Constitutional Traditions of Ukraine and Pylyp Orlyk

By Dr. Olena Bordilovska

On June 28, 1996, the Verkhovna Rada (Parliament) of Ukraine adopted the Fundamental Law of our state – the Constitution of Ukraine, which entered into force on the same day. Since that time, it is a state holiday in Ukraine.
In fact, Ukrainian constitutional tradition has a longer story which deeply rooted in the character of Ukrainians, freedom, and democracy lovers.

310 years ago, Hetman (Leader of Ukrainian Cossacks) Pylyp Orlyk signed the document “Pacts and the Constitution of Rights and Freedoms of the Zaporizhian Army.”

Then the Basic Law was approved at a meeting of the Cossacks near the town of Bendery in Moldova. The Ukrainian Constitution was the first in the world to divide power into three branches: legislative, executive, and judicial.

Pylyp Orlyk

Orlyk’s Constitution witnessed the old democratic traditions of Ukrainians – this document appeared 77 years earlier than the American Basic Law and 81 years earlier than the Polish Constitution.
Pylyp Orlyk was born on October 11, 1672, in the town Kosut, Oshmyany district, Vilno region (now the territory of Belarus) and died in Yassy (now the territory of Romania) on May 26, 1742. He was an officer of the Zaporizhian Army, general secretary, hetman of Ukraine (in exile), a diplomat, and closest aide to Hetman Ivan Mazepa.
Pylyp Orlyk studied at the Jesuit College in Vilno, and later – at Kyiv-Mohyla College, one of the first educational institutions in Europe. In 1699 he became a senior military clerk and regent for the General Military Chancellery of the Zaporizhian Army, and since 1706 served as Secretary-General. In this position as a Mazepa’s closest aide, he facilitated Mazepa’s secret correspondence with Poles and Swedes and helped Mazepa with the formation of an anti-Russian coalition.
After the defeat at the Battle of Poltava in 1709, Orlyk, together with Hetman Ivan Mazepa and King Charles XII of Sweden, moved to Bendery (modern Moldova). Mazepa died shortly after, and Pylyp Orlyk was elected Hetman of Ukraine (in exile). The election took place in the presence of the Cossacks, the leadership, the Cossacks, as well as the allies – the Turkish sultan and the Swedish king.

The Ukrainian Constitution was the first in the world to divide power into three branches: legislative, executive, and judicial

While in Bendery, Orlyk drafted the “Pacts and Constitutions of the Rights and Freedoms of the Zaporizhzhya Army” and concluded an agreement with the officers – the Cossacks, a document that later became known as the Constitution of Pylyp Orlyk. This so-called “Bendery Constitution” is considered to be the first Law of the Ukrainian nation, as well as one of the first constitutions in Europe.

What is more, Pylyp Orlyk’s Constitution is the first constitution in the world that establishes the division of state power into legislative, executive and judicial – now it is a common norm. The document consists of a preamble and sixteen sections. According to the constitution, legislative power is delegated to the General Council, which acts as the parliament. The General Council has to work in sessions three times a year. The highest executive power was performed by the Hetman together with the Council of General Officers, and all legal matters should go under the jurisdiction of the General Court. Thus, the Ukrainian constitution of 1710 preceded the constitutions of the United States, France, and Poland and reflected the progressive democratic intentions of the Cossack elite.
It is worth noting that Philip Orlyk lived in Sweden for a long time. From 1716 to 1719 – in Kristianstad, and 1719 to 1720 – in Stockholm. In 2010 The Swedish National Archives in Stockholm, as well as Ukraine, Canada, and other countries, celebrated the 300th anniversary of the Bendery Constitution with a wide range of events, mentioning the first and most progressive constitution of the time, and the outstanding contribution of Philip Orlyk, Hetman of Ukraine to European history.
P. Orlyk left a great written legacy: a personal diary (“Diary of a Traveler”), letters to the rulers of Europe at that time, also – treaties and declarations. Among others, there are two extremely interesting documents that characterize not only him as a political thinker, but the level of a political culture of the Cossack elite in exile – the “Manifesto to European Governments” and “Withdrawal of the Rights of Ukraine”. These documents can help us to understand the way of Cossack’s thinking and their considerations on the role and purpose of Ukraine in the then European political space.
Still, his most important written work was certainly the so-called “Bendery Constitution”, written by him in co-authorship with other representatives of the Cossack officers. This monumental paper not only absorbed the advanced achievements of Ukrainian and European political thought, but also became a new step in their development. Orlyk’s Constitution is the philosophy and ideology of the “social contract” embodied in the language of legal norms. There were enough grounds for the appearance of such a document in the history of Ukrainian political and legal consciousness.

