Today, the Constitution of Ukraine celebrates its 28th birthday. Though adopted quite late, as the result of a compromise, it was nevertheless a huge achievement for Ukrainian statehood as of 1996. At the same time, every Ukrainian President and every convocation of the Verkhovna Rada tried (and did so with varying degrees of success) to change the Ukrainian Constitution. The full-scale invasion of Russia (its social, demographic, economic, and political consequences) activated a broad discussion on the need to revise the social contract (these changes, by all means, shall somehow be reflected in the Constitution). Thus, the constitutional discussion continues during the hostilities, and after they end, it moves into the dimension of legislative work. In its research, the Agency for Legislative Initiatives often faced requests for constitutional changes. Therefore, to support constitutional discussions, we suggest making a retrospective journey into the history of the constitutional dimension of our research.
Social sphere: The Constitution guarantees, but is the state capable of ensuring?
The Constitution declares that Ukraine is a social state (Article 1). However, to what extent is this provision realistic? The key problem is that, despite such a declarative norm, the state has little money to implement this. This problem is so obvious that the Ministry of Social Policy of Ukraine officially recognises its existence.
In line with this, the search for a quick way to resolve it looks rather illusory since the Constitution establishes a mechanism that significantly restricts the possibilities of reforming the system of public services. In the context of veteran policy, these norms, together with decisions of the Constitutional Court, blocked the reforms. And this applies not only to veteran policy. A great part of the Constitution of Ukraine comprises such social norms. Another example is medical reform, the unconstitutionality of which the Constitutional Court of Ukraine (CCU) has been considering for several years. When it comes to social and demographic composition, Ukraine of the mid-2020s is very different from Ukraine of the mid-1990s. Under such conditions, social policy shall be flexible and adaptable, which is hard to achieve with current socially oriented prescriptions of the Constitution.
Parliamentary reform: how many issues still need constitutional regulation?
The Ukrainian Constitution features imbalances in terms of the status of the coalition and the opposition. Unlike the term “coalition of parliamentary factions,” the notion of a parliamentary opposition is not enshrined in the text of the Constitution. The opposition shall play an essential role in exercising parliamentary control and constitute an integral part of the parliamentary dialogue. Nevertheless, so far, there are three parliamentary committees headed by representatives of the parliamentary minority: 1) Youth and Sports, 2) European Integration, and 3) Freedom of Speech. These are the least influential committees within the parliament with the smallest scope of responsibility and, accordingly, the smallest workload. Certainly, this situation does not contribute to parliamentary control from the opposition.
During its work, the working group on parliamentary reform faced the need for amendments to the Constitution. Resolving this issue is one of the recommendations of the Road Map on internal reform and increasing the institutional capacity of the Verkhovna Rada of Ukraine (Recommendation 44). There are two possible ways to resolve this issue – either to add the norms on the parliamentary opposition to the Main Law or to remove the norms on the coalition from it.
Restrictions on Legislative Spam
Legislative spam is a well-known problem in the Ukrainian parliamentary system. It replaces high-quality law-making work with the adoption of hundreds of low-quality legislative acts, which need to be amended almost immediately after their adoption and do not have a real impact on resolving social problems. For example, during the recently completed 10th session of the current convocation, 80 draft laws were registered (+20%) more than during the previous similar session. One of the MP groups registered more draft laws than the total Cabinet of Ministers, and the MP’s draft laws were mostly registered by 1-3. All these are clear signs of legislative spam.
One of the priority approaches for overcoming legislative spam is the possibility of introducing a collective legislative initiative of MPs. This decision is often discussed in various working groups. However, implementing such a mechanism may require clarifying the norm of Article 93 of the Constitution.
The norm of this Article establishes that “the right of legislative initiative in the Verkhovna Rada of Ukraine shall belong […] to members of parliament of Ukraine”. That is, MPs as the subject of the legislative initiative are mentioned in the plural. Although previously, this did not prevent MPs from exercising this right individually. Therefore, in the event of any change in the practice regarding the minimum number of MPs who have the right to introduce draft laws, this constitutional norm shall be worded differently. Clarifying its content is to prevent possible contestation of the unconstitutionality of the new requirement to limit individual legislative initiatives.
