing the legacy of the Soviet occupation. The recent amendments to the Ukrainian Constitution have been dictated by similar considerations.

Ladies and Gentlemen, as we all know, the recent amendments to the Ukrainian Constitution included the provision in its Preamble stating about the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine, also the provisions in the corresponding articles of the Constitution regarding the responsibilities of the Verkhovna Rada, the President and the Government to pursue, according to their respective competence, the strategic course aimed at the fully-fledged membership of Ukraine in the EU and NATO. I must say that the geopolitical orientation is not very often so expressly stated in national constitutions. However, definitely Ukraine is not the first in doing this. Apart Lithuania, I can also mention such examples as Montenegro, Hungary, and the Czech Republic, which national constitutions contain statements on the Western geopolitical orientation in their preambles (e.g., similarly to Ukraine, in the Preamble of the Constitution of Montenegro there is the statement on the European and Euro-Atlantic integration). The Constitution of Romania contains the chapter on Euro-Atlantic integration. Similarly to Ukraine, in 2017 Georgia, which is also the EU Eastern Partnership country, amended its Constitution by obliging the state institutions to take all necessary measures to ensure Georgia’s full integration into the EU and NATO. Certainly, almost all the EU countries have the special provisions or special constitutional acts regarding such foundations of the EU membership as the delegation of certain state competence to the EU and the integration of the EU law.

However, in Lithuania the constitutional principle of the Western geopolitical orientation is the most strongly expressed and developed. This is both due to the express provisions in the text of the Constitution (the special constitutional act on non-alignment with the post-Soviet unions, the special constitutional act on the EU membership, and the provision on the European and transatlantic integration, which existed in 1996-2003) and due to the official constitutional doctrine developed by the Constitutional Court.

Certainly, you may ask what the Constitutional Court can do in maintaining the geopolitical orientation when it does not have the legislative and political powers. Actually, its contribution can be huge. We must not forget that the Constitutional Court is the sole official interpreter of the Constitution. Therefore, by providing the binding interpretation of the constitutional provisions, the Constitutional Court can explain and develop the content of this principle, reveal its origins, discover its relationship with other constitutional values and, in general, fil the gaps in its understanding. Sometimes, even the principle itself can be found in the Constitution only by the Constitutional Court. For instance, in 2013 the Constitutional Court of Moldova in two judgments in the Romanian language case and in the European association agreement case declared that the European integration is an inseparable part of national constitutional identity of the State of Moldova; as the consequence, any other adverse geopolitical orientation is unconstitutional in itself (meanwhile, the constitutional amendments expressly providing for the EU course failed in the Moldovan Parliament later).

Regrettably, the Ukrainian Constitutional Court missed the opportunity to explore the principle of the Western geopolitical orientation in its 22 November 2018 conclusion on constitutionality of the draft constitutional amendments regarding the strategic course towards the EU and NATO membership. Actually, the Court limited itself to a formalistic approach that the proposed constitutional amendments were not aimed at the restriction of human rights, liquidation of independence or breach of territorial integrity of the state. It did not provide any other arguments in favor of constitutionality (contrary, e.g., to the 16 July 2019 judgment where the Court has exhaustively grounded the legitimate aim of de-communization). Neither the Court explained how, on the contrary, the constitutional amendments could strengthen the protection of state sovereignty and human rights, nor it disclosed the implications of the constitutional amendments to the whole national legal system.

As it follows from the jurisprudence of the Constitutional Court of the Republic of Lithuania, the principle of the Western geopolitical orientation can be defined as the constitutionally enshrined orientation of a State to the Euro-Atlantic community of states, based on the commonality of recognized and protected democratic values, which means the imperative to ensure national security and welfare by integration into this community, including the full membership in the most important organizations of this community – the EU and NATO, taking advantages and sharing joint responsibilities of this membership. For instance, in its 7 July 2011 and some other rulings the Constitutional Court emphasized that the geopolitical orientation of the State of Lithuania means the membership in the EU and NATO as well as the necessity to fulfil in good faith all the relevant international obligations related to this membership. In the 24 January 2014 ruling the Court also emphasized that this geopolitical orientation is based on the universal constitutional values that are common with other democratic European and North American states.

