Ukraine is far from the only democracy to have faced war. Indeed, the 20th century saw many states both being attacked and invading others while preserving their democratic practices. But the Ukrainian case is unique. Shortly after Russia’s full-scale invasion, Ukraine applied for and was later granted EU candidate status. This means the country has not only had to preserve but actually advance its democratic institutions as it resists Russia’s aggression.
The European Commission has set out recommendations on the reforms necessary for Ukraine’s candidacy to proceed. These include changes to some central institutions of the judiciary, including in the selection of judges for the constitutional court, as well as anti-corruption reforms. But martial law restricts the ability of Ukraine’s legislative and executive to implement some reforms if doing so could jeopardise national security. How has the government coped with this over the past year? And have Ukraine’s democratic institutions demonstrated the same remarkable progress and resilience as its armed forces?
The judiciary, the constitutional court, and the fight against corruption
Around half of the European Commission’s recommendations focus on the judiciary and the rule of law. The main task is to increase transparency in the selection of constitutional court judges and ensure the process is not subject to political influence.
Reform in this area began after Ukraine’s Revolution of Dignity in 2014. But, before the war, this had stalled in both of the bodies responsible for vetting, hiring, and prosecuting judges. In 2019, Ukraine’s High Qualification Commission of Judges was dissolved by President Volodymir Zelensky due to its poor performance in vetting and selection procedures. Then, just days before the all-out invasion, 10 of the 15 members of Ukraine’s Supreme Council of Justice – which regulates the judiciary – resigned in response to checks on their own integrity, paralysing the institution.
But judicial reform has got back on track over the past year. In December 2022, Ukraine’s parliament passed a bill that defines the process of selecting judges for the constitutional court. The Council of Europe’s advisory body on constitutional law – the Venice Commission – then requested amendments, which the government has promised to deliver as a matter of urgency. Moreover, the supreme council was relaunched in January 2023 and is expected to select new members of the high qualification commission this spring.
Ukraine’s judiciary plays a central role in combating corruption. This is a major concern for Ukraine’s international partners, who provide significant funding to support the country’s economy, military, and infrastructure. Last year, Ukraine took a significant and long-awaited step forward by appointing a new prosecutor general in its anti-corruption prosecutor’s office. The results were palpable: in cooperation with the national anti-corruption bureau (NABU), the prosecutor’s office conducted a record-breaking 300 investigations in the latter half of 2022. The appointment this week of a new director for NABU should further strengthen cooperation between the two bodies and help assert their political independence. Continued reforms could translate into a renaissance in Ukraine’s fight against corruption, potentially bringing some of the country’s most prominent companies and oligarchs to justice for the first time.
The parliament (Verkhovna Rada)
In 2014, Ukraine’s revised constitution technically elevated the status of parliament above that of the president. The proper functioning of the Verkhovna Rada is therefore crucial to the preservation of Ukrainian democracy. Most MPs stayed in Ukraine after the all-out invasion and continued to fulfil their duties; the legislative never stopped functioning. In fact, it has considered more than 1,700 draft laws over the past year. It has also played a vital role in implementing the European Commission’s recommendations by drafting and passing the necessary bills.
Still, some good practices have suffered. Notably, for the period of martial law, the Verkhovna Rada has stopped publishing its agenda and broadcasting its sessions. The government justifies this by the need to keep their time, place, and contents hidden from the enemy. The details of bills reviewed in parliament only become available after their official publication, which leaves the public and stakeholders with very few mechanisms to prevent the passing of dubious laws. So, transparency has suffered over the past year – despite the parliament’s productivity and commitment to pursuing reforms.
A parliamentary election is scheduled for autumn 2023. But Ukraine’s constitution does not permit elections under martial law. The timing of this election will be crucial: if it is held immediately after the war, that would disadvantage opposition candidates – but delaying it even more would result in a longer mandate for the current parliament that could be used to consolidate its power. Beyond timing, there are currently 6.5 million internally displaced people in Ukraine and 7.8 million refugees abroad. It will require substantial effort to ensure their equal right to vote and access polling stations.
In addition, multiple ethical and legal dilemmas emerge from the reintegration of de-occupied territories into democratic procedures. For example, the question of whether to swiftly enfranchise people who have lived under occupation since 2014 or who moved to those territories from Russia is likely to require considerable discussion within Ukraine and including international human rights organisations. Parliamentary deliberation on legislation surrounding these issues will be complex and require uneasy compromises.
The president and his office
Zelensky has become a symbol of Ukrainian courage and resilience, which undoubtedly helped Ukraine’s political system weather the shock of the invasion in February 2022. Internationally, his leadership has reassured Ukraine’s allies of the continuity of the country’s political functioning. Ukraine has now operated under martial law for more than a year – and Zelensky has never overstepped his constitutional duties.
The office of the president played a central role in building a network of support for the country and establishing close contacts with the governments of its allies. However, the functions and framework of this institution are not specified in the constitution, prompting some concerns about the range of responsibilities it has assumed. Ukraine’s presidential decree defines the office as an advisory body. But, in practice, its head is the second most powerful person in Ukraine, while other members sometimes duplicate the functions of cabinet ministers – especially in foreign relations. Some members have even represented Ukraine in negotiations with Russia. This ambiguity predates the war and has required resolution for decades – but the significance of the president’s image to the war effort may deepen the problem the longer the war continues.
Nevertheless, Ukrainian democracy is clearly holding up in the face of Russia’s aggression – and has even managed to advance in some areas. The longer the war continues, however, the more difficult it will become to preserve the country’s democratic practices. Ukraine’s allies cannot guarantee the future of the country’s democracy, but they can help avoid a long war by providing Kyiv with further military support. Only this can accelerate the liberation of Ukrainian territories and an end to the constraints of martial law.
The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.