Incorporation of the Euro-Atlantic course in the Constitution goes on in Ukraine

In the spring of 2018, the President of Ukraine Petro Poroshenko announced his intention to initiate consolidation at the level of the Constitution of the Euro-Atlantic course of Ukraine. In September 2018, the President introduced to the Parliament a draft law No. 9037. On the Strategic Course of the State towards Ukraine’s Full Membership in the European Union and the North Atlantic Treaty Organization. Soon afterwards, on September 20, in accordance with the constitutional procedure for amending the Constitution, the Parliament voted to submit the presidential draft law to the Constitutional Court.

In Ukraine, the procedure for amending the Constitution of Ukraine provides for mandatory prior constitutional control by the Constitutional Court. On November 22, the Constitutional Court adopted a positive Conclusion on the compliance of the draft law No. 9037 On the Strategic Course of the State Towards Ukraine’s Full Membership in the European Union and in the North Atlantic Treaty Organization with Articles 157, 158 of the Constitution. At the same time, six judges of the Constitutional Court expressed individual opinions, indicating the shortcomings of the proposed constitutional changes. However, the positive conclusion of the Constitutional Court gave “green light” for consideration and adoption by the Parliament of the constitutional changes as proposed by the Head of State. On the same day, the Parliament preliminary approved this draft law. In the Parliament, as many as 311 people’s deputies supported the constitutional changes to incorporate the Euro-Atlantic course (support by a simple majority, at least 226 votes of parliamentarians, was required). Under the constitutional procedure, amendments to the Constitution will be approved if at least 300 deputies will vote for them at the next session of the Ukrainian Parliament, which will begin in February this year.

Let’s consider in more detail the possible constitutional changes in Ukraine. Consolidation of the Euro-Atlantic course of the state at the level of its Constitution is a non-standard step for the states, especially in the absence of a real process of acquiring the state’s membership in the EU. However, in the case of Ukraine, an explanation can be found in its historical development, current situation, in particular, the need for European integration in order to preserve its independence. In addition, we should not miss the subjective factor of the presidential initiative, namely, the votes of the pro-European electoral base in the presidential elections to be held in March 2019. It should be reminded that in Ukraine on December 31, 2018, the election campaign of the next presidential election has begun.

What do constitutional changes suggest regarding the Euro-Atlantic course of Ukraine?

1. At the Preamble level, declare the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine.
2. Include the Euro-Atlantic course of the state in the powers of the Parliament as well as the President and the Government. In particular, the Parliament will be authorized to determine the implementation of the strategic course of Ukraine to become a member of the EU and the North Atlantic Treaty Organization, the Government will ensure the implementation of this course, and the President will act as the guarantor of its implementation.
3. It is proposed to exclude from the Constitution of Ukraine a provision that stipulates the use of existing military bases on the territory of Ukraine for the temporary stay of foreign military formations under lease conditions in accordance with international treaties.

While supporting in general the expediency of declaring the European course of Ukraine in the preamble of the Constitution, the experts of the Centre of Policy and Legal Reform indicate a number of reservations about the proposed initiative. Unfortunately, this could not be done during the preparation of constitutional changes.

It is true that again the constitutional changes in Ukraine were prepared by the head of state in a closed way outside the scope of the inclusive process. Expert community, as well as the society first, saw consolidated constitutional changes already on the website of the Parliament in the form of a registered draft law. At the same time, an advisory body has been set up with the President of Ukraine for the development of constitutional changes, which is the Constitutional Commission. However, this draft law passed by the Commission, it was neither developed, nor discussed there. A referendum on the Euro-Atlantic course of Ukraine was not conducted, and it is not possible to hold it today in Ukraine. Since the current Law “On All-Ukrainian Referendum” in the spring of 2018 was declared unconstitutional by the Constitutional Court, it became invalid accordingly. The Parliament has not yet managed to pass a new law and establish the procedure for referenda in Ukraine.

