Public figure Hennadiy Druzenko: let's change the system, the design of the machine, not the driver

He believes the Constitution works only when it adequately reflects the social contract.

In a new episode of the program "Antypody" on Iceland TV channel, Ukrainian public figure and lawyer Hennadiy Druzenko spoke about the necessary changes to Ukraine's Constitution, illegal armed groups and the ideal sparring partner in the presidential elections.

What should our Constitution look like? First of all, what should be in it?

That's a great question. But the answer lies in a slightly different approach. That is, rather than having me or us or a group of scholars write it, as has always been the case in Ukraine, gather professors of constitutional law there... It won't take root, because a Constitution works only when it more or less adequately reflects the social contract. That which a given society unites around.

We can talk about some very technical norms, especially in the interpretation of the Supreme Court, but the 19th century was exactly two rights. That is, absolute freedom of contract: if we agreed, and you have to shoot yourself there, then that contract is valid. You had the will to sign it. The second was absolute private property. So, two sacred things. That is also where child labor came from.

Agreed? Agreed. Is a person free? Free. In the 1930s, when the Depression hit, a whole constitutional revolution occurred, that is, the state began to evolve. How many hours can one work, what is the minimum wage. And Americans faced a choice: support Roosevelt with these constitutional norms, unusual for America, or support, so to speak, his opponents, the Supreme Court, which repeatedly struck down the basic laws of this new course.

And the fact that Franklin Roosevelt won a second time with the best result in US history says that American society, hundreds of millions of people, supported this constitutional revolution. That is, they supported a new view of what it means to be an American, what it means to be America. So until the basic principles of our social contract are discussed at such a popular level, so that we don't quietly write them in the corridors, in a library or in yet another constitutional commission, it will be a stillborn infant just the same.

If we manage to... Right now, a constitutional process is taking place before our eyes in Chile. We are used to going out with these slogans: away with Yanukovych, Kuchma, Yushchenko, all of them. But the great success of Chile was that the previous president launched such constitutional conversations. People went to villages and towns and began to talk about why this matters. If we adopt such decisions, we will have consequences

And when protests broke out in Santiago in 2019, people went out, seriously, they burned the metro, beat police officers, but they went out with slogans: a new constitution, that is, not away with the president. Let's change the system, that is, the design of the machine, not the driver.

So, enlightenment works. 

Enlightenment works. You just have to first talk with people and explain that this is not esoteric matter known only to professors of constitutional law, but that these things concern everyone. For example, we write a norm about free medicine. It concerns everyone. But in such a poor state, with such a small GDP, at most 5% spent, this kills both patients and medicine, because to buy CT scanners, whether in America or Europe, is a dream. In Ukraine it's even more expensive, because we don't produce CT scanners.

So it's the same, so to speak, million. But if in America 18% of GDP circulates, in Poland 8-10%, that is, in Europe 8-10%, where there is economies of scale, then at 5%, either we actively bring in private money and insurance, or this will simply die. Because you can't survive on 5%. You can force even doctors to work for some symbolic salary, but bandages won't appear.

Right now even in Kyiv, my wife works in children's traumatology, the very thing that should be a holy of holies, patients shout: "Well, it's written in our Constitution that medical care is provided free of charge." And they are right. It is written in the basic law. But no matter how much you write in the Constitution that it is free, bandages, chlorhexidine, that is, basic things, have to come from somewhere. I won't even mention the titanium pins that are used for complex fractures.

And this is an example of how good intentions written into the Constitution destroy the system itself. Because in reality, when you write one thing, and the laws of economics work differently, it turns out that the Constitution lies, that the law doesn't work, and it sets hungry, underpaid doctors against patients who simply want the law to be enforced. 

And how do we close this gap between them? Between reality and what is written. 

Here there is a very simple thing. At one time I thought we should just strike this norm and make fewer social promises. But in a country where most of the population lives, let's say, not well, but in fact poorly, we cannot avoid social norms. But if we write them as guaranteed, that is, such that one can go to court with them, then we are simply deceiving the population, because someone always has to pay. That is, taxpayers.

You have nothing to pay with, and it won't come from nowhere. But in Poland, for example, there are similar norms, but they are written not as a legal guarantee, but as certain guidelines for politicians. When calculating the budget, we must take into account that medicine should be maximally accessible. But not as we have it written, rigidly: "Assistance is provided free of charge." Period. Full stop. You don't need to be a lawyer to interpret that.

But if we set this as political guidelines, then we can really demand at elections that a party, so to speak, spend a little less on defense and a little more on medicine, that's in the Polish version. In the Ukrainian version, it's a little less on the Great Construction and more on medicine, as was the case last year, when they did exactly the opposite. They took money away from medicine for the Great Construction, and people simply died from a lack of oxygen in hospitals. 

There were different versions there too. In the sense that medicine suffered from ineffective management by senior officials, they failed to absorb the medical budget. And we don't know that we have our own nuances with the budget. It's not easy to get it, but it's even harder to use it.

