Our Fighting Democracy

Two years ago, Russia launched its full-scale war against Ukraine. Our country is fighting for its democracy. The conditions for this could hardly be more extreme. Since 1945, no democracy on the European continent has faced challenges similar to those of Ukraine.

Under these extreme wartime conditions, the Ukrainian people have demonstrated their resilience and commitment to fight for freedom and independence. Simultaneously, the public governance system has proven its ability to sustain democracy and adhere to democratic principles of state administration in practice.

Despite the enemy’s efforts, Ukrainian democracy continues to uphold constitutional provisions, even amidst military operations. The Constitution enshrines the European identity of the Ukrainian people and the irrevocability of Ukraine’s European and Euro-Atlantic trajectory.

This vector is evidenced by Ukraine’s status as a candidate country for the European Union (EU) in the summer of 2022 and its subsequent fulfillment of relevant EU requirements. As of February 2024, the Government of Ukraine has already approved the Action Plan for the implementation of the European Commission’s recommendations. This progress was made possible thanks to the Ukrainian people’s armed defense of their democracy.

We, two constitutional law experts from Ukraine, would like to use the second anniversary of Russia’s full-scale assault to report in our “Letter from Ukraine” on how Ukrainian democracy manages to persist in these challenging times.

The Parliament and the President

Despite the inherent military risks, the Ukrainian Parliament continues to operate under martial law, carrying out almost all of its constitutional functions. The Parliament’s legislative function has led to the adoption of numerous significant laws. In addition to enacting laws in the military, humanitarian, and social sectors, the Parliament has also passed laws related to European integration.

The President of Ukraine also continued to exercise his powers in accordance with the Constitution of Ukraine. Under parts two and three of Article 102 of the Constitution, the President serves as the guarantor of state sovereignty, territorial integrity of Ukraine, adherence to the Constitution, and the rights and freedoms of its citizens. He also ensures the implementation of the strategic course of the state towards full membership in the European Union and the North Atlantic Treaty Organization.

In practice, the President of Ukraine, in his role as Supreme Commander-in-Chief of the Armed Forces of Ukraine (Article 106, paragraph 17, part one of the Constitution), prioritizes the defense of Ukraine and the protection of state sovereignty as his primary responsibilities during the full-scale invasion by Russia.

Wartime elections: Neither constitutionally nor practically possible

But what is the response to the speculations of some that the Ukrainian government lacks legitimacy because no elections were held? Our answer is straightforward: Since the end of World War II, no democracy in Europe has faced a challenge comparable to what Ukraine is currently experiencing.There is almost no practical experience in constitutional and legal regulation of public authorities’ activities under these extraordinary conditions.

As per Ukrainian legislation, parliamentary elections in Ukraine were scheduled for October 29, 2023. However, Article 19 of the Law of Ukraine “On the legal regime of martial law” stipulates that parliamentary, presidential, and local elections are all prohibited under martial law. Furthermore, part four of Article 83 of the Constitution of Ukraine clearly states that if the term of authority of the Verkhovna Rada expires during the state of martial law, its powers are extended until the day when the newly elected Verkhovna Rada convenes for its first meeting of the first session, following the cancellation of the state of martial law. Most foreign constitutions contain similar provisions.

Regarding the presidential elections in Ukraine, the Constitution of Ukraine stipulates that regular presidential elections are held on the last Sunday of March in the fifth year of the President’s term. Therefore, under peaceful circumstances, the elections should have taken place on March 31, 2024, with the Parliament scheduling them no later than December 21, 2023.

However, due to the legal regime of martial law, the next presidential election will not adhere to the constitutional timeline. In such a scenario, Article 108 of the Constitution of Ukraine is invoked to prevent a power vacuum and ensure the continuity of power. This means that the current President of Ukraine retains their authority until a newly-elected President assumes office after the first post-war elections.

Conducting elections under martial law is therefore not possible according to either constitutional law or electoral law provisions. But also beyond legal considerations: there is no public demand for wartime elections.These arguments justify the constitutional and legal feasibility and appropriateness of extending the terms of the Parliament and the President under martial law, particularly to safeguard democracy in Ukraine.

Judiciary and local self-government: Under pressure, but functional

The judiciary in Ukraine continues to function in line with the country’s Constitution. There is a noticeable enhancement of judicial institutions and the implementation of the European Commission’s recommendations.

In 2023, a competitive selection process was introduced for the Constitutional Court of Ukraine (CCU), confirming the sustainability of Ukrainian democracy. For the first time in Ukraine’s history, the appointment of judges to the CCU will involve international experts. The selection process will assess candidates based on their level of competence in law and their high moral standards. Furthermore, in 2023, both the High Council of Justice and the High Qualification Commission of Judges of Ukraine recommenced their operations.

Ukraine’s local self-government has also continued to function under conditions of extreme pressure. Before Russia’s full-scale invasion, Ukraine’s decentralization reform of 2014 has shown some positive results. (However, progress has stalled since 2019).

The imposition of martial law necessitated the establishment of military administrations, which assumed the responsibilities of local self-governance in certain areas. At the same time, even under martial law, the local government system, a cornerstone of the constitutional order, has persevered, continues to operate, and maintains interaction with government bodies. Notably, at the onset of the war, municipal authorities shouldered the responsibility of ensuring territorial defense and accommodating internally displaced persons.

A good example is the work of the municipal authorities in Kharkiv, a city of over a million residents near the frontline. Despite the proximity to the Russian border and constant shelling, local self-government in the city and the region remains functional and responsive to the needs of the local population. The local authorities’ initiative to construct and organize underground preschools and schools, which continue to operate in an in-person classroom format even amidst almost daily shelling, is noteworthy.

Regrettably, there have been instances where the state has imposed certain restrictions on local self-governance, primarily involving the curtailment of local governments’ budgetary powers and constraints on local budget revenues.

Russia’s military aggression against Ukraine has revealed a very interesting fact. The Ukrainian people have demonstrated their legal consciousness. Recognizing the risks of losing their statehood, the nation has entered into a new, unwritten social contract with the authorities. The content of this agreement is unity and a joint fight against the enemy. The preservation and protection of the fundamental principles of the constitutional order, even in the face of military aggression, attest to this. The struggle, however, continues.

The survival of Ukrainian statehood and the operation of public authorities post-February 24, 2022, are undoubtedly a testament to the heroism of the Ukrainian military, volunteers, and the nation as a whole.

We hope that this letter gives an impression that our democracy is resilient – and that it is fighting.

However, we would like to conclude this letter by expressing our gratitude. We thank all military servicemen and we thank our colleagues and legal scholars Volodymyr Nesterovych and Roman Kuybida, who have been defending their homeland from the Russian Federation for over two years.

Verfassungsblog

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