Constitution of Ukraine De Jure and De Facto. How to Bridge the Gap?

From the Editor: The number of challenges that Ukraine has to deal with today is enormous. Repelling external aggression is not the only threat to statehood. Establishing a system of public administration is also one of the strategic tasks for survival. Currently, the key democratic principle — the balance of interaction between the branches of government — has been violated. The government and the parliament have long lost their subjectivity, which deprives them of any initiative, and thus democracy is under threat. All power is concentrated in the hands of the president and his entourage, who have a strong desire to continue to rule manually. And this is despite the fact that the central government lacks the institutional capacity and competencies to do so.

That is why there is a gap between what is written in the Constitution de jure and how it is implemented de facto. The country lives by the rules dictated by the authorities. What should be done about it? The discussion about constitutional amendments that would clarify the current dual parliamentary-presidential model of government has been going on for a long time. What is closer to us — a parliamentary or presidential form of government? Is it possible to properly balance the current Constitution by making point changes to it? Opinions and proposals differ, but in any case, this discussion will determine the strategic direction of our country's development. This text is one of the views on the current topic.

We invite you to submit your proposals for amendments to the Constitution to increase the responsibility of the authorities.

 

The Kremlin is confident that the "demolition" of Zelenskyy will break the resistance to Russian aggression. This is because in their reality, the people can allow one person to decide the fate of not only the entire country, but also the world. In the spring, there was even talk of a special operation called Maidan-3 being prepared to undermine confidence in the president's legitimacy in his sixth year in office.

In fact, both the Orange Revolution and the Revolution of Dignity have proven this approach wrong. Ukrainians are quite self-organized and ready to resist not only the external enemy but also the central government when there are attempts to usurp power.

The war revealed the imperfection of the state governance system. And now they are trying to justify authoritarianism by the Russian aggression. But even under the guise of a threat to the existence of the state, Ukrainian society does not and will not accept this. Unfortunately, democracy has not yet become the quintessence of the political elite and often slips into ochlocracy. This is a degenerate form of democracy that appears in times of crisis, when the government resorts to populism. Ochlocracy is inherent in those societies whose political system is on the verge of a national catastrophe.

The decentralization of power, which has been a fairly successful reform over the past ten years, has partially prevented the introduction of rigid authoritarianism.

But now there is a real threat of neo-feudalism. Why? And what to do about it?

The current Constitution, which is not in force

In the more than thirty years since Ukraine regained its independence, neither the political elite nor civil society has abandoned the basic rule of Communist state-building. Regardless of constitutional and legislative regulation, real decisions are made in the President's Office on Bankova Street, whereas Hrushevskyi Street, where the parliament and government are located, is scapegoated.

This state of political uncertainty, and thus irresponsibility, stems from the provisions of the Constitution, which has so far satisfied the political elite. But now, when the prospects of European integration require decisive and fundamental reforms, this Byzantine system of relations between government institutions seriously hinders the necessary changes.

Moreover, the principle described above has begun to stall. After all, while the government used to initiate changes first, and the president, or rather his office, would block or skip them, now there is a game of giveaway checkers: the government expects initiatives from Bankova Street or at least their prior approval by the President's Office before they are made public. This shifting of responsibility for everything that happens in the country to the president coincides with public opinion that the head of state is responsible for everything. There are even calls to legalize the actual system of state governance modeled after the United States, when it is the president who heads the executive branch of the country.

However, the apologists for this idea forget about a number of significant differences between a federation and a unitary state. In the United States, most areas of regulation fall within the competence of the states, so the cost of a mistake at the federal level is significantly reduced. Again, the system of checks and balances prevents the United States from slipping into an autocracy like Russia. And this applies not only to the system of relations between the legislative and executive branches. The judicial system, which is based on customary case law and is resistant to political turbulence, plays a major role as a stabilizer.

Therefore, the model of a presidential republic will not take root in Ukraine. We do not have the German law-abidingness that allowed Hitler to establish a dictatorship. And Russian-style despotism, intertwined with a communal way of thinking, will not find support in Ukrainian society, which was brought up on the traditions of individualism, even given the need to unite the nation during the war.

Therefore, it is worth analyzing the structure of power in Ukraine in terms of a real shift of its executive function to the government, which is responsible primarily to the parliament, not the head of state. In general, the term "responsibility" should be the main one when defining the relations between all power centers.

