Ukraine Peace Terms: A Constitutional Contribution?

Ukraine and Russia are struggling to find a basis for a peaceful settlement. This blog looks at whether an undertaking by Ukraine to change its constitution could play a part in any settlement

Background
 
At the present time the prospects for peace between Ukraine and Russia do not appear promising. Russia seems to believe that time is on its side. Ukraine does not appear to have much to offer other than a ceasefire. In these circumstances an undertaking by Ukraine to change its constitution would be in the Ukraine’s own interest and offer a path out of continued warfare and loss of life. It would lead to a change in Ukraine’s government as Russia seems to want. At the same time a change in government without a change in the constitution and in the way Ukraine is governed does not make sense for the Ukrainian people as a whole. The essence of the constitutional undertaking would be for Ukraine to switch from its current majoritarian constitution to one built on consociational principles. 
 
The difference between a constitution entrenching a majoritarian form of government and consociationalism is that consociationalism claims to provide a much better basis to bring together deeply divided societies – in this case it would offer much better protection to the Russian oriented part of Ukraine’s population and their oblasts.
 
The key features arising out of such a switch are as follows: First an electoral system based on Proportional Representation (PR) would protect minorities and likely require coalition government, itself a way pf protecting minority views. Secondly it would provide a high degree of cultural autonomy through regional decentralisation and a region-based Second Legislative Chamber. Thirdly, consociationalism would provide for minority vetoes. The key veto powers would involve a distinction between ordinary legislation and constitutional amendment and in respect of referendums in relation to foreign treaties. This would potentially provide the Russian oblasts with veto power over NATO and EU memberships, although they might not exercise it. In this context the political provisions in the current constitution setting out the aim of NATO and EU membership would be removed. In addition, in order to ensure the wider representation of interests, the duties of the Presidency would be shared with an Advisory Council. Fourth. since corruption has been a longstanding feature of government in the Ukraine there would need to be special protections, such as limitations on election expenses and term limitations on those holding positions of elected and unelected authority. 
 
These features are spelt out in greater detail in the draft text below. A commentary links the proposed changes to the current text drawn from the Comparative Constitutions Project.
 
Preamble
 
This document sets out the fundamental law of the Ukraine. It describes the way authority is to be organised and exercised in the Ukraine to achieve harmony amongst its people, peace with its neighbours and to rest on the consent of its citizens.
 
Comment: The aim is for a short statement of what the document is about. Compared with the preamble of the existing (1996/2019) constitution this draft avoids statements about the future political direction of the Ukraine; e.g. ‘The irreversibility of the European and Euro-Atlantic course of Ukraine’. However, it retains the existing reference to the ‘fundamental law of the Ukraine’ to signal that its provisions stand above ordinary law and cannot be amended by ordinary legislative procedures. 
 
Chapter 1: General Principles
 
The Ukraine is a Republic.
 
All institutions and persons who hold authority in the Ukraine shall observe the rule of law and exercise their authority under the law. No person or institution shall be above the law.
 
There shall be a high degree of separation of powers between those bodies exercising legislative, executive and judicial functions.
 
The importance of regional and local affiliation and diversity, including language diversity, is recognised in the organisation of powers both at the local and national levels.
 
All public authority shall be exercised with transparency and subject to freedom of information about its exercise.
 
Environmental protection and nuclear safety shall be recognised as of special concern. 
 
Comment: The statement of principles in the 2019 constitution contains 20 articles. The substance of eight have been retained. Nine have been dropped referring to sovereignty and the social state (Article 1), the unitary state (Article 2) single citizenship (Article 4) national promotion (Article 11), non-residents (Article 12) property and land (Articles 13 and 14) the armed forces (Article 17) and state symbols (Article 20). The remaining three provisions relating to rights (Article 3) international treaties (Article 9) and international law (Article 18) are covered at later points in the draft.

Chapter 2: Rights
 
Citizens of the Ukraine shall be treated with the respect consistent with human dignity and with the aim to achieve social and political inclusion. 
 
