Is the Risk of Winning the War in Ukraine but Losing Democracy Real?

Sergiy Panasyuk

Ukrainian-American Concordia University

The whole Ukrainian Nation is currently deeply focused on war issues, and winning against the aggressor is, for sure, the most important aim for all Ukrainians.

Because of the terrible psychological pressure that Ukrainians are under due to constant artillery bombing, air attacks by Russian troops, and almost daily deaths, the emotional state of Ukrainians may lead the Nation to irrational views.

Democracy, derived from the Greek words “demos” and “kratos”, and meaning “the power of the people”, is one of the main modern constitutional principles. But democracy is realized as the rule of the majority's will, and if that calls for a strong leader instead of democratic principles, such an exercise of the power of the people can be named democracy only as a linguistic term, and not as the rule of law with democratic principles.

That is why when people are under emotional, economic, social, and other pressures because of war, they may emotionally choose the wrong way of thinking, misleading themselves that democracy in this thicker sense is not as important as a “strong leader”.

In an official opinion poll released on August 18, 2022, 58% of Ukrainians said that the most important thing for Ukraine now is a strong leader, 79% believe that the President should interfere in the activities of the Parliament and the government (to strengthen defense), and 62% believe that during the war even constructive criticism of the authorities is unacceptable. But only 14% of respondents support the democratic system. Additionally, it should be emphasized that only 41% of responders are not prepared to allow for any law violations by authorities, even if such violations are said to be necessary. Thus the majority are prepared to allow for some law violations by authorities, if the authorities say they are needed. This is a very worrying signal because, in the author's opinion, allowing for selective law violations by authorities, in general, may lead to general permissiveness.

For sure, on the one hand, we can understand people’s feelings, conditions and points of view, which are possibly more emotional than rational. But on the other hand, as a Professor in constitutional law, I am very worried about these views and hope that such public sentiment will not become a common political mood.

In truth, democratic constitutional principles like the separation of powers or checks and balances can be successfully fulfilled in Ukraine only if the Parliament is independent of the President. But the current Parliament is pro-presidential, and given that during martial law, peaceful meetings can be limited and elections are banned (for example), Ukrainian democracy is facing a huge test.

The Ukrainian Constitution logically prescribes some limitations during martial law (for example, Art. 41, part 5; Art. 43, part 3; Art. 64, part 2; Art. 157, part 2), but some current governmental limitations have already violated these constitutional principles and provisions.

An example of such a violation can be seen in the ban on broadcasts by the Parliament's tv channel "Rada" of Parliament meetings during martial law. Such a ban is allowed by the Ukrainian Constitution (Art. 84, part 1) as an exception, but not on an ongoing basis, even if Ukraine is under martial law.

Another example is the ban which prevents almost all men between the ages of 18 to 60 from crossing a national border to leave Ukraine. That ban was put in place by changes to the ordinance of the Cabinet of Ministers in violation of Ukrainian constitutional provisions (Art. 33, part 1), which require that such measures may only be prescribed by the law.

But the real reason for the author's fear is not only, at first glance, the minor constitutional violations, but that many people both accept and agree with such limitations, even if they directly violate constitutional provisions. 

Ukraine is facing a challenging situation in many spheres, but this should not change the acceptance of democracy by the Nation. Unfortunately, we have not won yet. And in case of insufficient economic and military help from our partners, it could be that the Ukrainian government could be pushed into negotiations with the aggressor without winning on the battlefields.

And in this case, the People should be the first constitutional and democratic gatekeepers to control every word and step in such future agreements. Ukraine should not rely on a strong leader, but only on democracy, and the People should be the real source of the State's power!

People should unemotionally and very carefully analyze all governmental words and actions, as well as the political activities of the opposition and the President’s opponents, who might speak and act not for the win but for their own political rankings.

That is why, despite the current situation, which pushes people to believe not in law but a strong, and maybe even an autocratic, leader as well as autocratic governmental principles, people will not mislead themselves that a strong leader is better than democracy, as they mistakenly believe now.

The Ukrainian nation should never forget about the rule of law and democratic principles. Any economic, political, or other challenges – indeed even war – can't cancel democracy, which is the one way from the darkness of autocracy to the light of democracy. 

This post is based on a presentation for the Chance for Science Conference 2022, which was initiated by the Leipzig University. For the named presentation, the author received the "Legal Award".

Sergiy Panasyuk is a Professor in the Department of General Studies of the Ukrainian-American Concordia University (Kyiv, Ukraine); a Professor in the Department of Law of the European University (Kyiv, Ukraine); an academic consultant to the Judges of the Constitutional Court of Ukraine; and the Editor-in-Chief of the Ukrainian Law Review

Suggested citation: Sergiy Panasyuk, ‘Is the Risk of Winning the War in Ukraine but Losing Democracy Real’, IACL-AIDC Blog (11 October 2022) https://blog-iacl-aidc.org/new-blog-3/2022/10/11/is-the-risk-of-winning-the-war-in-ukraine-but-losing-democracy-real.