Memorandum of the Kharkiv Human Rights Group with regard to the threat posed by the “political reform
27 September 2005, the Kharkiv Human Rights Group (KHPG) issued an “Open letter regarding the threat of ‘political reform in Ukraine. Today, in this “Memorandum” we will attempt to go somewhat deeper into the arguments presented succinctly in the open letter. In contrast to previous publications of the KHPG about the ‘reform, here we propose to consider its basic conception and the attempts at implementing it on the formal judicial, purely procedural level.
It is clear that a vote on introducing amendments to the Constitution of Ukraine adopted in 1996 may be held solely in accordance with the procedure set down in Articles 154 – 159 of the Constitution. This procedure comprises the content of Section XIII of the Constitution (the Main Law) and is protected by the entire constitution-based legal system. One need only refer to the fact that on the basis of Article 156 of the Constitution of Ukraine any modification whatsoever of Articles 154 -159 would need to be approved by a mandatory All-Ukrainian referendum. Such procedure in the purely judicial sense testifies to the absolute nature of the according constitutional procedure, the general inviolability of the judicial procedural form.
It should also be noted that such procedure is envisaged by the best constitutional models current in the world. The Constitution is a document which, as well as liberty, safeguards the stability of the legal system as a whole, and the latter, in its turn, begins with the principle of the inviolability of the constitutional form, of the material and procedural norms of its text. The inviolability of the constitutional form is a crucial component part, the condition of its legal content, while the procedural norms of the Constitution are the main judicial guarantees of the values enshrined in its basis. In awareness of this, we would stress that a “package” vote on a draft law introducing amendments to the current Constitution of Ukraine was and remains unacceptable from a judicial point of view.
The possibility of voting in constitutional amendments as part of a “package”, that is, together with amendments to any other parts of national legislation is never mentioned either in the Constitution or in Ukrainian legislation in general. Nor is this by chance since “package” voting is a classic example of “linked” voting or “a vote on certain conditions” (it is no accident that two questions may not be combined in one point of a referendum). Such voting means that the expression of will with regard to one normative act in the “package” version is strictly linked with analogous (in the sense of the choice between “for” or “against”) voting in connection with another normative act. From the psychological point of view, this denotes direct interference with the motivational part (phase) of an individuals act of will. Expressing this more simply, each parliamentarian when voting, while having the duty to define his or her position and think about one thing, needs at the same time to take into consideration something quite separate and different.
In the case of the Ukrainian vote on constitutional amendments, the situation is made worse by the fact that this “package” combines draft laws of different judicial force, that is, normative acts which belong to fundamentally different legal registers. As a result, the changes to some norms of current legislation are conditional upon amendments to the entire constitutional normative mass, while the change to a significant group of norms at a constitutional level are dependent upon amendments to provisions of normal (ordinary) law. We are forced to acknowledge that in the given case a procedural move was made which falls under the definition of a legally prohibited reverse: the fate of norms of current legislation determines the fate of norms of the Constitution of Ukraine. This means that the content of a norm of a lower judicial level potentially (before the voting itself) and kinetically (during the actual voting) used the content of a norm at a significantly higher judicial level.
From the formal logic point of view this means that the attitude of parliamentarians to the norm of a lower judicial force not only could optionally influence, but directly determined their attitude to a norm of the highest judicial force. The opposite side of the coin was also present, however since this was, from a judicial point of view, more acceptable (correct), we will not comment on this aspect. In an organic legal system an inadmissible direction was thus taken: a norm of current legislation (the amendment to the law on elections) a priori determined the content of a constitutional norm. That is, the normative nature of an ordinary, tactical and operational level governed the normative-axiomatic system of law (the Constitution being a collection of legal axioms). From the point of view of cybernetics, this could be compared with the artificial creation of information noise when taking fateful managerial decisions. As a result, the “package” voting has not clarified, as is demanded by the fundamental principles of constitutional procedure, but blurred the consciousness of State Deputies (parliamentarians) when voting on issues of truly general State significance and content.
One of the fundamental features of the Ukrainian constitution-based legal system lies also in the fact that the possibility is not recognized for discretionary powers for State executive bodies and bodies of local self-government. On the basis of Article 19 of Constitution of Ukraine, “State executive bodies and bodies of local self-government, and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”. This automatically implies a prohibition on a higher body of legislative power – the Verkhovna Rada (parliament) of Ukraine – attempting any free modifications of strict constitutional, as well as other legal procedures. Unfortunately, just such a modification (a spontaneously made reconstruction) of constitutional procedure can be seen in the “package” voting.
Moreover, as is indicated in Article 157 of the Constitution, „The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. As a teleological interpretation (according to its designated purpose, functional role) of this norm shows, the Constitution of Ukraine may not be amended (even where formal procedure is adhered to) in conditions where the public situation is excessively impassioned, turbulent and emotionally unstable. The prohibition on introducing amendments to the Constitution of Ukraine during such a period should in no way be understood in a formalistic sense. The given prohibition is defined not only by the letter, but also by the spirit of the Constitution, as is most clear to constitutional judges. Thus, in order to introduce constitutional amendments, relative social harmony, reason and civic quiet are needed. The “package” vote, in contrast, took place at the height of civic confrontation, in conditions of revolution, albeit revolution where no blood was shed.
All of the above convinces us that the “package” vote on introducing amendments to the Constitution was an overt and flagrant violation of the Constitution of the Ukraine, in particular its Section XIII (Articles 154 – 159). Organic constitutions are usually “wise” legal documents, which envisage in advance the existence of the danger of political challenges which can provide temptation for the governing elite. As the oracle in the science of management, Peter Drucker, once commented, political ambitions are boundless and are capable of destroying the character of any person. Exceptions are conceivable, but they only serve to confirm the rule. The temptation to change the established order of things is one of the typical features of human nature. It is specifically this temptation which, by definition, constitutional order safeguarded by guarantees of stability is called upon to counteract. Any other way of thinking on this would be a betrayal of the universal principles of constitutionalism.
Ukraines democracy is at an early stage, and its state of political stability can easily be shattered. The newly-elected President of Ukraine proclaimed as a political objective Ukraines becoming part of a united Europe. Ukraines European choice was supported in December 2004 by the people on Maidan. However, the contemporary European way stipulates not only a well-developed, but also a crystallized, legal awareness. All of this would be better to understand here at home ourselves, than to read it between the lines of the latest conclusions from the Venice Commission. Unfortunately the constitutional reform, just as the overall style of its introduction in Ukraine, does not yet bring us closer, but on the contrary distances us significantly from Europe.
In our opinion, these circumstances demand from the President that he involve the Constitutional Court in an analysis of the situation. The issue which is now before him would seem specifically from the judicial point of view entirely transparent. The President of Ukraine as Guarantor of the National Constitution must appeal to the Constitutional Court to provide interpretation of the norms of Section XIII (Articles 154 – 159) of the Constitution. That is, it is necessary to ascertain from the Court whether the possibility of the recent “package” vote held can follow from the constitutional procedure for introducing amendments to the said Constitution. It would seem that adherence to the canons of the rule of law would make the answer to this question unambiguously clear.
 Prepared by KHPGs constitutional expert, V. Rechytsky