Thus, the Western geopolitical orientation means not just a formal imperative of the membership in the EU and NATO, but the real and sincere commitment to the universal democratic constitutional values as the basis of this imperative, such as the rule of law (not the rule by law), a pluralistic democracy (not ‘demo-dictatorship (‘demokratura’)’ by the prevailing majority and ignoring minorities), the respect for human rights (first of all, to the human dignity, as the true democracy is inseparable from the respect to dignity of any person (as stated, e.g., by the Slovenian and Lithuanian constitutional courts)). These values are also proclaimed by the European Union Treaty and the North Atlantic Treaty; they cannot be denounced even in such cases as the ‘Brexit’. Some constitutional courts (e.g., the German or the Latvian) have stated about the compatibility of these values with the fundamental or core constitutional provisions, when examining the constitutionality of the EU Treaty amendments. This leads to the assignment of a State to the broader collective, or the European constitutional identity, which is also now declared in the Preamble of the Ukrainian Constitution. May I remind, that already in the 1973 Declaration on European Identity the then members of the European Communities proclaimed their determination to defend the principles of representative democracy, the rule of law, social justice and respect for human rights.

Ladies and Gentlemen, at this point we come to the second important issue in understanding the constitutional principle of the Western geopolitical orientation, i.e. the origins of this principle. Taking into account the Lithuanian experience, this principle should be regarded as the well-established and long-standing constitutional tradition of a State, which is an essential element of national constitutional identity, rather than the constitutional novelty. This principle is traced to the fundamental act of supra-constitutional nature, such as the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (the key act of the Resistance against the Soviet occupation, which proclaimed the continuity of the State of Lithuania and the principles of the restoration of its independence). We can find the Western geopolitical orientation in its modern sense implied from the provision of the Declaration, which declared the commitment of the State of Lithuania to full implementation of “the true principles of democracy stemming from the understanding of Christian morality and declared in the Atlantic Charter, the Declaration of Human Rights and other declarations of justice and freedom“, as well from the appeal to all of the democratic world for assistance. Moreover, the Communist party was declared illegitimate, as its aims were dictatorial and contrary to the independence and constitutional order of the Republic of Lithuania (similarly the Communist party is described in the 16 July 2019 judgment of the Ukrainian Constitutional Court on de-communization). These provisions of the Declaration meant that the geopolitical orientation of the State of Lithuania, on behalf of which the Council of the Lithuanian Freedom Fight Movement was acting, was the democratic Western world (we may have in mind that at the time, when the Declaration was adopted, the North Atlantic Treaty was in the final stage of preparation); this geopolitical orientation was contrary to that of the occupying state (the USSR was opposing to the Universal Declaration of Human Rights). Historically, perhaps the Western geopolitical orientation can be traced even to the 14th century letters of the Grand Duke Gediminas to the European rulers and cities.

I am sure that there should be the acts of the Ukrainian Resistance against the Soviet Union, in which we could find the origins of the modern understanding of the Western geopolitical orientation of Ukraine (historically, perhaps we can trace the origins of this principle to the 1710 Pylyp Orlyk Constitution or the 3 May 1791 Constitution, or to the acts of the Ukrainian People's Republic). At least, we can follow the Moldovan example: as proclaimed by the Constitutional Court of Moldova in the above mentioned judgments of 2013, the European integration, as an element of a national constitutional identity, follows from the 1991 Declaration of Independence; since it was the independence from the Soviet Union, the Declaration per se implied the rejection of the Soviet totalitarian past and the direction towards the European community of democratic states. Once we agree that the European identity of the Ukrainian nation is implied from the 1991 Declaration of Independence, the corresponding amendments to the Preamble of the Constitution can be seen as simply the reflection of the Ukrainian constitutional tradition.