Citizens shall have the right of residence and freedom of movement anywhere within the Ukraine.
 
Citizens are equal in front of the law. There shall be no discrimination based on age, ethnicity, language, gender, or sexual orientation. 
 
There shall be freedom of thought, beliefs, identity, expression, association and right of peaceful assembly.
 
All citizens over the age of 18 shall have the right to vote in elections at all levels of government. The manner of voting shall protect the secrecy of the vote. 
 
Citizens shall have the right to petition any public body and the right to a substantive reply.
 
Individuals shall have a right to privacy and to a private sphere. 
 
Citizens shall be free from arbitrary arrest. They may not be held without trial.
 
Citizens, accused of civil or criminal offences shall be presumed innocent unless or until proved guilty in a court of law, have the right to know what they are accused of, to legal aid and to a professional defence. 
 
Citizens shall not be subject to double jeopardy. Those accused unjustly shall be entitled to compensation. 
 
Laws shall not be applied retroactively. 
 
In the interpretation of the fundamental rights of the citizens of the Ukraine, the authorities shall take into account the jurisprudence of the European Court of Human Rights and the European Convention on Human Rights, the rulings of the European Court of Justice on the Charter of Fundamental Rights of the European Union and other applicable human rights jurisprudence in other relevant jurisdictions. 
 
Comment. The existing constitution contains 47 provisions (Articles 21-68) pertaining to rights. They include individual rights, economic and social rights, political and legal rights and social obligations. In the revised statement the list of procedural rights (Articles 21-40 ) have been combined and largely retained in substance; economic and social rights (arts.41-54) have been replaced by a general statement of principle in relation to dignity and social inclusion as well as by social provisions in Chapter 3 below; legal rights (Articles 55-64) have been retained and combined and the statement of obligations (e.g. to pay taxes) dropped. A reference to international human rights standards has been added.
 
Chapter 3: Territorial Organisation
 
In order to recognise the different traditions, and different social, linguistic, ethnic and cultural affiliations represented within its territory, the Ukraine is organised into 27 regions, or oblasts, including the cities of Kyiv and Sevastopol. Sevastopol shall become an international free port under the joint administration of Russia and Ukraine.
 
The regions may authorise the use of Russian (or other customary languages) in addition to Ukrainian for the purposes of official communications with citizens and other official bodies within their territory and ensure that instruction in them is provided in school education.
 
Each region shall have its own assembly of 50 members elected on a regional basis according to a system of proportional representation. The assemblies will have budgetary, legislative, and administrative powers in fields of responsibility that are not the exclusive responsibility of the national government. 
 
Foreign affairs and international relations, military, security and defence policy, trade policy, macro-economic management, national infrastructure investment in transportation, communications and energy, and immigration policy shall be the exclusive responsibility of the national government and its institutions.
 
In addition to any regional provisions, there shall be provision for national health services and health insurance, state pensions and unemployment/social security benefits.
 
To carry out their legislative and administrative responsibilities, the powers of the regions will include the power to tax sales, property, business and personal income within their own jurisdictions within upper limits set by the government of the Ukraine. [And/or, A part of the proceeds of national taxation shall be allocated to the regions in proportion to the size of their population and per capita income].
 
Elections to the regional assemblies are to be held every five years. No representative may serve more than two terms in total.
 
The regions are to be represented in the national institutions of the Ukraine as set out below. 
 
Comment: This chapter strengthens the provisions for regional government contained in Chapter VI Articles 118-119 in the existing constitution and eliminates the detail of Chapter XI on local self-government. The key new provisions are those establishing regional elected assemblies, with the power to levy regional taxes (within limits). Apart from taxation, the division of powers between centre and the regions echoes that contained in Chapter 2. Articles 46 and 49, Chapter IV Article 92-93, Chapter VI Article 116 of the existing constitution. Sevastopol comes under joint Russian/Ukrainian control as an international freeport.
 