A presidential-parliamentary model like the French one involves developed party building and clear regulation of relations between the branches of government, especially in times of so-called coexistence between the president and the government, when they have different political orientations. This is ensured not only by adherence to carefully written rules, but also by the tradition of forming a political system built on centuries of confrontation between elites and society, which also developed unwritten rules of relations between power structures.

Ukraine has no such traditions. Moreover, there is no success story that would demonstrate the advantages of the constitutionally defined power structure. Therefore, all presidents in Ukraine have tried to reformat the parliamentary majority to suit themselves in a voluntaristic way, often ignoring constitutional provisions and the logic of organizing responsible governance.

The classical model of a parliamentary-presidential republic implies that the president oversees the stability of the parliamentary-government structure, serving as a button to restart a particular institution. At present, it has low chances of being realized. And not only because of the understandable desire of the presidential office to maintain the status quo. Society is also not yet inclined to support such a construction. The personalization of power in the public consciousness is reflected in the status of the president not so much as a monarch or dictator but as a hetman, who is no longer loved the day after his election but has to be tolerated as an inevitable evil. This, however, is the model of the future. And it is necessary to find solutions that would introduce it as organically as possible, without social turbulence.

Point changes to the Constitution should be worked out now

The challenges of the time are critically tough, related to the very existence of the state, which does not allow for free experimentation with proposals for global changes to the Constitution, such as a radical rewrite of the Basic Law and its approval by the Constitutional Assembly. It is advisable to focus on identifying the weakest links in the power structure and outline point changes that would guarantee its greater stability in the future.

One of the most striking contradictions is the president's right to take legislative initiative and at the same time sign laws with subsequent promulgation or veto. This is a clear conflict of interest that gives the head of state a significant advantage, which is further reinforced by the requirement that the parliament must consider the bills he initiates first. At first glance, this problem could be solved by limiting the subject matter of the projects initiated by the president to his direct competence, i.e. defense and foreign policy. However, it is the tradition of all presidents to expand their powers beyond the constitutional provisions if the Basic Law contains at least a mention of an existing instrument of influence.

Again, it is impossible to oblige the president to submit draft laws even within his competence. For example, a draft law related to mobilization, which logically should have been initiated by the head of state, was being footballed between the government, parliament and even the General Staff, while the president withdrew his right to legislative initiative because these are "unpopular steps." Therefore, establishing clear regulations for the president on the substance of the bills he initiates has no sustainable basis. The proposal to deprive him of the legislative initiative altogether will also be perceived ambiguously and will be subject to manipulation, such as the fact that the president was popularly elected, but meanwhile has no tools to implement the much-needed reforms he promised voters.

However, the proposal to relieve the head of state of the burden of signing laws passed by the parliament deserves attention. In addition to eliminating the conflict of interest described above, it removes the basis for abuse by the president, when delaying signing a law creates legal uncertainty, putting the parliament and government in a political stalemate.

The counterargument may be that the president is the guarantor of the Constitution and his signature under the law allegedly means that there is no violation. However, this is a weak position because the interpretation of the Basic Law is the prerogative of the Constitutional Court, and the head of state, as the guarantor of the Constitution, should exercise his right to appeal to this court on the constitutionality of the law every time he receives a bill passed by the parliament. Again, the right to ask the Constitutional Court about the constitutionality of a law is also available to MPs, and even to the government with regard to treaties, so they should logically be considered guarantors of the Constitution.

It could be limited to the fact that the law comes into force upon signature by the Chairman of the Verkhovna Rada, but this construction is not balanced by a guarantee of actual implementation of the law. Therefore, the most logical solution is to transfer the power to sign the law to the Prime Minister, which means that the government is ready to implement it. This resonates with the American system, where the US president signs laws not as the head of state, but as the head of the executive branch.

Even the Ukrainian system of local self-government at the community level stipulates that the mayor of a city, village, or settlement signs council decisions as the head of the council's executive body, which is required by the Constitution to implement those decisions. This model of a strong mayor is quite successful, although his chairmanship of a council meeting of which he is not a member again demonstrates a bias toward authoritarianism, which also needs to be eliminated in the Basic Law.