There is one more problem there. That reform called "named after Suprun" always says that money follows the patient. But when you are dealing with an epidemic, money has to come before the patient. Because to prepare an infectious disease hospital, you can't prepare it when the patient doesn't come. You send them to the morgue. That is, a certain number have to go to the morgue, they have to be paid for, then you can bring in oxygen and deliver it to hospitals.

And so this simplified perception of reality led to catastrophic consequences. Or another question. Again, we have a huge veteran community. According to official statistics, that's 410 thousand combat veterans. Plus their families. At least half a million are those who have certificates. Many do not.

Accordingly, the question is this. Article 17 says that defending the Fatherland is the business of every citizen of Ukraine. But Articles 14 and 17 say that the creation of any armed formations not provided for by law is prohibited by law. Moreover, it is criminalized. Look, in 2014 many of my friends ran to the military enlistment offices and stormed them. There they were told: "You're not needed right now, go for a walk."

They create volunteer battalions and, it seems, carry out a direct instruction of the Constitution: defend the Fatherland, because it is everyone's business. On the other hand, no law so far provides that volunteer battalions can be formed. They just took up weapons, and it's not even said firearms, knives, for example, scythes, bows. Arrows. That's all. That is, an illegal armed formation with criminal consequences.

And thank God that the political situation holds back this norm. God forbid that lovers of the "Russian world" return to power someday. The hammer is cocked. All that's left is to press the trigger with a finger. I understand why, politically, Petro Oleksiyovych kept this hook, did not disarm it, did not introduce the law. But again, if you want to defend your Fatherland, Ukraine, against an enemy who will always be, so to speak, stronger, more resourceful, more numerous. The only way is to mobilize the whole people.

That is, so that he knows that there will be territorial defense, guerrilla warfare, and the ground will burn under his feet. As Napoleon said: "Bayonets are good for everything, but it's uncomfortable to sit on them." And this is the main argument of the country in confrontation with Russia. Yes, you will enter, any military analyst will say that, given such an advantage in the air or in the missile forces, yes, you can enter. Only it will be uncomfortable to sit.

But again, our Constitution in fact plays into Putin's hands in this case, because it prohibits any initiative, so that you and I, two people is enough, could unite and go out to defend our home and the borders of Kyiv. 

And that will already be an illegal armed group.

Yes. Look at another option. If we talk about specifics. We have two articles, 13 and 14. Article 13 says that land and subsoil are the property of the Ukrainian people. If we are co-owners, I think we belong to the Ukrainian people. The owner receives dividends from the use of his assets. But we not only don't receive dividends, we receive, so to speak, utility bills instead of dividends.

In Norway this works. All the oil that is extracted goes into a fund, which is distributed among current and future generations. This is the largest concentration of finance in all of Norway. That is, if this is common national property, then as we talk about Article 14, where again this land, everyone has the right to dispose of it, to have it in private ownership. That is, to own, to use, and most importantly, to dispose.

Accordingly, here two norms sit side by side. And if you think it through to the end, they contradict each other. That is, these are separate cases. But what amazes me the most. Look, Article 5, fundamental, about popular sovereignty. That all power to establish and change the constitutional order in Ukraine belongs exclusively to the Ukrainian people. No state authority or official has the right to usurp it.

What is establishing or changing the constitutional order? It is adopting a constitution. Who adopted our constitution? Parliament. No state body, and parliament by definition is our only legislative body, or official has the right to usurp this.

That is, parliament, by adopting a constitution, in which the preamble reads, we, the Verkhovna Rada of Ukraine, on behalf of the citizens of Ukraine of all nationalities. So take and write in Article 5 that it usurped power by adopting this constitution. 

That is, this should have happened at some referendum.

Or throw out Article 5. There are countless constitutions that do not stipulate this popular sovereignty. But you can't say that this right belongs exclusively to the people, and that no body, including parliament, as the only legislative body, can replace the people, cannot usurp this power. Or as in that joke: either put your pants on or take off your cross.

Could it be considered fair if Medvedchuk, let's imagine, is convicted, and the whole circle of people who helped him from power, and that's not only Petro Oleksiyovych... That is, it's some completely collective organism, these are ministers, heads of various departments and so on, completely independent people who issued permits, who signed.

We understand that Poroshenko hardly signed anything personally somewhere, saying please give permission for Ukrzaliznytsia to do this. Could it be considered a triumph of justice if only Medvedchuk suffers from this?

Certainly not. We will punish the consequences and this very tumor, but we will never solve the problem with the cause of this tumor. Because if authorized persons of the state, those who have a diplomatic mandate from the people to govern the state, allow such things. This is the question of who opened the gates through which enemy troops entered. Because someone opened the gates for them. There was no storming. And the question of those who open the gates is much more important than when the enemy enters and conducts enemy combat.

The enemy must be punished, the enemy must be defeated, but there are far more problems with the traitor who was inside. Who from within helped the enemy destroy Ukraine. Therefore I completely agree with this thesis that those who assisted Medvedchuk from within the government, having official governmental powers.

