Legislative drafting techniques as a means of giving effect to the rule of law. The case of Ukraine

Abstract

Ukraine is currently carrying out some reforms recommended by the Venice Commission of the Council of Europe and by the European Commission (in order to become a Member State of the European Union), in order to strengthen democracy, the Rule of Law, human rights and protection of minorities. The purpose of this article is to demonstrate that legislative drafting techniques are a means to give effect to the principle of the Rule of Law, when it comes to Ukraine; and to recommend that Ukraine improves the way its institutions draft/scrutinise bills, and adopts best practices from Europe. The methods of this article will be those of an analysis of constitutional law. The article will rely on the definition of the principle of the Rule of Law (given by A.V. Dicey and developed by Lord Bingham) and the idea that legislative drafting techniques can be seen as a means to give effect to such a principle. The Ukrainian current constitutional context (viz., the impossibility of amending its Constitution under martial law, due to Article 157 of the Constitution of Ukraine) will be considered. Some pieces of Ukrainian legislation will be analysed in the light of the Venice Commission’s recommendations. Some of the main legislative drafting techniques and their aims, in the light of the best practices from Europe, will also be analysed. The results of the article will set out that in such a current constitutional context, where the recommended reforms can be implemented only by Acts of Parliament (although some amendments to the Ukrainian Constitution would be appropriate), in Ukraine the quality of primary legislation becomes crucial to give effect to the Rule of Law. Therefore, the scientific novelty of the article will be to test general concepts with regards to the exceptional constitutional circumstances of Ukraine. The conclusions, thus, is that Ukrainian institutions (such as the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine and the President of the Republic of Ukraine) should improve the way they draft/scrutinise bills, adopting best practices from Europe, in order to improve the quality of primary legislation and, thus, to give effect to the principle of the Rule of Law.