A weaker Ukrainian parliament and de facto presidential system? Zelensky’s constitutional reform initiatives
The Ukrainian parliament recently abolished parliamentary immunity and is considering several constitutional amendments. While some of the proposals, such as provision for popular initiatives, are popular, they have been processed with little public and stakeholder input, lack clarity and could potentially weaken parliament and empower an already powerful president. The Constitutional Court should demand better clarity and coherence and parliament must seek to enhance the legitimacy and quality of the amendments through engaging the public and other stakeholders – writes Julia Kyrychenko.
On 29 August 2019, the first working day of the new Verkhovna Rada (Parliament), newly elected President of Ukraine, Volodymyr Zelensky, initiated eight separate draft laws on amending the Constitution of Ukraine. Seven of the proposals are new initiatives. The initiatives go beyond his election campaign promises where he focused on recall of members of parliament and popular legislative initiatives. The president also supported an old initiative to abolish parliamentary immunity in criminal matters, despite concerns of the Constitutional Court of Ukraine reflected in its Opinion and recommendations of the Venice Commission on the inappropriateness of abolishing parliamentary immunity in a country with unstable democracy, such as Ukraine.
Abolition of parliamentary immunity in five days
President Zelensky made a statement in parliament in September 2019 demanding that parliamentary immunity be abolished, in line with campaign promises. With this purpose, the President supported the draft constitutional amendment initiated by former President Petro Poroshenko.
On 30 August, the Verkhovna Rada preliminarily approved the amendments with the support of 363 deputies, and on 3 September, it amended the constitution eliminating the provision that required the prior consent of parliament to prosecute, detain or arrest members of parliament for criminal offenses. On 11 September, the President signed the amendment. Accordingly, there will be no parliamentary immunity for criminal offenses in Ukraine from 1 January 2020.
Although the abolition of immunity is popular among the pubic, civil society organisations and experts opposed the change as it may adversely affect parliamentary autonomy and, accordingly, democracy, in Ukraine. The existence of parliamentary immunity aims at protecting parliamentarians from unjustified pressure of law enforcement agencies, the prosecutor's office and other entities, which are all accountable to the presidency and may impede the exercise of powers by parliamentarians. Immunity ensures relative balance for the division of powers and checks the possible executive usurpation of the legislative.
The abolition of parliamentary immunity contravened procedural rules and may adversely affect parliamentary functioning and autonomy.
The Venice Commission noted that in a political system with vulnerable democracy, as in Ukraine, the abolition of parliamentary immunity could endanger the functioning and autonomy of parliament, and disrupt the system of checks and balances. The historical tendency of the Ukrainian presidency towards authoritarianism further compounds fears of weakening parliamentary autonomy.
In addition to concerns over the substance of the amendment, parliament violated procedures outlined in the constitution and its Rules of Procedure. The relevant parliamentary standing committee meeting dedicated to the consideration of the draft took place during the intersessional period, when it was not possible to hold working meetings of such committees. In addition, parliament neglected the essence of Article 155 of the Constitution which requires the lapse of a certain time period between sessions approving constitutional amendments.
New constitutional reform initiatives: Defective process, controversial content
The President also tabled seven new constitutional reform initiatives, which civil society organisations and academics did not expect. The proposals were considered quickly without genuine discussion with the pubic and other stakeholders.
Notably, it is unclear why the constitutional changes have not been discussed in the Legal Reform Commission, an advisory body recently established by President Zelensky, after he dismissed the Constitutional Commission (established by the previous President). The composition of the Legal Reform Commission was approved on 7 August, including members of the working group on the preparation of constitutional changes. Priority areas of work of the Commission include the preparation and submission to the president of proposals on amending the constitution and laws aimed at ensuring the implementation of constitutional norms and principles, namely the protection of fundamental rights and freedoms, development of legislation on the organization of the judicial system and administration of justice, and the improvement of criminal procedure laws. Nevertheless, the president's new constitutional initiatives were submitted to parliament without procuring the views of the working group on constitutional amendments or other expert bodies.
The introduction of seven separate draft constitutional amendment laws may undermine overall constitutional consistency.
As a comprehensive constituent agreement, constitutional stability and unity may be better achieved through a more systematic and coherent vision for constitutional reform requiring inclusive engagement of the public and a broad range of stakeholders.
The Ukrainian Parliament has not discussed the proposed constitutional amendments. In accordance with the constitutional procedure, on 3 September 2019, parliament forwarded the proposed amendments to the Constitutional Court to obtain a binding opinion on their compliance with substantive and procedural limitations on amendments.
Weakening of parliament and broadening the powers of the President
Four of the proposed amendments could undermine the authority of parliament while enhancing the position of the already powerful presidency. One of the amendments proposes to reduce the number of members of parliament and consolidate the proportional electoral system. Another would expand the grounds for the early termination of members of parliament. The third amendment deals with popular legislative initiatives. The fourth amendment would empower the president to establish independent regulatory bodies and appoint and dismiss key officeholders.
In combination with the abolition of parliamentary immunity, the proposed amendments could impinge on the autonomy and responsibilities of parliament.
Under the proposed amendments, parliamentarians could be dismissed on grounds of non-personal voting, absence without valid reasons from one-third of plenary parliamentary sessions and/or meetings of the parliamentary committee of which he/she is a member. While these changes may seem genuine, and judicial establishment of the facts is required, the expanded grounds for outright dismissal create possibilities for abuse and may constrain the policy autonomy of members of parliament. Crucially, the position of members of parliament could be ended if the party under whose banner they were elected terminates their party membership or if they do not vote in line with the party on whose list they were elected. This provision enhances the powers of party leaders, especially the ruling party, to maintain its dominance and undermine legislative autonomy.