Starting, probably, with some law enforcement officers, the SBU, there, allegedly carried cash, if it is confirmed, up to the president, to whom he repeatedly called, if again it is true, everything we heard at the briefing must bear not only political but, here, precisely criminal responsibility. Otherwise, I have only one version.

If this does not happen, then Petro Oleksiyovych under the sixth president received the role of Medvedchuk. That is, under Poroshenko, Medvedchuk was a very fine sparring partner. He is toxic, a priori unacceptable, but he mobilized his supporters.

That is, this scarecrow, with which he frightened the patriotic voter, that if not me, then Putin in the person of Medvedchuk. I'm the first, even though I am a consistent opponent of Petro Oleksiyovych, but in a choice between Medvedchuk and Poroshenko, I would, of course, be the first to run to vote for Poroshenko.

Accordingly, if Petro Oleksiyovych and the collective, I mean the whole structure of the previous government, does not bear legal responsibility, I draw a very simple conclusion: Zelensky inherited the same logic. For him, Petro Poroshenko with a ceiling of 20% of voters and a huge negative rating is the ideal sparring partner.

So he, it means, keeps him, just as Poroshenko kept Medvedchuk, in order to say at the elections: either me or Petro Oleksiyovych. With a negative rating of 60%, no one will ever win an election, because in the second round people vote against. And then again, the logic of political expediency triumphed instead of the logic of law and justice. And this undermines the very idea of statehood, the very basic structure of the political community. 

So, the fact that Poroshenko is not being served with a suspicion may be a manifestation of this situation?

That is, such an a priori losing sparring partner in the next elections. 

And what motive could Poroshenko have had? If you are proving his guilt in court, the question of motive always arises. 

The first motive. It is well known that Petro Oleksiyovych really likes to be involved in businesses.

That's clear, but without transactions, without recorded increases in assets, this is in no way...

Let's leave this to the investigation, because again, you are asking about versions. It is unlikely that he gave everything to Medvedchuk. 

Do you suppose there could have been some other motive? 

Well, the second one, which I announced, that is, the collective Medvedchuk was the ideal sparring partner. This was Hrynyov's dream to get into the second round. It doesn't matter: Medvedchuk, Boiko, that is, to stoke all this, mobilize the voter, because we saw that the threat did not pass, they reincarnate, like heads growing back on a hydra, and then the patriotic electorate mobilizes, rallies around Poroshenko, and he triumphantly rides into a second term on a white horse.

A joker appeared, that is, the Black Swan Zelensky. Who was in no way connected with Medvedchuk and broke all the plans of all Ukrainian politicians. But again, Zelensky was brought to Bankova by Poroshenko's negative rating. The only negative rating that could have offset Petro Oleksiyovych's negative rating was the negative rating of pro-Russian forces.

Everyone understood that there were many claims against Poroshenko, but this existential threat to Ukrainian statehood was a greater threat. And the choice of the lesser evil was automatic. As soon as some alternative appeared, not tightly connected with Medvedchuk, the logic of voting against worked, and so convincingly that even Petro Oleksiyovych did not challenge the results of the first and second rounds of the elections. 

If Poroshenko is, let's imagine, jailed. In general, is a president who goes to prison a positive story for Ukraine? Even if not Poroshenko. In principle. A president who was jailed. 

One already exists, against whom a sentence was handed down. It's just that hands don't reach to jail him. This is a bad story. In fact, when a president is jailed, it is a bad story, it compromises democracy as such. That is, in fact it says that people are suckers, they elect a person who simply uses their gullibility in order to rob them.

And ultimately this can end with a huge demand for some kind of authoritarian leader who will come and restore order. Which again ends badly for these countries. Therefore in American history, let's say, there were impeachments, almost, not quite an impeachment, but it was very wise. Nixon. The upper house did not vote only because the patriarchs of the Republican Party came to him and said that they would not support him, and impeachment would certainly happen.

He officially resigned voluntarily. But there was an agreement that his successor, the vice president, who would replace him, would immediately pardon him and the matter would be closed. And this was its wisdom. That is, on the one hand, it was officially clean, no one removed charges from him, he was simply pardoned. On the other, it preserved the tradition that presidents do not go to prison.

The dream country of our anti-corruption activists is Peru. Four presidents. Two are in prison, one shot himself when they came for him, one is on the run. That is, all presidents except the current one are corrupt, and they were corrupted by the same Brazilian concern that is building infrastructure there. But this is a very good warning lesson for the country. Presidents are jailed, but the country has not become happier or richer.

When a president is jailed, it is generally bad, especially for immature democracies. But if what is on Medvedchuk's tapes is confirmed, then I see no other way out, because in essence this is not robbing the state, it is not an economic crime, it is treason in its pure form. Simply in order to be re-elected for a second term. This is when the state is traded for one's own political career. And here, if again, 80% of what we heard is confirmed, then there is no choice, it must be jail.