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Constitution of Ukraine: How it may be changed and what about elections during wartime

The Ukrainian Constitution turns 26 on June 28. During this period, it was repeatedly changed and rewritten.

At the same time, changes were usually proposed by political elites, depending on the needs — for example, strengthening or weakening the presidential branch of power. During martial law, it is forbidden to change the Basic Law, and after the war, the request for amendments may arise directly from Ukrainian society, which over the past eight years has made a serious leap in understanding the values and norms it wants to live by.

The Page discussed this matter with political experts — Roman Bezsmertnyi, one of the founders and authors of the Ukrainian Constitution, lecturer and honorary professor of Kyiv National University of Culture and Arts, as well as Volodymyr Fesenko, Chairman of the Board of the Penta Center of Applied Political Studies, about how the Basic Law could change as a result of the war and after the war.

Defense and legal discipline

Photo: Wikipedia

Photo: Wikipedia

According to Roman Bezsmertnyi, although constitutional provisions prohibit changing the Constitution during martial law, changes to the Basic Law still need to be constantly worked on.

As an example, he cites the fact that the Headquarters of the Supreme Commander-in-Chief was created in Ukraine only this month, while the provisions of the Constitution and legislation oblige this to be done already when there is a threat to territorial integrity and sovereignty.

Quote"This was done only two weeks ago. We were in the state of the ATO (Anti-terrorist Operation) four years, three years — in the state of the JFO, and the Headquarters of the Supreme Commander-in-Chief appears only after almost all regional centers have been bombed for more than 2.5 months," Bezsmertnyi notes.

Therefore, analysts are faced with the issue in the defense sector: are the constitutional provisions wrong, or is the establishment ignoring the implementation of the Constitution and laws?

Quote"It is necessary either to amend the Constitution, or to do something with legal discipline," the professor believes.

Decentralization reform: Are districts needed?

Photo: facebook.com/roman.bezsmertnyi

Photo: facebook.com/roman.bezsmertnyi

The political expert believes that the decentralization reform is the second subject that needs to be worked on.

He recalled that Bucha had only recently become a regional center: earlier Borodianka and Makariv were regional centers, and now Bucha is the regional center, and Makariv is part of the Bucha District.

In this sense, the territorial reform partially created problems for the Russian invaders, who used the old maps, Bezsmertnyi notes.

At the same time, there is a discrepancy between the Constitution and the reform model: the Basic Law does not provide for establishing united territorial communities.

Quote"There is another prescription for unitarity, I know this because I made out these provisions. In fact, it was necessary to start with amending the Constitution," the expert believes.

According to him, the decentralization reform has shown that this is an absolutely right way, but the Basic Law needs to be brought into line with it. This reform also raised the question of what regional administrations do in this model.

Quote"There is not enough room for them, and they have nothing to do there. But then the question is: how will the state exercise control over the rule of law in relation to territorial communities," Bezsmertnyi notes.

Judicial reform and court autonomy

Photo: facebook.com/roman.bezsmertnyi

Photo: facebook.com/roman.bezsmertnyi

In the field of the judiciary, constitutional changes have already taken place, but, according to the professor, there are questions about their quality.

Quote"Can we say that the amendments made in 2016-2017 have improved the situation?" Bezsmertnyi asks.

According to him, experts on constitutional and administrative law say that the foundations enshrined in the Constitution do not make it possible to develop a system of law similar to that in Europe.

This refers to the possibilities of autonomy of judges and courts, and their ability to make transactions in accordance with the Constitution and laws: the problem is that the managerial system can still influence the courts.

Digital governance and digitalization aftermath


In the field of implementing digital management methods, Ukraine has outstripped, inter alia, the Poles, Bezsmertnyi says, but such management has shown that the functions of some administrative divisions are no longer valid. At the same time, problems arose, in particular, with cybersecurity.

Quote"This war has shown that when the enemies use electronic warfare systems, they simply disable this electronic control system," the professor points out.

According to him, this refers to personal identification systems, such as Diia, in addition, the enemy can parasitize on this and obtain registry data, so here we need to work on cybersecurity and alternatives in case of hacking. And also decide what functions of administrative divisions are now performed by electronics and coordinate this with the Constitution.

Rashism on a par with fascism

Photo: Getty Images

Photo: Getty Images

Another issue that should be raised in the constitutional process is including to the Basic Law a ban on the activities of organizations professing rashism, Nazism, and fascism, as has already been done in the constitutions of some democratic states of the world, Bezsmertnyi says.

Quote"One more thing should be clearly understood: what is rashism? Isn't this a kind of fascism, Nazism, and communism? It is a tool for seizing power, an ideology that explains terrorist activities. And this can be seen from what Russians commit on the territory of Ukraine," the professor believes.

According to him, there was ideological and political discussion about the Constitution, which would prohibit the formation of political organizations and social movements based on the communist, fascist, or Nazi ideology, even when the Basic Law was being drafted.

Quote"Back then, they didn’t know what rashism was," Bezsmertnyi noted.

According to him, there is a discussion among Ukrainian scientists: is rashism a concept that can be described, is it just slang generated by the crimes of both the Kremlin senior officials and the activities of the high command of the Russian army soldiers?

Quote"An absolutely clear conclusion is being drawn that all these atrocities were formalized in the form of orders, and can’t be such a massive incident," the expert explains.