Signing and promulgating draft laws not signed by the President
What to do if the President of Ukraine does not sign or veto the draft law adopted by the Verkhovna Rada of Ukraine? The problem that such an unsigned draft law was supposed to resolve has not been resolved, but the Verkhovna Rada had already done everything possible. The imperfect wording of Part 3 Article 94 of the Constitution creates specific problems in the legislative process. Thus, this part contains a provision that states, “If the President of Ukraine does not return the law for reconsideration within the prescribed period, the law shall be considered as approved by the President of Ukraine and shall be signed and officially published.” This wording prevents the establishment of a person authorised to sign and publish draft laws that the President has not signed within the 15-day period. During martial law, the President increasingly uses these aspects to avoid signing or untimely signing of draft laws. Thus, during the 10th session of the current convocation, 42% of draft laws were signed untimely or not at all. These indicators increased threefold during the period of martial law.
At the same time, part 4 of this Article does not contain such an imperfection. It clearly stipulates that when the veto is overcome, the relevant law shall be made public by the Chair of the Verkhovna Rada of Ukraine and published with their signature. Drawing a parallel with this provision and taking into account the fact that Article 94 is found in Chapter IV, “Verkhovna Rada of Ukraine,” it is quite logical to assume that the draft law not signed by the President should be signed by the Chair of the Verkhovna Rada. In reality, this logic does not work; if the President does not sign the draft law, then the Chair of the parliament does not take responsibility for signing such acts. Therefore, not to make assumptions, such provisions should be clearly recorded in the Constitution.
Parliamentary committees with the control function
Under Article 89 of the Constitution, “The Verkhovna Rada of Ukraine, for the purposes of law drafting, preparation, and preliminary consideration of issues falling within its powers, and to exercise the supervisory functions in compliance with the Constitution of Ukraine, shall form the Committees of the Verkhovna Rada of Ukraine from among MPs of Ukraine.” This approach established the “universal nature of parliamentary committees. That is, they are simultaneously engaged in legislative work and perform the control function. Problems started when trying to improve the work of the parliament. For example, to bring it to NATO standards, the Verkhovna Rada should create a control committee over law enforcement and intelligence bodies. Such norms have already been included in the legislation; however, in practice, the Committee was not created due to discussion on its unconstitutionality.
Another practical manifestation of this situation consists of limitations in introducing an effective sanction system against violators of ethical norms. Scandals about the unethical behaviour of MPs appear almost every month. The Verkhovna Rada is unable to properly respond to such behaviour because there is no mechanism for self-regulation of their behaviour. This leads to the negativity from a scandal involving one member extending to all MPs, reducing trust in the entire parliament. This problem can be solved by the Code of Ethics of Members of Parliament. Draft law No. 8327 on the Code of Ethics of Members of Parliament was registered in the parliament in late 2022. Experts from the Agency for Legislative Initiatives participated in its development. Among other things, this act proposes to create a committee, the subject matter of which is the issue of monitoring compliance with discipline and rules of parliamentary ethics. However, such an initiative also ran into a discourse on unconstitutionality, although it does not foresee the creation of a special control committee.
Summarising this text, we would like to emphasise that it is not about the Constitution’s shortcomings, the shortsightedness of its authors, or the reforms of recent years. This text concerns the importance of constitutional discourse and its mass nature/popularity for a democratic country. The wider this discourse is, and the more discussion platforms and participants are in this process, the more weight the Main Law itself will have and the more legitimacy will be vested in the state bodies, which is undoubtedly crucially important both for a young democracy and especially for a country at war. And the Constitution, as a certain framework of social relations, shall and will inevitably change along with social relations. The Constitution will most likely change after the end of martial law. This constitutional discussion should define exactly what will be changed, what the new social contract will be, and what form it will take. And the Constitution Day is a good opportunity to think about it.
