In 1996, the Verkhovna Rada adopted the first Constitution of independent Ukraine, in this way breaking the main link with the Soviet-era lawmaking chain.
Since then, 28 years and several constitutional crises have passed. However, the basic law of the country has fulfilled its main historic mission — our state, despite the great war, remains a legal European democracy.
Currently, there is a lot of talk about further progress and renewal of the Constitution, but Russia stands on the way of this, because during martial law, changing the basic law is prohibited by Chapter XIII of the Constitution itself.
However, sooner or later these changes will become possible. They should, in particular, remove contradictions with the modern worldview of progressive states: for example, the norm "marriage is based on the free consent of a woman and a man" discriminates the LGBTQ+ community.
Before the Constitution Day, Hromadske TV channel spoke with the retired judge of the Constitutional Court Petro Stetsiuk about the future of our basic law; whether Ukraine's accession to the European Union will require changes and if the CCU — the only state body of constitutional jurisdiction — works efficiently.
On June 25, Luxembourg officially announced the start of negotiations on Ukraine's accession to the EU. Will our accession require an amendment of the Constitution?
This question has two aspects. The first one — in 2019, the Constitution was amended to provide for Ukraine's course towards full membership in the European Union and NATO. These changes influenced the preamble, which states the irreversibility of the European and Euro-Atlantic course of our state.
Also, the articles defining the powers of the president, the parliament and the government said that the Verkhovna Rada forms the policy of the EU and NATO membership, the president acts as a guarantor of the implementation of this course, and the government is responsible for its implementation. This second aspect is no less important.
After the actual accession to the European Union, it will be necessary to make changes to the basic law, as certain powers need to be transferred to the jurisdiction of the EU — Petro Stetsiuk, former judge of the CCU.
We currently do not know what these powers will be, but we can look at the experience of other European countries. For example, when Croatia joined the European Union, an article appeared in its constitution that defined the basis for its membership and transferred some constitutional powers of the EU.
It said that Croatia, as a member state of the EU, "participates in the creation of European unity in order to ensure lasting peace, freedom, security and prosperity together with other European states." Later, in other laws, other details were defined, such as participation in the EU institutions and the rights of EU citizens on the territory of Croatia.
Such practice exists in many European countries. They use different approaches: from creating separate articles to amending the existing ones. Ukraine's full membership in the EU will definitely require constitutional changes.
What is the future of our basic law in the context of integration with the European constitutional traditions?
The document for independent Ukraine adopted by the parliament in 1996 became the second basic law after the 1918 Constitution of the Ukrainian People's Republic. The current version formally was the Constitution of a post-Soviet Ukraine, a state that parted with the Soviet totalitarian system and aspiredto become a modern European constitutional state.
For integration with the European constitutional traditions in the future, Ukraine may need to significantly update the current basic law or even adopt a new one. Such a document should meet the modern requirements and challenges of the 21st century.
The new basic law should support sustainable development, taking into account the threats and challenges that have emerged since the end of the past century. Therefore, the future of the Constitution in the context of European integration lies in its modernization. It should meet the modern standards of a European constitutional state.
Do you think that the 1996 Constitution already fulfilled its role in the context of statehood and democratic processes?
The 1996 Constitution is not only a document that lays down basic constitutional principles but also a symbol of Ukraine's transition to a new era marked by the development of civil society and legislative support for democratic ideals.
The Constitution fulfilled a key historical mission in the period of transition from the Soviet country to the modern constitutional state. The 1996 document laid down the foundations for transformation of a former Soviet Ukraine into a modern European constitutional state. It established the principles of division of powers, rule of law, democracy and protection of human rights — Petro Stetsiuk, former judge of the CCU.
Were there instances where international law came into conflict with the Constitution of Ukraine?
The EU is a union of countries, where each one has its own constitution. There is no unifying basic law of the EU, although there have been attempts to create one. This means that contradictions between our law and the constitutions of individual European countries do not automatically mean contradictions with the European Union.
Of course, our national legislation is not fully harmonized with the EU legislation. We have to adapt our laws to the European standards.
For example, in the process of obtaining the status of a candidate for EU membership, our state met seven key conditions, including the restart of the High Qualification Commission of Judges and adoption of laws on media and national minorities. These changes are necessary for further progress on the path to the EU.
Regarding specific contradictions, we can mention the remarks of some EU countries, such as Hungary, regarding Ukraine’s legislation on national minorities or the official language. They are often biased and do not receive the support of the majority of the EU member states. The issues of minority rights and media freedom are part of a broader context that includes the fight against corruption and democracy-building.
Ukraine in its present state cannot resist the demands of the European Union too much, because joining the EU and NATO is critically important for the country's security and development. Therefore, our state must meet the conditions put forward by the European Commission in order to obtain full membership. We must adapt our legislation to the European standards.
And what about Article 51 of the Constitution, which states that marriage is based on the free consent of a woman and a man? Does it conflict with the legislation of European countries?
I have not heard about any demands to change this article. It was absent from the seven proposals made by the European Commission. As for future talks, we do not yet know what specific changes may be suggested.
