The restoration of the 2004 version of the Ukrainian Constitution has been one of the key legal outcomes of the Euromaidan. IMR Advisor Ekaterina Mishina examines the document’s history and shows why it was so important to restore this particular version of the Ukrainian Constitution.
Media coverage of the situation in Ukraine most often uses the words “Crimea,” “referendum,” “nationalism,” and some others that one does not even want to repeat. “Legitimacy” and “constitutionality” are frequently heard in news broadcasts at well. The process of constitutional change in Ukraine has been rather remarkable. The writing of the modern Constitution of Ukraine took five years, from 1991 to 1996, and was carried out by expert representatives of the community with the assistance of a number of international specialists in the sphere of constitutional law.
There was no question of continuity, since the majority of the earlier versions of the Ukrainian Constitution were of a socialist nature. There was no point in using the 1710 constitution of the army of Zaporozhye, although from the point of view of historical importance, this document, which limited the powers of the hetman (the Ukrainian military leader and head of state), established a representative body that was to meet three times a year, and guaranteed a list of “rights and freedoms of the army,” is to a certain degree similar to the Magna Carta.
Nor was the 1918 Constitution of the People’s Republic of Ukraine an acceptable option: though adopted by the Central Rada of Ukraine, this document, which guaranteed the principle of separation of powers and established Ukraine as a parliamentary republic, never actually went into effect because of the revolution that swept through the country. As a result, on June 28, 1996, Ukraine adopted the new Constitution, which established the constitutional model with a strong presidential power. However, according to a number of experts, in spite of all efforts, the final text of the 1996 Ukrainian Constitution was far from perfect. There were rumors that the text contained more than 170 mistakes. Also, the implementation of the Ukrainian constitutional model resulted in a concentration of power in the hands of the president and in constant legislative-executive confrontation.
In 2004, on the wave of the Orange Revolution, a number of amendments were introduced to the Constitution that were later labeled “constitutional reform.” These amendments were directed at weakening the power of the president, vesting considerably expanded powers in Parliament and the government, and transforming Ukraine into a parliamentary republic.
Many saw the constitutional reforms as the result of a political compromise. These alterations also gave rise to criticism by the Venice Commission. According to Article 159 of the 1996 Ukrainian Constitution, “a draft law on making amendments to the Constitution of Ukraine shall be considered by the Verkhovna Rada of Ukraine upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of such draft law with the requirements of Articles 157 and 158 of this Constitution.” Despite the fact that according to the Constitution, constitutional alterations cannot be made without the participation of the Constitutional Court, this body was left out of the process of amending the Constitution.
Soon after Viktor Yanukovych was elected president of Ukraine, the Constitutional Court suddenly realized—almost six years after the 2004 constitutional reforms—what raw treatment it had received and repealed the constitutional amendments.
In its October 11, 2004, opinion on the amendment of the Constitution of Ukraine, the Venice Commission repeatedly expressed its concern about the open disregard for the role of the Constitutional Court in the reform process and emphasized the necessity for that body to present its opinion in accordance with the existing Constitution. The Parliamentary Assembly of the Council of Europe (PACE), for its part, called on Ukrainian political forces to “resume work on the improvement of the Constitution of Ukraine and the related legislation in order to finally establish an effective system of checks and balances and bring constitutional provisions into line with European standards. Constitutional reform should be part of the discussions aimed at the resolution of the current political crisis”.
PACE found a number of the new provisions, such as the imperative mandate (which allowed political parties to recall representatives), absolutely unacceptable in a democratic state and strongly recommended that these provisions be brought into accordance with the recommendations made by the Venice Commission in 2004. Moreover, PACE expressed the hope that the Venice Commission would be actively involved in the process of drafting proposals for the next steps of Ukrainian constitutional reform.
Those next steps, however, not only shattered the hopes of PACE and the Venice Commission but also led to new problems and disappointments. Soon after Viktor Yanukovych was elected president of Ukraine, the Constitutional Court suddenly realized—almost six years after the 2004 constitutional reforms—what raw treatment it had received at the time. In a September 30, 2010, decision, the Constitutional Court declared the December 8, 2004, Law No. 2222, which authorized the reforms, unconstitutional and thus repealed the constitutional amendments.