Moreover, the proposals would reduce the number of members of parliament by one third - from 450 to 300. While this amendment is popular, the transitional provisions as currently drafted could lead to a legislative vacuum. The old parliament would be dismissed at the time of election of the new parliament, before its actual convocation. Revising this gap is necessary to ensure legislative continuity. The draft amendments also leave the regulation of legislative initiatives, including the number of members of parliament who could initiate legislation, to regular laws or the parliamentary rules of procedure.
Similarly, the amendments propose the introduction of a pure proportional electoral system. They nevertheless leave crucial details, such as whether the lists would be open or not, for legislative regulation.
Rather than addressing executive dominance, the proposed amendments could worsen it.
At the same time, the proposed amendments would empower the president to create independent bodies that would regulate, monitor, and control activities of economic entities in certain areas, as well as the National Anti-Corruption Bureau. The president would also have the power to appoint and dismiss the Directors of the Anti-Corruption Bureau, the State Bureau of Investigations, and members of independent regulators, in the manner prescribed by law. As there is no clarity on the requirements and grounds, and considering the dominance of the president’s party in parliament, the implementation of these provisions could further enhance the position of the presidency vis-a-vis parliament.
Overall, the principal challenge in Ukraine remains presidential authoritarianism and broadening the scope of presidential authority through unconstitutional expansion of powers. There is therefore need to balance the branches of power by strengthening parliament and division of executive powers between the president and the government led by the prime minister through restructuring of the semi-presidential system. Rather than addressing executive dominance, the proposed amendments could worsen it.
Popular legislative initiatives
One of the proposed amendments would confer on ‘the people of Ukraine’ a right of legislative initiative, alongside members of parliament, the president and the council of ministers. While the proposal seeks to create additional avenues for policy making, it provides very little details. The absence of detail could undermine the implementation of the provision or enable powerful individuals and groups to bypass parliament on key policy issues. The lack of detail has also undermined debate and discussion on possible implications and modalities of popular initiatives. Parliament should therefore seek to add more details before the final adoption of the proposal.
Abolition of mandatory legal representation in court
A 2016 constitutional amendment guaranteed the independence of the legal profession and required representation by an advocate before courts and in case of prosecution. The proposed amendment would limit the mandatory legal representation requirement to cases of criminal charges. The 2016 amendment was motivated by the need to increase the level of court representation services, regulate access to the legal profession, and enhance the professional level and availability of preventive mechanisms against legal malpractice. Nevertheless, the cost of court representation services has predictably increased. Experts from the Centre of Policy and Legal Reform opposed the introduction of mandatory legal representation due to the anticipated problems of increased cost of legal services, and the shortage of lawyers in rural areas. The proposed amendment therefore corresponds to Ukrainian realities.
Better constitutional implementation but danger of redundancy
One of the amendments would allow the establishment of various ‘Commissioners of the Verkhovna Rada of Ukraine for the Observance of the Constitution of Ukraine and Laws in Certain Areas’. While such entities could enable better implementation and monitoring of constitutional rules, the proposal does not define their exact powers. In particular, it is not clear if this entity would be allowed to submit applications to the Constitutional Court. Moreover, a Commissioner of the Verkhovna Rada of Ukraine for Human Rights already exists, potentially undermining the added value of any new entity. To avoid redundancy and potential conflict of mandate, it is crucial that parliament provides more details and clarity before the final adoption of the proposal.
The final amendment would expressly empower parliament to create advisory, consultative and other supplementary bodies of the Verkhovna Rada within the limits of the funds provided in the budget for exercising its powers. The added value of this proposal is unclear as the plenary parliamentary mandate is assumed to include such power. Indeed, parliament has in the past created bodies corresponding to the characteristics of ‘advisory, consultative and other supplementary bodies’, which still exist. Accordingly, the express authorisation may end up narrowing down the discretion and flexibility of parliament to respond to its dynamic needs. If the intention of the proposed amendments is to constrain parliamentary discretion, more clarity is needed.
Overall, the process through which the various amendments have been pushed was rushed without sufficient opportunities for organised stakeholders and the people to provide their inputs. Perhaps except the amendment to reduce the number of members of parliament, which has popular support, the public are not aware of the content and exact implications of the proposed reforms. The content of some of the amendments are controversial and have generated concerns including from the Constitutional Court of Ukraine and the Venice Commission. In particular, the reform proposals could empower an already powerful presidency and de facto lead to the establishment of a presidential system in Ukraine – as opposed to the formal semi-presidential system. As the Constitutional Court reviews the proposals, it may provide some direction on the areas of concern and need for better clarity.
If the Constitutional Court approves the proposed amendments, the party of the president has the numbers to approve the constitutional amendment with a two-third majority. The ruling party controls 254 of the 450 seats in parliament, which is short of the required majority. Nevertheless, the proposals are likely to receive support from otheraffiliated parties. As the proposals would not affect entrenched constitutional provisions, a referendum would not be required. Nevertheless, to enhance the legitimacy and quality of the amendments and ensure sufficient understanding and clarity on the amendments, parliament should engage the public and other stakeholders and procure submissions on the proposed amendments.
Julia Kyrychenko is the Head of Constitution Law Projects, and a board member of the Ukrainian Centre of Policy and Legal Reform. She is also Co-chair of the board of Reanimation Package of Reforms.