Chapter 4: The Legislature
 
The legislative branch of the government of the Ukraine will consist of two chambers.
 
The First Chamber shall consist of 300 representatives elected according to a system of proportional representation. [tbd. choice of national or local lists].
 
The Second Chamber will consist of 100 representatives representing regional constituencies. Each region will be represented in the chamber according to its resident population size. Representatives will be elected on the basis of a system of proportional representation within each region.
 
The right of legislative initiative shall be vested in the government and legislation introduced and approved in the First Chamber. The Second Chamber will have the right to propose amendments. In the event that amendments proposed by the Second Chamber are not accepted by the First Chamber, legislative proposals may be delayed by the Second Chamber for a period not to exceed the life of one assembly. 
 
In addition to their legislative duties, both Chambers will have a responsibility to scrutinise the work of the ministries of state, and executive agencies. They shall have the power to call for evidence and to summon witnesses.
 
Elections to each Chamber will be held every five years. No member of either Chamber may serve for more than two terms in total. No member of either Chamber may carry out other paid activities in the private or public sectors. The manner of election shall be such as to ensure gender balance in each Chamber.
 
The two Chambers will decide on their own procedures.
 
Sessions shall be open to the public and voting placed on the public record.
 
An Independent Electoral Commission shall oversee the drawing of electoral boundaries, the carrying out of elections to the regional and national assemblies and set limits on electoral expenditures. [Its membership shall be approved by the Second Chamber on the recommendation of the President]. 
 
Comment: This replaces Chapter 4 in the current constitution. The main difference is in respect of the introduction of a Second Chamber and the requirement for P/R in elections. Gender balance has also been added. Many detailed Articles in the existing constitution relating to the organisation and duties of the parliament have been omitted. The size of the First Chamber has been set at 300 members rather than 450 in the current constitution.The power of the First Chamber to initiate constitutional change and referendums (Chapter XIII Article 154) has been removed. Limits on electoral expenditures, term limitations, and an independent electoral commission are introduced as defences against corruption and gerrymandering. No provision has been made for special elections prior to the end of the fixed 5-year term.

Chapter 5: The Presidency
 
A directly elected President shall be Head of State on the basis of a national ballot. 
 
The President shall serve for one term of six years.
 
A Vice President, the runner-up, shall be elected for a concurrent term on the same ballot.
 
In addition to the ceremonial duties of a Head of State, the President shall appoint the Prime Minister from the party or parties commanding a majority in the First Chamber and shall sign into effect laws passed by the legislative branch and those resulting from Ukraine’s accession or deaccession to foreign and international treaties approved by referendums. 
 
The President shall be advised by a High Council. In addition to the President, the High Council shall consist of the Vice President, the Presidents of the two legislative chambers, and [the first Ministers of the Crimean, Luhansk and Donetsk Assemblies]. 
 
The President must withhold the signing into effect of legislation and international treaties if the Advisory Council so recommends. 
 
Comment: This replaces Chapter V in the existing constitution. What is new is the addition of a VP and Advisory Council that could act as checks on the President. Reference to the Council on National Security and Defence in the existing constitution is removed. The President may serve for only one term rather than two. The President’s right to initiate constitutional change and to call referendums is removed (Chapter XIII Article 154).
 
Chapter 6: The Executive and Executive Agencies
 
The Prime Minister shall appoint the members of the government to head the ministries of state. 
 
Executive powers will also be vested in independent executive agencies with authority in key fields. Their terms of Reference shall be decided by [the First Chamber]. In addition to the Independent Electoral Commission, other agencies shall include: a market and competition authority to ensure that market structures serve the interests of citizens; a health and safety authority to ensure high standards of public health protection, an education inspectorate to promote high standards in education; an Information Commission responsible for setting standards of transparency in all public bodies and for safeguarding privacy standards for citizens and a Human Rights Commission. 
 
Each body shall submit an annual report of their activities to the First Chamber of Parliament and to the relevant Ministry. The reports shall be publicly available. 
 
