NATO’S Aspirations in the Constitutional Preamble of Ukraine: Distorting Historical Roots of the Constitution or Reflecting Societal Changes?

Justin Frosini & Viktoriia Lapa

Bocconi University

On 27 March 2020 the Republic of North Macedonia acceded to NATO and became its 30th Member State. With similar aspirations to North Macedonia, other states like Ukraine also hope to accede to NATO. What is more, they have decided to set it in stone by making an explicit reference to their NATO (and also EU) aspirations in the Constitution. Indeed, Ukraine changed its basic law in order for it to reflect the intention of the country (or rather the Government of the time) to join the EU and NATO.

The Amendments to the Constitution of Ukraine

On 3 September 2018 the President of Ukraine introduced a bill proposing changes to the Ukrainian Constitution in order to reflect the country’s aspirations to join the EU and NATO. To contextualize the amendments, at the end of his presidential term Petro Poroshenko made EU and NATO membership one of his top priorities during the election campaign. More specifically, he promised that if he was to be re-elected, he would apply for membership of the EU in 2023 and begin to implement the NATO Membership Action Plan. The Bill, however, was not examined by the experts sitting on the Constitutional Commission which is supposed to discuss amendments to the Constitution.

The above-mentioned bill of 3 September 2018 proposed to amend certain provisions related to the EU and NATO, including the preamble. The preamble would read as follows:

‘The Verkhovna Rada of Ukraine, on behalf of the Ukrainian people - citizens of Ukraine of all nationalities, … caring for the strengthening of civil harmony on Ukrainian soil and confirming the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine….’

We will concentrate on the preamble since it is not a common practice to change constitutional preambles (India being among one of the few countries that actually changed the preamble). Another reason for us studying this issue is because constitutional preambles have received limited attention in academic literature (see some recent works here and here). That said, the role of preambles should not be underestimated, and the changes to the Ukrainian constitutional preamble exemplify its importance.

Where does the Constitutional Court of Ukraine stand?

On 22 November 2018 the Constitutional Court of Ukraine (CCoU) rendered its Opinion stating that the Bill complied with the requirements under Article 157 and 158 of the Constitution of Ukraine. The Parliament of Ukraine adopted the Law on 7 February 2019 and it came into force on 21 February 2019.

The controversial nature of the Law is highlighted by six judges who wrote separate opinions. Two of these separate opinions, which heavily criticize the decision of the CCoU, stand out.

First, CCoU Judge Oleksandr Lytvynov in his Opinion (para.1) underlines the fact that the constitutional preamble should be considered as one of the elements of the constitutional order which can be changed only by the people of Ukraine through an all-Ukrainian referendum. In other words, he thinks that the amendments should have been put to a referendum.

Second, in a similar vein, CCoU Judge Mykola Melnyk claims (para.2) that the ССoU should have сautioned as to the arbitrary changes to the preamble. In particular, he emphasizes the fact that in the preamble the Constitution had fixed the specific historical moment in which it was adopted; thus, by amending it, the Parliament had ‘meddled with history’. Moreover, one should underline that the preamble plays an important role with regard to constitutional interpretation, and is used as a tool for understanding the original sense of the Constitution:  the amendment of the preamble has thus inevitably reduced this role.

The Decision of the Ukrainian Constitutional Court – a Bow to Ex-President Poroshenko?

The possible interference with the historical pretext for adopting the Constitution raises several issues.

First, changes to the historical pretext and aspirations of the people at the time the Constitution was adopted bear some systemic risks to the future of the Constitution. The discourse as to the country’s aspirations echoes the debate on reference to ‘a socialist regime’ in the preamble which arose during the adoption of the Constitution. Indeed, the head of the Constitutional Commission, Mykhailo Syrota, argued that a reference to a specific regime would bind the state to follow the latter. On the contrary, the absence of a reference of this nature would allow Ukraine to choose the regime according to the political parties present in the Parliament.

Moreover, the political elites should not change the substance of the preamble which reflects the political preferences of its citizens at a certain moment in time. To give an example, some scholars make a comparison with a hypothetical amendment such as ‘Ukraine establishes its Soviet identity and the irreversibility of its path towards membership of the CIS with the aim of reviving the Soviet Union’. Such an amendment, they claim, would undoubtedly be considered a change of the constitutional order by the CCoU and therefore would require the strict track procedure.

The same logic applies with regard to the aspirations to join NATO and the EU. It might be the case that one day another political party obtains a majority in the Ukrainian Parliament and would prefer to join another bloc. In this way the preamble becomes a tool in the hands of the political powers that can be used to gain the sympathy of the electorate. In our opinion, in order to avoid political manipulation, changes to the preamble should be evaluated very carefully.

Conclusions

The EU or NATO aspirations of various countries are clearly understandable, especially as a way of ensuring security for former Soviet states such as Ukraine. That said, the political elites should not try to cement such aspirations in the preambles to their Constitutions without following a lawful constitutional procedure. One has to remember the value of constitutional preambles not only as a tool of constitutional interpretation, but also as a reference to the historical pretext at the time of its adoption. Frequent amendments to the preamble run not only the risk of diluting its interpretational value, but more importantly they may distort the historical roots of the Constitution. Moreover, the political elites should not use the amendments to the preamble as a way to fulfill their political agenda. Political elites come and go and so do their short-term policies while, to use the words of Sarv Mittra Sikri, former Chief Justice of the Indian Supreme Court, constitutional preambles contain a ‘grand and noble vision’ that we believe should be handled with great caution.

Justin Frosini is an Associate Professor in the Department of Law, Bocconi University and Adjunct Professor of Constitutional Law at the Johns Hopkins University’s School of Advanced International Studies (SAIS). He is also the Director of the Center for Constitutional Studies and Democratic Development in Bologna, Italy.

Viktoriia Lapa, Ph.D. is a Lecturer at Bocconi University, Milan, Italy. Viktoriia previously worked as a public prosecutor in Ukraine and then as a lawyer at the international law firm Dentons in Ukraine.

Suggested citation: Justin Frosini & Viktoriia Lapa, “NATO’S Aspirations in the Constitutional Preamble of Ukraine: Distorting Historical Roots of the Constitution or Reflecting Societal Changes?” IACL-IADC Blog (30 June 2020) https://blog-iacl-aidc.org/2020-posts/2020/6/30/natos-aspirations-in-the-constitutional-preamble-of-ukraine-distorting-historical-roots-of-the-constitution-or-reflecting-societal-changes