This finding is not an end in itself. As the consequence, it results in the rejection of the Soviet system as alien and incompatible with national constitutional traditions. The fictitious Soviet constitutions cannot be regarded as a part of national legal legacy; therefore, the declarations of the Soviet authorities (e.g., the supreme soviets of the Ukrainian SSR) on neutrality or other aspects of international relations cannot be binding on the Ukrainian State that declared its independence from the USSR. That is why we should commend the intention of the current Ukrainian Parliament to annul all the Soviet legislation.
Another and even more important consequence is the high place in the hierarchy of the constitutional principles and values, assigned to the Western geopolitical orientation. Most probably, this principle should take the next place after the eternal principles of the Ukrainian Constitution, such as the independence, the territorial integrity and the respect of human rights, i.e. it should be recognized as unchangeable or possible to change by a particularly qualified procedure (therefore, in future the Western geopolitical orientation could be also applied as one of the criteria for constitutionality of constitutional amendments). Perhaps the irreversibility of the Euro-Atlantic course, which is proclaimed in the Preamble of the Constitution, can be explained exactly in this manner. It is due to the fact that the Western geopolitical orientation can be treated as the constitutional tradition that is closely related and follows from the above mentioned highest constitutional values. For instance, in the 24 January 2014 ruling the Constitutional Court of Lithuania stated that the geopolitical orientation of the State is closely interrelated with the fundamental unchangeable constitutional values consolidated in Art. 1 of the Constitution (such as independence and democracy); therefore, the core element of the geopolitical orientation amounts to the de facto eternity clause that is practically impossible to change (as it would require 3/4 votes of all citizens in the referendum). In coming to this conclusion, the Constitutional Court took into account the historical circumstances and the meaning of the restored independence in 1990 (it was, first of all, the liberation from the Soviet occupation). That is why the constitutional prohibition to enter any post-Soviet union deserves pretty much the same protection as the independence and democracy clauses.

Ladies and Gentlemen, the third issue I wanted to touch is that the constitutional principle of the Western geopolitical orientation should be perceived as consisting of two interrelated elements (as stated by the Lithuanian Constitutional Court in the 24 January 2014 ruling, the textual expression of this principle in negative and positive aspects). One of these elements (the so-called positive aspect) is the imperative of the fully-fledged EU and NATO membership, which is now expressly provided in the Ukrainian Constitution. A number of times the Lithuanian Constitutional Court underlined that the fully-fledged EU membership is a constitutional value and a constitutional imperative based on the sovereign will of the people. There is no reason to treat the NATO membership in a different manner, as it provides the biggest possible and irreplaceable security guarantees (even if in the current text of the Lithuanian Constitution the NATO is not expressly mentioned). Otherwise, the Constitution as a social contract would become meaningless, whilst the state could not be deemed to be the common good.

Next element (the so-called negative aspect) logically follows from the first one or can be regarded as the prerequisite of the latter. It means the prohibition to enter international organizations or other unions that are incompatible with the EU and NATO membership, first of all the entities established on the basis of the former dependence on the USSR with the aim to maintain the Russian domination (e.g., the Commonwealth of Independent States, the Collective Security Treaty Organization or the Euro-Asian Union). In Lithuania this restrictive element of the geopolitical orientation appeared in the text of the Constitution earlier than the imperative of the EU and NATO membership (actually, it was consolidated in the 1992 Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” preceding the Constitution itself). I dare to say that in Ukraine this element is implied as the consistent continuation of the already established constitutional imperative of the EU and NATO membership.