In our opinion, the very closed procedure for the preparation of constitutional changes once again was the cause of a series of wrong and questionable proposals.

Therefore, we would like to highlight the following shortcomings:

1. The text of the draft law uses the term “full membership” of Ukraine in the European Union and the North Atlantic Treaty Organization. The statutory documents[1] of these organizations do not provide for the concept of “full membership”, which raises doubts about the correctness of the use of the proposed term in the text of the Constitution of Ukraine.
2. The draft law proposes the following wording to paragraph five of part one of Article 85 of the Constitution of Ukraine: “Powers of the Verkhovna Rada of Ukraine include … determination of the principles of internal and foreign policy, implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization”. In our opinion, the proposed wording of paragraph 5 of part one of Article 85 of the Constitution of Ukraine raises the problem of ambiguous interpretation of these powers of the Parliament, and therefore does not correspond to the principle of legal certainty. In particular, it is not clear how to read the powers of the Parliament: “Powers of the Verkhovna Rada include determination of the implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and the North Atlantic Treaty Organization” or “Powers of the Verkhovna Rada include determination of the principles for the implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and in the North Atlantic Treaty Organization.” At the same time, unclearness of the implementation of the proposed powers of Parliament is aggravated by today’s parliamentary practice of the implementation of paragraph 5 of part one of Article 85 of the Constitution of Ukraine through the development and adoption of a separate Law “On the Principles of Internal and Foreign Policy”, which, incidentally, also stipulates the Euro-Atlantic course of Ukraine. Therefore, a question arises whether the Parliament should adopt a separate law on the principles of implementing the state’s strategic course towards Ukraine’s full membership in the European Union and the North Atlantic Treaty Organization or to take into account the need to implement the strategic course of the state in every single law.
3. The draft law proposes to supplement Article 102 with part three in the following wording: “The President of Ukraine is the guarantor of the implementation of the strategic course of the state on acquiring full membership of Ukraine in the European Union and the North Atlantic Treaty Organization.” In the context of the Ukrainian constitutional mechanism of the distribution of power, a question arises as to which instruments the President will use to ensure the implementation of the specified state course. This can create conflicts between the Parliament and the President, the President and the Government and even lead to constitutional crises. A number of judges of the Constitutional Court, in particular, M. Gultai, in their individual opinions pointed out the possibilities for disbalancing the state power mechanism.
4. Incorporation in the text of the Constitution of Ukraine of the names of international organizations, namely the European Union and the North Atlantic Treaty Organization (subject to the adoption of proposed constitutional changes), may lead to uncertainty about the state’s strategic course, if one of these organizations or two of them at once will change the name, which is something Ukraine can not influence. A judge M. Melnyk draws attention to this fact in his individual opinion, pointing out that incorporation of the names of international organizations in the Constitution is not well-grounded and justified.
5. There are controversial issues regarding the amendment of the preamble of the Constitution, both in terms of the procedure for amending it (Chapter XIII of the Constitution does not regulate this issue), and in terms of changing the content of the preamble as part of the Constitution, which reflected a certain historical moment of the adoption of the Constitution of Ukraine. As much as five judges of the CCU in their individual opinions draw attention to this fact.

Taking into account the reservations expressed by the expert and 6 individual opinions of the Constitutional Court judges, we recommend the Parliament not to rush with the constitutional changes proposed by the President. It is advisable to hold a professional discussion of the comments made, finalize the draft law, re-send it to the Constitutional Court, and then return to its preliminary approval and final adoption. The proposed procedure will also address the issue of the impossibility of changing the Constitution during the martial law that was in force in Ukraine from November 28 until December 26, 2018.

Julia Kyrychenko
Source: Ukrainian Liaison Office in Brussels

[1] North Atlantic Treaty, Washington, DC, April 4, 1949 // Access: https://www.nato.int/cps/uk/natohq/official_texts_17120.htm. Treaty on European Union, Maastricht, February 7, 1992 // Access: http://zakon.rada.gov.ua/laws/show/994_029/print.