Constitutional Adventures

Exactly 24 years ago, the Verkhovna Rada finally adopted the Constitution of Ukraine following the so-called “constitutional night.” For our country, this document was extremely important, because for the first time it definitively delineated the boundaries of the past and future.

First, Ukraine finally turned the page of its Soviet past, and the structure and basic rules of relations imposed by the Communist party had gone into oblivion.

Secondly, the basic rules of our political system were finally defined. For a young country that once again won its independence, the adoption of its own Constitution became a kind of final chord in the formation of a new player in the global political arena.

Force of the Constitution

The Constitution is the document with which all other legal acts must be coordinated. It is the basic law, the law of the laws. This, in turn, means that it cannot be rewritten depending on the change of the political elite. It is this document that unites the history of independent Ukraine into one whole, restrains the radical steps taken by the government and coordinates the past, present and future.

The Verkhovna Rada cannot adopt laws that contradict the Constitution. The Cabinet of Ministers, all courts, the Security Service, the National Police — all Ukrainian public institutions are obliged to carry out their activities and make decisions making sure that these actions are constitutional. It cannot work otherwise. The Constitution itself is also protected, since it is much more difficult to amend it than to finalize any other law. And it takes much longer.

Still Amended

During the entire existence of the Constitution of Ukraine, it was changed not once, but as many as 7 times. And I’m only talking about changes that were made within the law. Overall, there were 9 versions of the Constitution in the 24 years of its existence, and that excludes the process of its original creation.

What was changed?

1996

Ukraine is the last post-soviet country to adopt the Constitution. Even though Leonid Kuchma considered its adoption his unquestionable achievement, it was not so much the President’s will that led to this but rather the failure of then-authorities to distribute the power.

As a result, Ukraine ended up a presidential-parliamentary republic, and Kuchma effectively controlled its government. His main opponent, especially during the President’s second term, was the Parliament deprived of many powers, whose representatives completely disagreed with the one-man decisions of the President. In the end, the people of Ukraine intervened in this confrontation, expressing their discontent during the Orange Revolution.

2004

On December 8, 2004, as a result of political agreements between then-President Kuchma and future President Yushchenko, the Parliament voted for amendments to the Constitution and the electoral law. Ukraine would become a parliamentary-presidential republic, which significantly changed the decision-making power.

This was the first obvious amendment of the Constitution to fit the new expected political reality. Later, in 2006–2009, representatives of the Party of Regions (Viktor Yanukovych’s political party at the time) supported the reform multiple times, since this form gave them more opportunities to keep the power in their hands. However, in 2010, when the administration changed, things changed again.

2010

Viktor Yanukovych won the Presidential election and later, 252 MPs, primarily members of the Party of Regions, ask the Constitutional Court to cancel the constitutional reform of 2004. Indeed, why would the president share his power with the Prime Minister and the Parliament if he can keep it to himself?

The Constitutional Court decision came soon enough: on September 30 of the same year it was found that the constitutional reform was passed with procedural violations; namely, the latest constitutional amendments were passed without a Constitutional Court opinion. Logically, this decision was completely strange, since the country had used the amended law for the past six years. As a result, Ukraine went back to the 1996 version of the Constitution, and Yanukovych obtained the coveted power.

2014

The end of 2013 and the beginning of 2014 are already called one of the most tragic periods in the history of Ukraine. The Revolution of Dignity was a manifestation of Ukrainians’ response to president Yanukovych’s turn to Russia and ended with dozens of people killed in Maidan Nezalezhnosti.

The president’s abuse of power and the bloodshed of that winter led to restoration of the 2004 Constitution on 21 February by 386 MPs. This was mainly stipulated by the need to maintain the power in the country after the administration effectively fled the country while Russia was starting to occupy Crimea. In recent history, it was the first time that the Constitution was amended not to redistribute influence between the branches of government, but to actually preserve the country.

2019-2020

2019 put us face to face with a new reality. The Presidential and Parliamentary elections were won by a team that had not previously been seen in politics. Having declared a course for rapid reforms, the MPs set about writing laws and, of course, changing the Constitution.

The most recent change to the Constitution was the abolition of MP immunity. Even if the result was not quite as promised, this amendment was really needed.

What’s next? Recently, it seems that it is not necessary to amend the Constitution; you can just forget what’s in there. For example, the new team practically ignores Article 6 of the Constitution, according to which power in Ukraine is exercised on the basis of its division into legislative, executive and judicial branches. Almost every day, we observe Volodymyr Zelenskyy play the role of the “single source” of political decisions. He is gaining more and more powers not included in the Constitution, while the Parliament seems to be playing a secondary role. All personnel decisions, political statements and reform projects come from the Presidential Office, just like in Kuchma times.

Does this mean that the Constitution will be amended again?

Might happen. The people in power do tend to change laws however they like. The Constitution is a law, too. The document passed in 1996 kind of lives its own life, but it always comes back.

The President is supposed to protect the Constitution, not manipulate it however he likes. If he doesn’t do it, the Constitution will magically find a way to protect itself.