Ladies and Gentlemen, the last issue I would like to address is the implications of the constitutionally established principle of the Western geopolitical orientation. It would be erroneous to depict this principle only as the purely political in its content or as the constitutional priority of only foreign and national security policy. I would emphasize that the constitutional principle of the Western geopolitical orientation is addressed not only to the expressly mentioned state institutions (the Parliament, the President and the Government), but to all state bodies and branches of power, including judiciary. This is also due to the provisions of the Preamble of the Constitution regarding the European identity and irreversibility of the Euro-Atlantic course of Ukraine. As regards Lithuania, in the 16 May 2016 decision the Constitutional Court pronounced that, under the Constitution, the role of courts is not limited exclusively to the administration of justice; as well as other institutions of state power, courts, within their constitutional competence, may participate in the activity of fulfilling international obligations related to full membership in the EU and NATO, including the contribution to the integration of the Eastern Partnership countries (including Ukraine) into these organisations.
However, much more important is which duties for other State institutions, including judiciary, arise out of the constitutional principle of the Western geopolitical orientation. The main duty here, in particular for the Constitutional Court, is to perceive, to interpret and to apply other provisions of the Constitution in the context of the constitutionally confirmed irreversible Euro-Atlantic course towards the full membership in the EU and NATO. Indeed, this may have a significant influence on the understanding of many other constitutional provisions. For example, in the 15 March 2011 ruling the Constitutional Court of Lithuania declared that the prohibition on the establishment of foreign military bases on the territory of Lithuania (Art. 137 of the Constitution) does not cover the deployment of allied forces and even military bases. In other words, the Constitution cannot be interpreted as the ‘suicide pact’ precluding the defense of Lithuania pursued together with the NATO and EU allies. In this manner the constitutional principle of the Western geopolitical orientation has narrowed the scope of the constitutional prohibition of the foreign military bases. Similar approach in 2017 has been taken by the Constitutional Court of Moldova in its decision on permanent neutrality clause. Similarly we can perceive also the identical prohibition of the foreign military bases under the Ukrainian Constitution.

Another example from the case law of the Lithuanian Constitutional Court concerns the impact of the principle of the Western geopolitical orientation on the constitutional basis of national economy. In the 3 April 2015 ruling on the constitutionality of the legal regulation of the establishment and activities of the LNG terminal, the Court stated that the constitutional duty of the state to ensure the general welfare of the people, in the context of the geopolitical orientation and the EU membership, means the duty to ensure the security and reliability of the energy system, including the diversification of the sources of gas supply (i.e., in practice, the measures to abolish the monopoly of “Gazprom”).

No less important is that, due to the principle of the Western geopolitical orientation, the EU law, including the case law of the EU Court of Justice, even the good practices of national courts of the EU and NATO countries should be perceived as the sources for the interpretation of the Constitution. In other words, the Constitutional Court has the duty of harmonisation of the Constitution, on the one hand, and the EU law or, sometimes, the NATO standards, the good practices in the EU and NATO countries, on the other hand. This cannot be seen as the contradiction to the principle of supremacy of the Constitution. On the contrary, the Constitution itself obliges to comply with the EU law in the areas where, under the same Constitution, the state competence is conferred on or shared with the EU; it is only logical that, once the NATO membership is considered to be one of the highest constitutional values, the Constitution also obliges to follow the applicable NATO standards; similarly, under the constitutionally established Western geopolitical orientation, first and foremost the good practices of the EU and NATO countries, including the jurisprudence of constitutional courts, should be taken into account when deciding on the issues not directly covered by the EU law or the NATO standards. Therefore, the harmonisation of the Constitution and the relevant EU and NATO standards is the imperative established by the Constitution itself, in order to strengthen the rule of law and the supremacy of the Constitution. Thus, usually there is no constitutionally justifiable reason to seek different purely national standard in the areas governed by the EU law or the NATO standards, or, sometimes, where the good practices of the EU and NATO countries exist.