There shall be an independent office of budget scrutiny, reporting to the First Chamber, that shall provide a periodic assessment of the economic prospects of the Ukraine and the implications of government spending plans and priorities. 
 
Comment: This takes up part of Chapter II Article 42 in the existing constitution. It adds the Office of Budget Scrutiny in line with OECD practice. It makes the Human Rights Commission independent of the First Chamber (Chapter II Article 55).
 
Chapter 7: Referendums
 
Referendums may be initiated by a popular initiative supported by at least 100,000 citizens in 3/4 of the oblasts. A referendum may also be initiated by a high (2/3) majority of the Second Chamber.
 
The conduct of any referendum shall be overseen by the Independent Electoral Commission that shall frame the question to be asked.
 
Participation in any international treaty or agreement with effects on the law of the Ukraine shall require to be approved in a referendum both in respect of the application to join and in respect of ratification of the terms and conditions of membership.
 
The results of a referendum shall be binding only on the basis of a high majority of votes cast (2/3) and a high participation (2/3) of registered voters in each oblast.
 
Comment: This replaces Chapter III in the existing constitution and removes the right to call a referendum from the First Chamber and from the President. It changes responsibility for calling referendums from the Parliament and President to either a popular initiative or the Regional Chamber. International treaties/agreements require the same high majority in a popular vote. 
 
Chapter 8: The Central Bank of the Ukraine
 
The Central Bank of the Ukraine shall be responsible for safeguarding the value of Ukraine’s currency.
 
In so doing it shall take account of the economic objectives of the government.
 
It shall have responsibility for overseeing the integrity of the financial sector.
 
The Head of the Central Bank shall be appointed by the President of Ukraine.
 
Comment: This differs from the existing provision of Chapter IV Articles 99-100 in adding responsibility for financial supervision and the need to take account of the economic objectives of the government.
 
Chapter 9: The Judiciary
 
Ukraine’s judiciary will be divided into civil and criminal branches. It will be headed by a Supreme Court. The Supreme Court will decide on any matter relating to the interpretation of this constitution and the constitutionality of legislation. Its decisions will be final.
 
The Court will also serve as the court of final appeal on any matter that concerns the rights of citizens. 
 
A citizen may lodge a constitutional complaint directly to the Court. 
 
A High Council of Justice shall have the responsibility to ensure the overall integrity of Ukraine’s legal system and that cases are heard and resolved expeditiously according to internationally accepted norms of justice.
 
The High Council will encourage the development of alternative procedures for dispute resolution for citizens to reduce burdens on the formal legal system. 
 
The Court will consist of 9 members including the Chief Justice. The Chief Justice shall be appointed by the President. All members, including the Chief Justice, shall serve for life.
 
The High Council will nominate judges to their position in the system of courts. [Their appointment shall be subject to the approval of the Second Chamber]. Judges shall serve for life. 
 
Comment: This section replaces existing Chapter XII as well as incorporating provision of Chapter II Article 55 and Chapter VIII Articles 125-126.
 
Chapter 10: Constitutional Amendment and Final Provisions
 
Changes to this fundamental law may not be made according to the procedures for the approval of ordinary legislation. A referendum shall be required for change to be approved. 
 
Changes to this fundamental law may be proposed only by a high majority (4/5) of the Second Chamber, or in response to a petition in 2/3 of the oblasts, of at least 100,000 citizens in each oblast, or in response to an initiative of the Independent Electoral Commission. 
 
The results of a referendum shall be binding only on the basis of a high majority of votes cast (2/3) and a high participation (2/3) of registered voters in each oblast.
 
This fundamental law shall enter into effect if approved under the same procedures, terms and conditions. The independent electoral commission shall review the working of this constitution and prepare any necessary changes for approval at intervals of not more than every 20 years. 
 
Comment: This replaces Chapter XIII of the existing constitution. The main change of substance is in relation to amendment procedures which removes the right of the First Chamber and the President to initiate constitutional change. A procedure for constitutional review has been added.