Ukraine has relatively recently embarked on a path of democratic reform. The process of changing the legislation has revealed many shortcomings in the Constitution. Many democracies once faced similar challenges. However, full-fledged constitutional reform has not taken place in Ukraine in 25 years.
Our Constitution has been changed 8 times – in 2004, 2010, 2011, 2013, 2014, 2016, 2019 (twice). For the most part, these changes were aimed at addressing existing weaknesses, but they often created new ones. And in 2010, the Constitutional Court illegitimately reinstated the previous version of the Basic Law, which was redressed in 2014 during the Revolution of Dignity.
Now Ukraine is a mixed (parliamentary-presidential) republic. But the vague and sometimes contradictory provisions of the Constitution cause conflicts between different institutions of power, which are most evident in the triangle “President – Government – Parliament.”
The Сonstitution de-facto enshrines a conflict between the President and the Government. The culmination of that became evident in the confrontation between Viktor Yushchenko and Yulia Tymoshenko in 2008-2009. Although the President does not formally belong to any branch of power, he de facto gravitates to the executive branch. The Basic Law rather vaguely establishes the status of the President as the head of state and the guarantor of sovereignty, territorial integrity, and observance of the Constitution. But how exactly he should guarantee this is unclear.
Article 106 of the Constitution establishes a conflict between the President and the Prime Minister and the Minister of Foreign Affairs, as the President “directs the foreign policy of the state” and “decides on the recognition of foreign states.”
The powers of the Cabinet of Ministers are partially taken over by the Office of the President and the National Security and Defense Council. Their status and powers are not enshrined in the Constitution. In practice, this turns the President’s Office into another policy-making body together with the Cabinet of Ministers and the National Security and Defense Council into a “shadow government.” Thus, the National Security and Defense Council coordinates and controls the activities of executive bodies in the field of national security and defense. But this area has never been clearly defined, so the National Security and Defense Council can replace the Cabinet of Ministers, making decisions on virtually any issue.
The Constitution does not even guarantee the Prime Minister the formation of the Cabinet – in recent years, this has actually been done by the Office of the President. The Prime Minister directs the Cabinet only nominally, which not only reduces the efficiency of the Government but also contradicts the logic of a mixed form of governance. It is also somewhat surprising that the President, not the Prime Minister, has the right to address the Verkhovna Rada to consider the responsibility of the Cabinet of Ministers.
And in general, the Constitution defines the powers of the Cabinet of Ministers illogically, inconsistently, and inconsistently. For example, the Government is responsible for conducting financial, pricing, investment, and tax policies, policies in the areas of labor and employment, social protection, education, science and culture, nature protection, environmental security, and nature management. However, the activities of the Cabinet of Ministers are much broader than these policy areas. Unfortunately, the Constitution does not emphasize the main task of the Cabinet of Ministers – the shaping of state development policy in all areas.
The 2004 constitutional reform established a parliamentary-presidential republic in Ukraine with greater political weight in the Verkhovna Rada. But some provisions of the Constitution allow the President to interfere in the legislative process to achieve his own political goals. For example, for some reason, he, and not the Prime Minister, can define his own draft laws as urgent – the Verkhovna Rada is obliged to consider them out of turn.
The President also has the right to introduce draft laws on amendments to the Constitution. The weight of the President’s amendments is equal to at least one-third or two-thirds of the deputies of the Verkhovna Rada (150 or 300 members of Parliament, respectively). However, in order to overcome the President’s veto, i.e., to reconsider the bill in the Verkhovna Rada, the votes of at least two-thirds of the MPs’ are needed.
The Constitution does not sufficiently regulate the procedure and limits of the President’s veto. Therefore, in practice, the text of the law repeatedly during the reconsideration of the Parliament differed significantly from its original version.
Presidents often abuse their right to introduce draft laws to amend the Constitution. All amendments to the Basic Law in recent years have been initiated by the Head of State. Moreover, presidents have repeatedly set up centers to develop constitutional reform outside Parliament, such as the Volodymyr Zelensky Commission for Legal Reform (since 2019) or Petro Poroshenko’s Constitutional Commission (2015-2019).
The whole process of reform is closed to society. Constitutional changes are being prepared without public discussions, so MPS and the public will learn about their content after their official submission to the Verkhovna Rada. Since 2014, 11 bills on amendments to the Constitution have been prepared. Most of them had significant legal defects or caused a significant public outcry, which led to their recall, or the Verkhovna Rada postponed their consideration indefinitely.
Over the past 25 years, the Constitution has accumulated many weaknesses regarding the activities of the executive branch, the Constitutional Court, the regulation of the justice system, and so on. Public experts have prepared a Green Paper on constitutional reform, which describes in detail the problems of the Ukrainian Constitution, which can be read by anyone.