Has the window closed? The Future of Ukraine’s Constitutional Overhaul

Conclusions of DRI’s two-day public forum

The window for crucial constitutional reforms in Ukraine – decentralisation, judiciary and human rights – is still open, but it is becoming more difficult. Some reforms more likely to happen than others. Here are the main conclusions of DRI’s two-day public forum on Ukraine’s constitutional reforms, which took place 4-5 February 2016 in Kyiv, Ukraine.

The most politicised reform is decentralisation, which has few chances of being passed. Its progress depends on external factors, such as The Constitutional Court allowing a delayed final vote on the decentralisation package and the manner in which Minsk II is implemented. The forum acknowledged that early parliamentary elections would lead to a reform standstill, with parties switching to campaign mode. Participants also agreed on the importance of decentralisation and the need to separate this long awaited reform from the Minsk process, as decentralisation started decades before Minsk II. According to experts and implementers of the reform, the key to successful decentralisation is capable “territorial communities” that can progress decentralisation. The creation of such communities should continue even if the constitutional changes are further postponed.

The judiciary
Amendments to the judiciary were preliminarily approved on 2 February, the last day of the third parliamentary session. There is therefore a reasonable timeframe in which to build public support and mobilise the necessary 300 votes in Parliament to pass these amendments by Mid July 2016. Forum participants identified ‘integrity, professionalism, and judicial ethics’ as key assessment criteria for the re-appointment of judges.

Human rights
Despite its transparent and inclusive approach, the Constitutional Commission’s working group on Human Rights has not yet presented its final draft of amendments to the President. The most controversial issues for the general public and those intensively discussed in the working group are: 1) existing social welfare guarantees and their restriction or abolishment; 2) the right to bear weapons as constitutional right; 3) prohibition of discrimination based on sexual orientation. All forum participants agreed that Ukrainians should feel ownership of the constitutional process and changes. To achieve this, more public discussion, transparency and communication efforts are needed. At the same time, international partners continue to support the process and follow it with sympathy.
Comments from key speakers

Ambassador Jan Tombiński, Head of the EU Delegation to Ukraine, said that Ukraine’s constitutional process seems to be not only perpetual, but to follow a patchwork approach and violate the basic legal principles of clarity and transparency. It hinders Ukrainians in understanding and participating in the changes. He defined decentralisation as “empowering of people […], a devolution of power from those who are nominated to those who are elected” and said that decentralisation was a key reform that has to be set in the constitution. He also acknowledged that a difficult general political context in Ukraine requires a “strong steering body in the centre” that would carefully check the implementation of the reform and ensure the unity of Ukraine.

Oleksiy Filatov, Deputy Head of Presidential Administration, Head of the Constitutional Commission Working Group on Judiciary, said that after the preliminary approval of the constitutional amendments on judiciary by the Parliament there is a time window to work on political consensus and gain the required majority in the next months. He added that the elaborated changes are a big step forward in guaranteeing the de-politicisation of the judiciary (the President and the Parliament will be deprived of the right to nominate judges), increasing of the responsibility of judges (functional immunity) and re-loading of the judiciary corps. As a member of the Constitutional Commission, he gave assurances that the changes to the Human Rights Chapter of the Constitution will be finalised and discussed with Venice Commission and the public in the upcoming months.

Ambassador Dr. Christoph Weil, German Ambassador to Ukraine, referred to the main question of the conference, if the “window for crucial reforms in Ukraine has closed,” saying “not yet”. However, taking into account the urgency of the long awaited reforms he wished the “window” would close very soon – with the reforms passed. He said that judiciary reform was a key priority to fight corruption and establish rule of law and reminded the forum that the ongoing constitutional process does not solve the existing problem of checks and balances between state institutions. He also noted that the Minsk process is for now the only format of discussions accepted by Russia, and despite the many critics, the implementation of Minsk II has to be taken as chance to settle the conflict.
The public forum was attended by over 150 participants, including members of the Constitutional Commission and Presidential Administration, policy makers, experts, civil society, human right activists, international organisations, diplomatic missions and the media. The event was organised by DRI with support of the Constitutional Commission of Ukraine and under DRI’s project with Taras Shevchenko National University of Kyiv’s Institute of International Relations. The project is funded by the German Federal Foreign Office.

Live streaming of event was provided by the USAID RADA Program.

Watch the full video recording of Day 1 and Day 2.
The photo report of the event is available: Day 1 and Day 2.

See the timelines of key constitutional reforms prepared by DRI:

Timeline Decentralisation

Timeline Judiciary

Timeline Human Rights

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