Most of the provisions of this document are conceptual in nature and reflect the peculiarity of Ukrainian political thinking in the early XVIII century. The Constitution, in fact, is an agreement of the hetman with the officer and the entire Zaporizhian Army, and by content – a document that in political and legal terms justifies the rights of Ukraine to be an independent state.
Pylyp Orlyk and the Cossacks leaders sought to combine fragments of their past and develop a model of society that would include the most important achievements of the nation. The ideas expressed in this document are the result of almost a millennium of political development of Ukraine, evidence of the high level of self-awareness of the nation, also the level of its political culture, as well as creative potential.
The oath of hetman Pylyp Orlyk and the “execution diploma” (confirmation) of the Swedish King Charles XII were to guarantee the observance of the inviolable civil liberties enshrined in the Constitution. Ukraine’s foreign policy was to be based on good neighbourhood and mutually beneficial cooperation with other countries, and Chapter II of the Constitution in its original text formulated the principle of sovereignty of Ukraine and inviolability of its borders.
Unfortunately, more than three decades of his life, severe struggle and long wandering in exile did not bring P. Orlyk the expected result – Europe did not want to confront the Russian Empire to realize the rights of the Ukrainian people to get an independent state. And yet his efforts were not in vain – his political legacy was a testament to the political maturity of the entire Ukrainian nation and his ideas became the basis for the further theoretical search of Ukrainian political thinkers of state orientation. Moreover, it witnessed the democratic character of the entire Ukrainian nation. Thus, Pylyp Orlyk Constitution became an important pillar in the further development of the Ukrainian statehood idea, a kind of symbol of the struggle for the creation of an independent Ukrainian state.
From the Pylyp Orlyk’s Constitution:
(some samples)

Chapter I:
“Whereas among the three theological virtues faith is the first, one should in this first article deal with the Orthodox faith of the Eastern confession, with which the valiant Cossack people was enlightened under the rule of Khazar princes by the Apostolic See of Constantinople, and to which it has remained unwaveringly faithful then and now, without straying from it to any alien religion. It is no secret that Hetman Bohdan Khmelnytsky of glo¬rious memory, with the Zaporizhian Host, took up arms and began a just war against the Polish Commonwealth for no other reason (apart from rights and liberties) except their Orthodox faith, which had been forced as a result of various encumbrances placed on it by the Polish authorities into union with the Roman church…”
Chapter II
“Every state emerges and exists due to the inviolability of borders. And the territory of our Motherland should not suffer either from an attack or from an illegal decision within its borders, which are enshrined in treaties with the Polish-Lithuanian Commonwealth, the most powerful Ottoman Porte and the Moscow Empire. And first of all (so as not to violate the border) on the river Sluch (which defines the territory), which was annexed by Bohdan Khmelnytsky from the Commonwealth to the property of the Hetmanate and the Zaporizhian Army, forever returned and established on the basis of agreements”…
“…It is equally necessary for the clairvoyant Hetman to beg His Royal Majesty King of Sweden to include in his majesty’s treaties with the Moscow Empire the condition of releasing after the war our prisoners in the Moscow Empire, as well as full compensation for all the losses caused to Ukraine by hostilities…”
Chapter III:
“Whereas the people formerly known as the Khazars and later called Cos¬sacks trace their genealogical origin to the powerful and invincible Goths, and, moreover, whereas the laws of friendly neighbourhood connect and join together that Cossack people by the deepest ties of affectionate affin¬ity to the Crimean state, with which the Zaporizhian Host many a time entered into military alliances, and from which it obtained assistance for the protection of its fatherland and its liberties…”
Chapter IV:
“If autocratic states maintain in both war and peace the praiseworthy and useful practice of holding private and public councils to deal with matters important for the general welfare of the country, in which even the autocrats themselves take part and do not hesitate to comply with the joint opinion and decision of their ministers and advisers, why cannot such a beneficial system be maintained by a free people? Indeed, such a practice was formerly maintained and continued in the Zaporozhian Host under the rule of hetmans in accordance with old rights and liberties…”