This legal pirouette overwhelmed even the experienced Venice Commission, which was chastened by recent events regarding the Constitutional Court of Kyrgyzstan (in 2007, the Kyrgyz Constitutional Court declared unconstitutional the entire text of the nation’s constitution, and in return, the resourceful Parliament passed a no-confidence motion against that body—an unprecedented act, since Parliament had no authority to take such a step). In a December 17–18, 2010, opinion, the Venice Commission emphasized that the Constitution of Ukraine—both its original 1996 version and its 2004 version—explicitly requires a mandatory preliminary review by the Ukrainian Constitutional Court of any draft law on constitutional amendments.
However, the Ukrainian Constitutional Court has no legal power to review the constitutional amendments once they have entered into force. The Venice Commission considered unprecedented the fact that such far-reaching constitutional amendments, including the change of the country’s political system, were declared unconstitutional by a decision of the Constitutional Court six years after the amendments went into force (Clause 35). According to the same document, “as Constitutional Courts are bound by the Constitution and do not stand above it, such decisions raise important questions of democratic legitimacy. A change of the political system of a country based on a ruling of a constitutional court does not enjoy the legitimacy which only the regular constitutional procedure for constitutional amendment . . . can bring” (Clause 36). However, at the time, the Venice Commission’s concerns remained a problem of the Commission itself, since Yanukovych’s government did not take any of that group’s recommended actions—or rather, it did take action, but in a completely different direction.
On May 17, 2012, the Ukrainian president issued a decree establishing a Constitutional Assembly with the objective of drafting amendments to the Constitution of Ukraine. Opposition parties refused to participate in the work of this assembly, stating that this body did not serve the interests of society but represented a political instrument in service to the current president. The October 2012 parliamentary elections were yet another unpleasant step backward in terms of democratic standards.
Later in 2012, a law on referenda was adopted, according to which amendments to the current Constitution could be made without the participation of the Verkhovna Rada. All these changes of the last several years demonstrate the escalation of authoritarianism in Ukraine, which began when Yanukovych came to power. According to a number of independent experts, the concentration of power in the hands of the president and the manipulation of courts for political purposes upset the system of checks and balances. This growing authoritarianism has created a real threat to the Ukrainian political model that was once characterized by pluralism.
All these changes of the last several years demonstrate the escalation of authoritarianism in Ukraine, which began when Yanukovych came to power. According to a number of independent experts, this growing authoritarianism has created a real threat to the Ukrainian political model that was once characterized by pluralism.
Yanukovych’s refusal to sign the association agreement with the European Union on November 28, 2013, in Vilnius served as proof not only of the unwillingness of the current regime to see Ukraine integrated into the European community but also of growing authoritarian tendencies. This process culminated in the adoption of a package of repressive laws on January 16, 2014, without any discussion in the Rada, which led to active protests by civil society and the recent revolutionary events. The draconian “laws of January 16,” among other things, introduced serious restrictions on holding mass demonstrations, criminal liability for libel, and tough repressions against the media.
On January 22, 2014, an address by Ukrainian lawyers, signed by prominent representatives of the legal profession, was published. This address stated that “the laws of January 16 are an ‘autocratic response’ to the two-month protest demonstrations of the Ukrainian people in support of democratic values. The changes to the legislation were made in an unconstitutional way and directly contradict the principles of the fundamental law, constitutional statutes relating to the rights and freedoms of men and citizens, the conditions and forms of the popular vote, the principles of parliamentarianism, and the fundamental judicial principles; [these changes] should be immediately canceled or officially declared illegitimate”.
On February 21, 2014, the Verkhovna Rada adopted Law No. 4163, which restored the 2004 constitutional amendments and the parliamentary constitutional model. Naturally, criticism is already being voiced on the ground that the adoption procedure was simplified and the law was passed in the first and second readings. Whatever the case, this step made by the Ukrainian Parliament has great symbolic importance, since it heralds great change, and the wind of change is blowing in the right direction.
