Constitutional reform

1. Evaluation of reform policies of the Parliament and Government during the period of September 2019 – January 2020 and its compliance with the Toronto Principles (based on the analysis of the Government Program, the plans of the ministries and the adopted/rejected regulatory acts)

September 2019 – February 2020 can be considered as a period of constitutional turbulence.

On 29 August 2019, the first day of work of the Verkhovna Rada (hereafter – the Parliament) of the IX convocation, the President of Ukraine submitted seven bills amending the Constitution of Ukraine, each of which concerned specific aspects of the constitutional status of Parliament and the President. The bills were neither systematically linked, nor provided an alternative solution of resolving any of the problems. However, put together, they introduced a strong imbalance into the current mixed form of government in Ukraine due to the strengthening of the President and gradual weakening of the Parliament. These bills were initiated without any prior discussions with civil society, and the concept (vision) of constitutional reform was never prepared or presented by the government. All constitutional initiatives (except for the bill to abolish the advocates’ monopoly) were largely populist and contained a number of legal issues and pitfalls.

As of July 2020, three bills out of seven received a negative opinion from the Constitutional Court of Ukraine (CCU), two – positive opinions with reservations (legal positions) and two more – positive opinions without any reservations. On 14 January 2020, the Parliament previously approved bills that did not receive reservations from the CCU – on the abolition of the advocates’ monopoly (No. 1013) and the advisory, consultative, and other subsidiary bodies of the Parliament (No. 1028). Furthermore, on 4 February 2020, it approved the bill to reduce the constitutional composition of the Parliament (№ 1017), without considering the CCU's reservations on the bill. As the third regular session of the Parliament ended on 17 July 2020, and MPs did not consider the bills № 1013 and № 1028, which were voted on during the previous session. Thus, they can no longer become a legal body of the Constitution of Ukraine and are therefore considered not adopted. As for the draft law № 1017, previously approved at the third session of the Parliament, although it may be adopted at the next regular session (starting on September 2020), today there is no sufficient support for the idea of reducing the constitutional composition of the Parliament by the MPs (for the final adoption of such a law, at least two-thirds of the votes of the constitutional composition of the Parliament are required), therefore, it is unlikely that t bill № 1017 will become law.

It is important to note that the Parliament in record time (preliminary approval of the bill on 30 August 2019, and final approval on 3 September 2019) amended the Constitution of Ukraine to abolish parliamentary immunity, which entered into force on 1 January 2020. Due to the fact that the Parliament made a number of procedural violations while adopting this constitutional change, on 31 January 2020, 50 MPs appealed to the Constitutional Court to declare the law unconstitutional. Currently, the Constitutional Court has opened a constitutional proceeding on the case, and from 29 April  2020, the case is being considered by the Grand Chamber of the CCU.

In December 2019 – January 2020, the President twice amended and twice withdrew the bill amending the Constitution of Ukraine on decentralization, which was his eighth constitutional initiative in the Parliament of this convocation. Similar to the previous documents, this bill was also deficient in terms of legal writing, and since it was prepared without any prior discussion with citizens, both editions have caused considerable public outcry. On 17 January 2020, the President of Ukraine withdrew the second revised version of the bill. During the third session of the Parliament, he did not introduce a new version of the bill, so we hope that this would happen at the fourth session of the Parliament, and the text of such a bill would account for the proposals and recommendations received during this year's public and expert discussions.

2. Current challenges / issues in the relevant policy area

The following challenges / problems can be identified in the constitutional process of Ukraine:

1. Lack of conceptual vision of constitutional initiatives submitted to the Parliament. At the same time, the constitutional initiatives of the President of Ukraine are selective, systematically unrelated and introduced by seven different bills (not account for the constitutional changes regarding decentralization).
2. Preparation of constitutional changes in the closed mode – bills to amend the Constitution of Ukraine are prepared by the government without any prior discussion with the expert community and civil society. This leads to an extremely ambiguous assessment of constitutional innovations (especially in the circles of experts and international partners) and, apparently, to the poor quality of the documents, which is confirmed by the negative conclusions and reservations of the CCU.
3. Constitutional populism is evident. The process of initiating, developing and amending the Constitution of Ukraine is highly dependent on changing political interests, without the aim of ensuring constitutional order and developing state-building processes in Ukraine, and without considering the recommendations of the Venice Commission. Simple solutions that do not solve the complex problems of the functioning of the state mechanisms in Ukraine are often offered. The consequence of such an approach to the amendment of the Constitution of Ukraine is the depreciation of the constitutional law as the foundation of the rule of law and the value framework of the society.
4.  There is no attention to the problem of disbalance between branches of power that has been put on the agenda since the Revolution of Dignity and so far, has not found a logical solution in carrying out comprehensive constitutional reform to improve the mixed form of government. The proposed constitutional initiatives bring a significant imbalance to the system of state government and, instead of strengthening the existing parliamentary-presidential republic, set negative tendencies to strengthen the presidential power in Ukraine and weaken the independence of the Parliament. At the same time, history shows that a strengthened (or excessively strong) institution of the president generates authoritarian tendencies and often causes crisis in the decision-making triangle (President – Government – Parliament).
5. Poor quality of the text of bills in terms of legal writing – bills initiated by the President of Ukraine have significant legal shortcomings, contribute to the appearance of conflicts in the legal regulation of social relations, contain contradictory and ambiguous rules.
6. The Parliament ignores the CCS's reservations about the initiated constitutional changes, which is unacceptable in a democratic society. Such a practice puts Ukraine in the eyes of developed democratic partner countries on a par with semi-authoritarian regimes with weak institutions, which negatively affect the level of international support that the country needs in the face of armed aggression by Russia.

3. Recommendations for priority actions in 2020-2021, in particular, for the agenda of Parliament's second session

We recommend to the MPs of Ukraine, the President of Ukraine, and the Cabinet of Ministers of Ukraine to:

• strictly adhere to the Constitution of Ukraine in the exercise of their powers;
• constantly consider the legal positions of the Constitutional Court while considering and adopting decisions on draft laws on amendments to the Constitution of Ukraine;
• to abandon the practice of selective, unsystematic constitutional changes without a real concept (vision) of constitutional reform and its results;
• to create an inclusive, efficiently functioning parliamentary group to prepare comprehensive constitutional reform to improve the mechanism of state power, to strengthen parliamentarism, as declared by the Parliament after the Revolution of Dignity, in particular after the return to the Constitution of Ukraine of the 2004 edition on a political and legal way;
• to complete the decentralization reform by enshrining in the Constitution of Ukraine a new administrative and territorial system and strengthening local self-government, in particular by establishing financial guarantees for its implementation.