Ukraine: Once Again at Constitutional Crossroads

On Tuesday, March 3, Ukrainian President Petro Poroshenko signed a decree to establish a Constitutional Commission to propose amendments to the Constitution that would address “modern challenges and needs of society”. The President emphasized that the formation of such a commission was a “very important phase of constitutional reform”.

The President promised to establish the Constitutional Commission one month ago, on February 2, during a meeting of the National Council of Reforms. He stressed that the issue of decentralisation should be discussed among the political forces represented in the Verkhovna Rada (the Ukrainian parliament) – which, among others, raises questions on whether or how separatist forces in the East of the country will be included in discussions.

In order to better understand the decision to establish this Commission, it is helpful to also refer to previous constitutional reform initiatives.   

Shortly after elections in July 2014, the President submitted a constitutional amendment bill to the Verkhovna Rada. At the same time, these draft amendments were forwarded to the Venice Commission with a request to deliver an opinion “in the shortest time possible, in view of the need to consider this document during the current session of the Verkhovna Rada.” In its conclusions, the Venice Commission stressed that the draft amendments shifted the power from the Verkhovna Rada to the President and criticised the initiative for a lack of civil society involvement into the drafting process. In any event, the Verkhovna Rada never considered the amendments, and Poroshenko called the draft law back in late December 2014.

Another event that sheds light on the Constitutional Commission initiative is  the Second Minsk agreement of February 11, 2015, which established a new ceasefire between the government and rebel forces. This new package of measures is designed to revitalise the Minsk Protocol of September 5, 2014 and demands constitutional reform in Ukraine, “with the new Constitution to come into effect by the end of 2015.”

The establishment of the Constitutional Commission might be seen as a first step towards compliance with the state’s obligations under the Second Minsk agreements. At the same, time, this presidential initiative is also driven by the earlier pledge to remedy the shortcomings of the draft amendments from July that did not find any support in the Verkhovna Rada and led to criticism by the Venice Commission. With this in mind, Petro Poroshenko opted for establishing a Constitutional Commission to involve the wider community in constitutional deliberations.  

Third time’s a charm?

The establishment of the Constitutional Commission as an advisory body to the President with the purpose of proposing amendments to the Constitution is not a novel idea for Ukraine. Previous Presidents – Viktor Yushchenko and Viktor Yanukovych – also turned to this very option to bring about constitutional reform.

The first attempt to make the idea of a Constitutional Commission work was made by Viktor Yushchenko after the constitutional reform of December 2004, in the midst of the Orange Revolution. The 2004 constitutional amendments entered into force in the beginning of 2006. They weakened the powers of the President, in particular through the abolition of the power to dismiss the Government. The amendments, however, did not manage to eliminate the overlap between presidential powers and powers of the Cabinet of Ministers, and thus contributed to conflict between institutions making efficient government difficult, if not impossible.

In November 2006, Viktor Yushchenko established a Commission to draft the constitutional amendments. The work of that Commission had not been successful, and after the political crisis of 2007 and subsequent parliamentary elections, the President revived the idea of constitutional reform and established the National Constitutional Council. The aim of this advisory body was to draft and introduce pivotal and complex changes to the Constitution. Although the President chaired the Commission and appointed its members, the latter was supposed to include the representatives of political parties, both represented and not represented in the Verkhovna Rada, representatives of regional and municipal authorities, civil society and constitutional law experts. It was envisaged, as per the constitution amendment procedure, that constitutional changes would require both parliamentary and popular approval. Unfortunately, the Council soon became dysfunctional: the representatives of major opposition parties criticised the President and resigned from the Council. The President prepared his own draft amendments that he submitted to the Verkhovna Rada in March 2009 and asked the Venice Commission to again assess the draft. The assessment of the Commission was mixed: the Commission welcomed the developments regarding the judicial system and prosecution service but criticized the draft for proposing a very rigid amendment procedure and maintaining the semi-presidential model with the potential of inter-institutional conflict. The vote to add the presidential draft to the agenda failed twice in the Verkhovna Rada in 2009, and the following political change put an end to Viktor Yushchenko’s constitutional reforms.

The beginning of Viktor Yanukovych’s term in office marked a new phase of constitutional development in Ukraine. The Constitutional Court found that the amendments of 2004 were unconstitutional, a decision that the Venice Commission called “highly unusual” given that the constitutional reform of 2004 had been extensive and its results were annulled after a period of several years. Although the President dissolved the National Constitutional Council in April 2010, in 2012 he came up with essentially the same idea of establishing an advisory body to prepare constitutional amendments but under a different name – this time the Constitutional Assembly. Yanukovych appointed former President Leonid Kravchuk as the chair of the Assembly, but nevertheless the opposition saw this body as politically dependent and refused to collaborate.

The assembly produced draft amendments to the Constitution concerning guarantees for judicial independence and a list of changes to the Constitution that were both submitted to the Venice Commission for opinion. The latter in its assessment “re-emphasize[d] the need for a broad-based drafting process and for deliberation on major constitutional reform, as well as the approval of such a reform.” However, the Constitutional Assembly, just like the National Constitutional Council, did not manage to initiate the consolidated constitutional change.