Ultimately, the need for the government to enact a law will force parliamentarians to consider the institutional and financial capacity to fulfill the promises they made to voters. After all, today, bills, even those initiated by the government, become the property of the parliament after they are voted on in the first reading, and by the second reading, the parliament can radically dilute the ideology of the project proposed by the government.

The task of establishing a feedback loop between the government and the parliament, which is nominally responsible for it, is solved precisely through the promulgation of the law by the head of government. Moreover, this feedback affects the behavior of not only the majority that forms the government, but also the opposition, which will have to fulfill its main mission of offering alternative solutions for the country's development and forming a shadow government. As a result, politics in its original meaning will finally appear.

And what about the veto? In the classic sense of rejecting a legislative initiative, there is no such thing. The prime minister simply does not sign the law, or rather a resolution on the procedure for enacting it in case of disagreement. A priori, it is believed that the government accompanies the bill until it is adopted by the parliament, and this is their joint document. And the government is interested in implementing the provisions of the draft law as soon as possible. However, if the voted draft law has amendments that are unacceptable to the government, they are corrected before the speaker of the parliament signs it. Otherwise, the law does not enter into force, or, as they say, "hides under the broadcloth." Of course, MPs can ask the government questions about its fate, but their disagreement should be realized through a vote of no confidence in the government.

The weakness of this design is the likelihood of frequent government crises. After all, if the parliament does not vote for government initiatives, there are grounds to dismiss the government, as this essentially means that the parliamentary majority has lost confidence in it. On the other hand, MPs always seek re-election and will therefore be reluctant to support unpopular decisions that the government will sometimes be forced to propose.

Article 49 of the French Constitution provides a solution to this problem. The provisions of this article stipulate that by submitting a bill, the government can put its resignation on the line. In such a case, the parliament has 24 hours to initiate a vote of no confidence in the government and to vote for its resignation within the next 48 hours. If neither the former nor the latter is realized within the established timeframe, the draft law is considered to have entered into force, and in its original form, without amendments. It is noteworthy that MPs are required to vote for no confidence in the government, i.e., to demonstrate that there is no pro-government majority. For lawmakers, this is a good electoral indulgence, as politicians can claim that they did not vote for an unpopular bill.

Truth be told, this design requires a fairly thorough elaboration of the draft law in the depths of the government, but by definition it must be highly professional. At least in France, the government uses this provision quite often and successfully, even when approving the budget. The last time this was done was when the extremely unpopular decision to raise the retirement age was made.

The proposed constitutional amendments require strengthening the role of the president as a guarantor of the stability of the institutional structure. In fact, this is a clarification of the grounds for the president to dissolve the parliament. The ambiguous and amorphous rule on the existence of a parliamentary majority should be replaced by a clearer sign of a parliamentary crisis: its (the parliament's) refusal to vote for a government bill. However, the government should have the right to withdraw it at any point in the legislative process.

In this case, the head of state is able to determine whether it is better for the country's development to dismiss the government or re-elect the parliament. Not a bad compensation for the loss of the right to sign laws. We should immediately reject manipulations such as the idea that the popularly elected president is given the role which equals that of the Queen of England. The early termination of the powers of the parliament or acceptance of the resignation of the government precisely requires the nomination of the head of state in a manner that ensures his impartiality and independence from the parliament and the government. And this is only a national election, not a parliamentary appointment.

...The development of society requires a clear demonstration of the institutional capacity of the authorities to respond promptly to global and local challenges. Decentralization of power partially solves this problem. However, at the state level, it is necessary to change the structure of interaction between the main power players. Unfortunately, political parties, which are essentially non-developing political projects, still maintain the illusion of fighting for the only position of power — the presidency — professing the "winner-takes-all" principle. Defeating the dragon to become the dragon yourself is a tradition of the political elite, a temptation that is difficult to overcome even after two Maidans.

But Ukraine does not have centuries to change its political culture naturally. The aspirations of Ukrainians for the European community and a mature civil society can accelerate the process of political maturation. While the war grinds on, it is unconstitutional, illegal and inexpedient to amend the Basic Law. But solutions need to be developed and proposed now because the window of historical opportunity usually does not open for long. And we can already predict that it will open in the near future.

The material was prepared in cooperation with the Holka civic initiative.