The Constitution of Ukraine: Parliamentary Constitution-Making and Institutional Arrangements in 1996

In 1996, constitution-making in Ukraine entered a period of concentrated parliamentary consideration. On 5 May, the Verkhovna Rada adopted Resolution No. 169/96-ВР, establishing a Temporary Special Commission to revise the draft submitted by the Constitutional Commission and address comments from those entitled to introduce legislation. It included representatives of different parliamentary factions and groups and was chaired by Mykhailo Syrota. Parliamentary speaker Oleksandr Moroz signed the founding resolution and also chaired the final plenary sitting.

This division of work connected revision with the final vote: the commission organized the wording and coordinated amendment proposals, while the full parliament decided whether to accept them. In the stenographic record of 28 June, Syrota repeatedly explained provisions on the commission's behalf, and Moroz conducted votes item by item. Amendments proposed by President Leonid Kuchma also entered the discussion.

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The sitting that began on 27 June continued into the next day. Its final part still addressed limits on constitutional amendment, the date of entry into force and transitional provisions. Members debated, for example, whether to delete the word “restrict” from the prohibition on amendments affecting human rights. The deletion proposal received only 98 votes and failed. The powers of district councils in cities were resolved through a compromise allowing them to continue exercising their authority in accordance with law.

On 28 June, the draft as a whole received 321 votes on second reading, followed by 315 in the final third-reading vote. Article 160 provided that the constitution took effect on the day of adoption. Law No. 254/96-ВР, passed the same day, declared the new constitution adopted and repealed the repeatedly amended 1978 constitution and the interim Constitutional Agreement between the Verkhovna Rada and the president. The law bore the names of Moroz and Kuchma.

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The original 1996 text defined Ukraine as a sovereign, independent, democratic and social state governed by the rule of law, while establishing a unitary system, popular sovereignty and separation of legislative, executive and judicial powers. Article 8 gave the constitution supreme legal force and direct applicability, allowing citizens to seek judicial protection of rights directly under it. Article 55 further allowed court challenges to decisions, actions and inaction by state bodies, local self-government bodies and officials.

Rights guarantees were linked to social pluralism. Article 15 prohibited imposing an ideology as mandatory state belief and prohibited censorship. Article 22 barred new legislation from narrowing the substance and scope of existing rights. The language provisions designated Ukrainian as the state language while guaranteeing the free development, use and protection of Russian and other minority languages.

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The original Article 76 provided for a Verkhovna Rada of 450 deputies with four-year terms, while the president was elected by citizens for five years. The president appointed the prime minister with the consent of more than half of parliament's constitutional membership. Other cabinet members were appointed by the president on the prime minister's nomination. The cabinet was responsible to the president and subject to parliamentary supervision and accountability within the constitution's limits.

This arrangement connected the executive to both president and parliament while giving the president strong appointment powers. The president could terminate the prime minister's authority, and the cabinet had to tender its resignation to a newly elected president. Conversely, a Verkhovna Rada vote of no confidence in the cabinet required its resignation. These were the institutional rules at adoption in 1996.

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The Constitutional Court consisted of eighteen judges: six appointed by the president, six by the Verkhovna Rada and six by the Congress of Judges. They served non-renewable nine-year terms. Constitutional amendment followed a separate procedure. Ordinary amendments first required preliminary approval by a parliamentary majority and then at least a two-thirds majority at the next regular session. Amendments to the chapters on general principles, elections and referendums, and constitutional amendment also required approval in a nationwide referendum. Article 157 prohibited amendments abolishing or restricting human rights, and prohibited constitutional amendment during martial law or a state of emergency.

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The new constitution preserved existing laws insofar as they did not conflict with it, and required formation of a cabinet and Constitutional Court under the new rules within three months. Judicial restructuring had a longer transition; existing procedures for arrest, detention and searches of homes were permitted to continue for five years. The Constitutional Court law adopted in October 1996 further specified the Court's operations and procedures for constitutional interpretation.

The Venice Commission's formal opinion in 1997 welcomed the new text's advances while noting the president's considerable powers and the cabinet's pronounced dependence on the presidency, and criticizing some judicial transition periods as too long. The constitution's immediate entry into force thus began a process of further legislation and institutional change: the rights and checks established in its provisions still had to be realized through specific procedures.

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