This historical brief allows us to conclude that the current Constitutional Commission shares a number of common characteristics with the initiatives mentioned above (the National Constitutional Council of 2007 and the Constitutional Assembly of 2012):

• It is established as an advisory body to the President;
• The President appoints its members;
• It is supposed to engage the public, involve civil society organizations and international actors in the consultation and drafting process (whether previous bodies managed to meet this requirement in full is questionable);
• The body is chaired by politicians/public figures (allegedly) independent from the President (although this was not true for the National Constitutional Council of 2007, which President Yushchenko chaired himself).
• Its role is to prepare draft law(s) on amendments to the Constitution of Ukraine;
• Draft amendments are supposed to be submitted by the President of Ukraine to the Verkhovna Rada through the procedure enshrined in Section XIII of the Constitution.

Following the footsteps?

Thus, recent efforts for constitutional reform have failed under similar processes to the one envisioned now by Poroshenko. The question is whether this process might be more successful?

One reason to hope so is that never before has the matter of constitutional reform in Ukraine been linked to the issue of the peaceful existence of the society. This should urge different political and civil society actors to collaborate effectively to bring about real change.  It seems that the advisory commission has been proposed by Poroshenko with the hope that it can provide a forum for political negotiations and debate in a more closed and controlled setting before any proposed amendment reaches the more public and polarized atmosphere of the Verkhovna Rada. Further, the Commission’s inclusion of legal and political experts should give the body more professional legitimacy, and broad consultation of the public should respond to previous criticisms of the Venice Commission as well as adding to the legitimacy of the Commission’s recommendations.

In terms of challenges, as well as the obvious political obstacles, it is important to also consider the temporal limitations. As was mentioned above, the Second Minsk agreements require the “new Constitution” to be adopted by the end of 2015. The Venice Commission has also encouraged Ukrainian authorities to have the amendments adopted in the second reading in September with the aim “to clarify the composition and powers of local and regional authorities before the October municipal elections.” Moreover, to comply with the constitutional amendment procedure, the Verkhovna Rada would need to vote on the draft amendments and request the Constitutional Court’s opinion before the end of the Spring Session for the amendments to be presented for the super-majority vote in the Fall. This timeline seems ambitious. Temporal limitations may compromise other objectives of the Constitutional Commission – particularly the in-depth deliberation and the involvement of the general public.  

The Devil’s in the Details

The presidential initiative raises a number of questions yet to be answered, including the scope of the envisaged constitutional change, the composition of the Commission and its procedures, to name but a few. 

Clearly, the President and other political actors understand that it is not possible to initiate and complete far-reaching constitutional reform before the end of 2015, let alone October 2015. It seems that the initial idea of the President regarding the structure of executive-legislative relations has been dropped, and amendments will not touch upon this issue. The main issues before the Constitutional Commission include:

• decentralization;
• the Judiciary (appointment of judges, the composition of the High Judicial Council, immunity of judges etc.);
• the Prosecution Service.

While the reform of the judicial system and the prosecution service have been on the table for quite some time now, the issue of decentralization is a relatively novel point in the agenda. It is true that the Second Minsk agreements link the constitutional reform to the issue of the “special status of certain areas in the Donetsk and Luhansk regions.” Yet, neither the President nor the newly appointed chair of the Constitutional Commission have specifically addressed the sensitive issue of the Eastern part of Ukraine. Volodymyr Groysman, the chair of the Constitutional Commission, while talking about decentralization, mentioned the Polish example but did not elaborate on the issue further.

The Second Minsk agreements also require that the special status of the Eastern territories should be addressed through the participation of the representatives of the respective areas. This raises a legitimate question of whether such representatives are to be expected to appear as members of the Constitutional Commission. And if they are to be included, whether the requirement of a majority vote at the Commission meetings would put the minority groups in a disadvantaged position?

There is no doubt that the majority vote is hardly a suitable tool to reach consensus, which the Commission is arguably established to do. Yet, it will hardly affect the representatives of the East, as it is difficult to imagine the inclusion of representatives of separatist movements into the Constitutional Commission for many reasons, including the political costs for the President in making such appointments. Also, while talking about the composition of the Commission, Petro Poroshenko mentioned that he would guarantee that its future members would be the best experts and the most respected politicians. He linked this to the objective of uniting the Verkhovna Rada, where the amendments should receive cross-party support. Pushing draft amendments through the Verkhovna Rada seemed an unsolvable issue for previous Presidents, and inclusion of representatives from separatist movements may further complicate what is already likely to be a difficult political negotiation. However, this must be balanced with the concern that any constitutional change, which does not take into account the demands of the entire population is unlikely to last. 

It is hard not to agree with the Venice Commission’s statement regarding “[t]he need for constitutional reform in Ukraine [being] obvious and urgent. A constitution, however, is not only a temporary political act: it is the legal foundation of the state. Amendments to the constitution should be sustainable and the constitution should be stable also in the longer perspective.” However, the opportunities to achieve these objectives are limited in Ukraine. Poroshenko needs political consensus on constitutional change, but consensus requires time – something Ukraine does not have.

Maxim Timofeev is an Associate Professor at the Department of Law, European Humanities University (Vilnius, Lithuania), with a primary research and teaching focus on public international law and human rights law.

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Available on ConstitutionNet: Presidential Decree No. 119/2015 on the Constitutional Commission of Ukraine (in English)