Possible changes will concern the procedure for ensuring the rights of minorities, including the LGBTQI+ community. We have no fundamental problems with this issue: for example, "Equality Marches" are held in Ukraine, and there is no formal discrimination based on sexual orientation — Petro Stetsiuk, former judge of the CCU.
The Constitutional Court must ensure the supremacy of the basic law. In what period did it work the most efficiently? Is it fully functional now?
The Constitutional Court is a key mechanism of a developed state. It has two main tasks: interpreting the Constitution and judging on the constitutionality of laws and regulations. In different countries, such bodies have different names: the Constitutional Tribunal in Poland, the Constitutional Council in France, the Federal Constitutional Court in Germany. But their essence remains the same.
For the Constitutional Court to function efficiently, other state institutions should work normally: an independent parliament, and a system of checks and counterbalances between the legislative, executive and judicial branches.
If these conditions are not met, for example, in case of authoritarianism or a fake parliament, the Constitutional Court loses its functionality. This is characteristic of many post-Soviet countries: in Belarus, the Constitutional Court does not actually function, and in Russia it is completely subordinated to the government.
CCU was created in 1996. During this time, it saw both achievements and failures. The most productive period was in 2008-2009, during the presidency of Viktor Yushchenko, when the Constitutional Court passed more than 33 decisions of the CCU Grand Chamber. From February 2023 to June 2024, the court passed only one decision, which indicates a significant decrease in its efficiency — Petro Stetsyuk, former judge of the CCU.
What are the reasons for the low efficiency of the CCU now?
This can be explained by several factors. They say, all this is because there is a problem with the insufficient number of judges. So it is. However, in my opinion, this is not the main reason.
Indeed, according to the constitutional requirements, the CCU should have 18 judges, but it currently has only 13. This does not ensure the full functionality of the court, since at least 12 judges are needed to make decisions, and someone may be sick or absent for other reasons.
The second aspect concerns the procedure for appointing judges. This process is known for its complexity and duration, which can lead to significant interruptions in the work of the CCU and deterioration of its efficiency. In January 2025, the term of office of three judges will expire, which may further aggravate the situation with the insufficient number of its members.
The third aspect is that the Constitutional Court is often simply not approached with questions of constitutionality. In particular, the President, 45 People's Deputies, the Cabinet of Ministers and the Verkhovna Rada's Human Rights Commissioner have the right to do this.
Perhaps the Constitutional Court is not needed by the current system of government and is unable to make decisions due to the lack of appeals. It can be assumed that the authorities are afraid or wary of the court — as a result, they simply do not use the mechanism that the basic law gives them.
It is impossible to change the basic law in wartime. Still, how can the war with Russia, even after the victory, influence further changes in it?
There are no perfect constitutions, and the 1996 Constitution of Ukraine, like any other, has its advantages and disadvantages, which can be improved and adapted to modern requirements.
The war with Russia has shown the need for changes in the Constitution for better organization of defence and adaptation to new challenges. For example, today we are facing global problems, climate change and international terrorism. And Russia itself is actually acting as a terrorist.
The provisions on martial law and state of emergency in our basic law are too general and need to be detailed. For comparison, the Polish Constitution has a separate chapter on the state of emergency with three categories: natural disaster, internal crisis and armed aggression. Perhaps we should adopt such an approach in the future — Petro Stetsiuk, former judge of the CCU.
Benjamin Franklin, one of the founding fathers of the United States of America, said: "Ask not God what the Constitution can give." The basic law should ensure a better life for citizens, protect their rights through democratically elected institutions — such as the parliament, the president, and the independent Constitutional Court.
Which areas of the constitutional reform would you prioritize in Ukraine?
I will single out the main shortcomings of the 1996 Constitution, which were laid down from the very beginning. The first is the illusory or declarative nature of the second section on human rights and freedoms. The problem is that it is written more like a "socialist showcase" of the idea of rights. These declarations of rights and freedoms are very cool, but not all of them can be implemented.
If the right to free healthcare could be implemented, how could the right to an environment safe for life and health be implemented? We had a terrible environmental situation after the Chornobyl disaster, so this point in principle could not be guaranteed by the state.
The second problem of the Constitution is in the hierarchy of power. There are legislative, executive and judicial branches. The president formally leads the state, his main powers are foreign policy and defence. And he "wants" to lead the executive power. In reality, there is an excess of authority, because he wants to rule more.
A separate problem of the 1996 Constitution is the status of the Autonomous Republic of Crimea, which was inherited from the Soviet Union. There was no reason to preserve such a status of Crimea in the new basic law. For 50 years, until 1991, it was simply a region within the Ukrainian SSR, but it was not a national, Crimean Tatar autonomy. Why was it necessary to give political autonomy to the residents of Crimea — what differs them from the residents of Chernihiv region? Nothing — Petro Stetsyuk, former judge of the CCU.
These so-called innate problems were hidden but began to harm our constitutional development. Over 30 years, the basic law was changed 7 times, which led to imbalances in the text.
Whereas the Constitution has fulfilled its historic mission, it must be constantly improved. We have launched the process of joining the EU and NATO, and will have to work out a new Constitution, leaving the flaws and shortcomings in the past. This will be a normal process of our development.
Perhaps for a certain period it would be better for us to have a temporary basic law, while drafting a new Constitution of a European state, a full member of the European Union.