For example, as it follows from the 14 December 2018 ruling the Constitutional Court of Lithuania, the constitutional obligation to implement properly the requirements of EU law is applicable to the whole judiciary, including the Constitutional Court itself. In the 20 December 2017 decision the Constitutional Court of Lithuania stated that the EU law is a source for the interpretation of the Constitution in the areas where Lithuania shares with or confers on the EU the competences of its state institutions; therefore, there are no grounds for interpreting the provisions of the Constitution in the areas of agriculture and internal market in a different manner than regulated by the EU law. Similarly, in the 7 July 2011 ruling the Constitutional Court declared that, under the constitutionally established geopolitical orientation, Lithuania may not establish lower standards of the protection of classified information than those of the EU and NATO. In the 1 March 2019 ruling, deciding on unconstitutionality of the compulsory legal representation in the appellate procedures, the Constitutional Court of Lithuania took into account the practice of the Romanian, Latvian and Moldovan constitutional courts rather than the different position of constitutional courts of some non-EU countries.

The same principles may and should be applied to the interpretation of the Ukrainian Constitution. However, the 26 February 2019 judgment of the Ukrainian Constitutional Court in the case on illicit enrichment, which was passed 5 days after the constitutional amendments regarding the Western geopolitical orientation had entered into force, is clearly a step to the opposite direction. Regretfully, the Ukrainian Constitutional Court left unnoticed both the amendments to the Constitution and the international commitments of Ukraine, including those assumed under the EU association agreement. It also disregarded the practice of the Lithuanian and Moldovan constitutional courts as well as the relevant case law of the European Court of Human Rights. Ironically, by this judgment, in Ukraine the rights of individuals suspected of corruption now can be ensured on a higher level than in Lithuania and other EU countries. The Western geopolitical orientation still has not been invoked by the Ukrainian Constitutional Court, although the recent judgment on de-communization can be seen as complying with the spirit of that principle.

Finally, the most important is that, due to the constitutional principle of the Western geopolitical orientation, the EU standards, including the Charter of Fundamental Rights (and the European Convention on Human Rights referred in the EU Treaty), have to be regarded as the constitutionally required minimum for the protection of human rights. This follows, e.g., from the 18 March 2014 ruling of the Lithuanian Constitutional Court, where it was confirmed that the State cannot apply to its own nationals the standards lower than those established by international law. In the Ukrainian case, once the European identity of Ukraine and irreversibility of the Euro-Atlantic course is constitutionally confirmed and the EU membership is considered to be one of the highest constitutional values, it is the constitutional duty of the Ukrainian State to provide the adequate human rights protection and to harmonise the whole legal system with the EU requirements without waiting for the accession to the EU. Thus, the main advantage of the constitutional principle of the Western geopolitical orientation for all Ukrainian people is that any person, relying on the Constitution of Ukraine, is entitled to request from judiciary and other law applying authorities not less favourable treatment than he or she would receive under the EU law.

Ladies and Gentlemen, we can see what a huge transformation is hidden behind the short passage in the Preamble of the Constitution about the European identity and irreversibility of the Euro-Atlantic course of Ukraine. Indeed, the Western geopolitical orientation, established by the Ukrainian Constitution, can be regarded as one of the most important coordinative constitutional principles. Together with such constitutional principles, as the rule of law and the supremacy of the Constitution, the Western geopolitical orientation ensures the harmony and integrity of all the constitutional principles, values and provisions. It requires the Europeanisation of the Constitution and the whole legal system, thereby providing guidelines for all the ongoing reforms. However, the Europeanisation of the Constitution usually does not require the changes in the text of the Constitution (except those necessary upon the accession to the EU). What does it really require is the appropriate development of the interpretation of the Constitution, including by jurisprudential means, by opening the Constitution to the influence of the European law and by disclosing the ‘living’ content of the Constitution that has to evolve together with the requirements of the Western geopolitical orientation. As soon as we realize the potential of this principle, we will be able to leave far behind our back the wall that was mentioned at the beginning and that had stuck Ukraine in time and in between various civilisations.

Dr. Dainius Žalimas
President of the Constitutional Court of the Republic of Lithuania
Professor at the Mykolas Romeris University (Vilnius)


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