]Consequently, sooner or later there must be articles in the criminal process that bring to justice for manifestations of rashism, as well as for Nazism, fascism, and communism. But if such things are not in the Constitution, but they concern human rights, they cannot be enshrined in laws.

Absence of identity and criminal orders

Photo: Getty Images

Photo: Getty Images

Bezsmetnyi stresses that people like Vladimir Solovyov and other Russian propagandists should bear no less responsibility for the war crimes of the invaders.

Quote"It was they who injured the ethnic groups that live in Russia, and brought a bacillus of hatred towards Ukrainians," the expert explains.

The professor noted that it is best to consider this problem using the example of Belarus: although the leadership and part of the population of the country commit war crimes and the media that work there are the same as in Russia, Belarusians overwhelmingly condemn this war.

Quote"The reason here is that the Belarusians identify themselves as a national community as an ethnos, they understand themselves as Belarusians. And when a Buryat, a Bashkir, a Tatar, a Dagestani, an Ossetian, a Mordvinian, a Yamalian, and so on, call themselves Russians, it means that they do not identify themselves as representatives of their native ethnos."

This is a dangerous business, because in the absence of their own identity and legal consciousness, the Bashkirs, who perceive themselves as Russians, will easily obey the commands of the Kremlin elite.

Quote"When these people are told that they have the right not to obey deliberately criminal orders, they don’t understand at all what this phrase means," Bezsmetryi explains.

War as progress for society

Photo: facebook.com/roman.bezsmertnyi

Photo: facebook.com/roman.bezsmertnyi

All these things, Bezsmertnyi continues, should be reflected in the Constitution, because it is a political and legal document that reflects the national consensus. Moreover, not the elite's consensus and agreement, but that of the society.

Quote"This consensus, of course, depends on the maturity of the elite: how capable it is of establishing values and meanings," he stresses.

As an example of a discourse about Ukraine’s future, Bezsmertnyi cites the work of Oleh Pokalchuk "The Trembling Elites", because he raises very serious topics: what will Ukraine be like after the war?

He also quotes Professor Yaroslav Hrytsak, who wrote that war in the history of mankind was more common than peace, but a person did not feel that in a time period.

Quote"War is always a progress, it is a leap in progress. This war radically changed the Ukrainian army technologically, radically changed Ukrainian society. Emotionally, it is very difficult to talk about it," Bezsmertny adds.

Returning to the Constitution, in his opinion, the state should have a permanent constitutional commission that analyzes these things and proposes changes.

Quote"Pokalchuk says that Ukraine will not be the same as before. So it will not be what: in relations between people or in a doctrinal form? Because Ukraine is a society and a state. If society changes, then the state must also change. And the state is changed by the Constitution," Bezsmertnyi sums up.

Region names and decentralization

Photo: facebook.com/vladimir.fesenko1

Photo: facebook.com/vladimir.fesenko1

For his part, Volodymyr Fesenko also stresses that as long as the war continues and martial law is in effect in the country, the Constitution of Ukraine cannot be changed.

And after the end of the war, everything will depend on when and how the war will end, when the next elections will be held, and whether there will be a constitutional majority in the Verkhovna Rada.

At the same time, there are changes to the Constitution of Ukraine that were planned to be introduced before February 24, and they remain relevant.

In particular, Fesenko also mentions enshrining the decentralization reform and changes in the administrative-territorial structure, for example, new names of regions, in the Basic Law.

Collaborators, deputy mandate, and CCU

Photo: facebook.com/vladimir.fesenko1

Photo: facebook.com/vladimir.fesenko1

Because of the war aftermath, new needs for constitutional changes may arise, the political scientist says.

Firstly, it may be necessary to more clearly spell out the grounds for depriving deputy mandates and restricting the passive electoral right for persons recognized as collaborators and those who collaborated with the Russian occupiers.

Secondly, according to Fesenko, speeding up the process of European integration of Ukraine and the need for reforms related to this process may also raise the issue of changes to the Basic Law, for example, on the organization of constitutional justice.

Changes during wartime: What about elections

Photo: facebook.com/vladimir.fesenko1

Photo: facebook.com/vladimir.fesenko1

If the war with Russia drags on, it may be necessary to make non-standard changes to the Constitution of Ukraine right during the hostilities, which directly contradicts its instructions, Fesenko also says.

For example, this may include European integration requirements. Such changes will require clarification from the Constitutional Court.

Quote"It may even be necessary to change the constitutional norm on the impossibility of changing the Basic Law of Ukraine during martial law," the political scientist says.

As another example of a non-standard situation that may arise when the war drags on, he cites the terms of office of the President of Ukraine, the Verkhovna Rada, and local governments.

Quote"These terms are determined by the Constitution of Ukraine. But elections cannot be held during martial law," he describes the vicious circle in terms of the law.

Here, of course, it is possible to change the norms of martial law, but it is very difficult to hold elections in conditions of a full-scale war, when millions of Ukrainians have become internally displaced persons and refugees, Fesenko believes.

Therefore, a situation may arise with the need to postpone elections during the war, but this is also difficult to normalize. In addition, after the war, there may be a powerful demand for political renewal and a new Constitution.

Quote"I won’t be surprised if an initiative to draft and adopt a new Constitution of Ukraine may arise from different political sides," the expert concludes.


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