Ukraine’s Constitution and its Guardian Court

Ukraine’s constitutional order is a nexus of political and legal systems that were established in the 1990s and evolved in the 21st century to ensure that Soviet power practices and normative nihilism would not return to harm achieved rights and liberties. The founders of the independent republic came to a consensus on the constitution only in 1996, after almost five years of debates. This made Ukraine the last of the post-Soviet states to define its constitution. But the slowness of the polylogue among the different power groups and political institutions led to a text that applied the political wisdom learned by the late-Soviet generation to the benefit of the post-independence generations.

This collective wisdom aimed at overcoming the ills of Soviet politics and at ensuring that totalitarianism would not return. For example, the republic’s founders set constitutional norms banning the government from establishing an ideological monopoly or from stripping individuals of citizenship. The emerging constitutional order also fragmented the Soviet-era supreme power into the branches of government and autonomous power centers. These elements were to establish a sophisticated system of checks and balances for a new post-communist democratizing nation.

Ukraine’s constitutional cocktail mixes liberal and late-Soviet legal-political elements to ensure that no political group would be able to establish control over all centers of power. It also includes autonomous institutions to make usurpation even more difficult, such as the National Bank, the Ombudsperson, and the Constitutional Court. The latter has a special systemic role as the guardian of constitutional checks and balances. It must decide the compliance of all governmental decisions, laws, and decrees with the constitution. The court’s 18 members—six appointed by the president, the parliament, and the Congress of Judges each—are the only official interpreters of constitutional norms.

The Constitutional Court was expected to play countermajoritarian and enlightening roles; that is, to invalidate unconstitutional acts approved by other branches of power and to promote social norms not yet accepted by a majority in society. Both roles are critically important for Ukraine’s European integration.

Sadly, in the 28 years of its existence, the court has rarely been able to fulfill this raison d’être. Instead, it has been vulnerable to informal influence by successive presidents, oligarchic clans, and judges’ corporate egoism. The latter refers to their salaries and privileges, which shapes their thinking too often. Thus, it has often betrayed the constitution. For example, in 2003, it allowed President Leonid Kuchma to be elected for an unconstitutional third term by using Kafkaesque formalistic arguments; and, in 2010, it reverted constitutional amendments made following the Orange Revolution that increased the powers of parliament and decreased the president’s authority, which made President Viktor Yanukovych much more powerful than his predecessor. 

Due to such political “flexibility,” the Constitutional Court peacefully coexisted with Ukraine’s presidents until 2020 when Volodymyr Zelensky started creating his “power vertical.” The conflict between the presidency and the court was a new phenomenon. Post-Euromaidan reforms made the judiciary more autonomous, which has influenced the behavior of its judges. Under Zelensky, the Office of the President initially seemed less able to establish informal control over the court than under President Petro Poroshenko. For these reasons, the court started behaving in an unprecedentedly independent way and entered into institutional conflict with the Office of President and the National Security and Defense Council.

Despite growing risks for Ukraine’s security from the COVID-19 pandemic and then from Russia’s full-scale invasion, this conflict lasted until May 2022, when the chairperson of the Constitutional Court, Oleksandr Tupytsky, retired at the end of his term. In that period, the court approved several decisions that rejected the constitutionality of some post-Euromaidan reforms. For example, in 2020, some of its decisions stopped activities of the new anticorruption system as well as the new e-assets declaration. The presidential team responded to this with the submission of an urgent draft law to parliament that declared these decisions “insignificant.” At the same time, the Cabinet of Ministers ordered the restoration of the activities of the anticorruption agencies. This was the first time in the history of independent Ukraine that the executive openly refused to follow decisions of the court.

The conflict grew when Zelensky tried to suspend Tupytsky, which exceeded the president’s constitutional powers. In response, in December 2020, the court ruled that this presidential decree was “legally insignificant.” During the next 13 months Zelensky and the court’s judges undermined each other’s legitimacy. Civil society activists, who tried to defend the anticorruption reforms, supported the president, while the Supreme Court supported the Constitutional Court. This conflict shook the institutional foundations of the constitutional order at a time of existential threats for Ukraine.

Zelensky was the winner in this conflict. The Constitutional Court almost fully lost the ability to participate in the constitutional process when the country was dealing with further European integration and resistance to the Russian invasion.

Since then, the court has functioned with decreasing efficiency. First, the invasion interrupted its work in February and April 2022. Then, several of its judges resigned in 2022, and the mandate of three more will expire by end of this year. With only 13 of its intended 18 members, the court has barely been able to make decisions in the past two years. This is also the reason why it has had only an acting chairperson since Tupytsky’s retirement, which limits its ability to function even more. While the conflict with the presidency is over, this institutional impotence has left the constitution an orphan.

This is reflected in the mounting number of constitutional issues left unresolved in the wartime context. The collision between the constitutional five-year limit on the presidential term of office and the legal prohibition on holding a presidential election under martial law is a major one. There are also issues with the rights of national minorities and with relations between the government and religious organizations that require the court’s involvement, but only the EU and its agencies currently care about them. Ukraine’s constitutional order needs the guardian court to be back.

Reform of the Constitutional Court, which is part of the EU membership requirements, offers a way out. This focuses on the restoration of its membership through a transparent selection process. Accordingly, in 2022, parliament created a six-member Advisory Group of Experts that should preselect the candidates to be appointed by the president, the parliament, and the Congress of Judges. International or national organizations that assist the state with legal and anticorruption reforms nominate three of the group’s members, who have the decisive voice when the six are tied.

The Constitutional Court is still in dire shape, but a solution is close. With full membership and a new chairperson, it may become a guardian of a Europeanizing Ukraine, where countermajoritarian and enlightening functions are highly needed. And it will be needed one day for drafting a new constitution that reflects new realities and opportunities for Ukraine. Post-Soviet democratization is in the past. When the war is over, Ukraine will work fully on its socioeconomic recovery and EU membership. The changes involved should be reflected in a new constitution and a better, more proactive role for its guardian.

Mikhail Minakov is principal investigator for Ukraine and editor-in-chief of Kennan Focus Ukraine at the Kennan Institute of the Wilson Center for International Scholars. He was a visiting fellow of the program Ukraine in European Dialogue at the IWM in 2023.