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06.07.2006

Human Rights in Ukraine – 2005: Adherence to the Constitution of Ukraine

   

Adherence to the Constitution of Ukraine in 2005[1].

The situation as regards observance of constitutional norms in Ukraine during 2005 cannot be considered as a whole to have been satisfactory. The main problem in this area arose as a result of the legally incorrect introduction of amendments to the Constitution of Ukraine (the Law of Ukraine No. 222-IV from 8 December 2004), as a result of which the presidential – parliamentary republic of Ukraine turned into a parliamentary – presidential republic.  Without embarking on an analysis of the political essence of the constitutional changes (this analysis was presented in “Human Rights in Ukraine – 2004”), we must note that the serious infringements of constitutional procedure in the course of making amendments to the Main Law of Ukraine have led to a situation whereby not only the Ukrainian and international communities, but even the very initiators and implementers of this so-called “political reform”, are not entirely sure of the legality and legitimacy of the steps they have taken.

Lack of clarity as regards the political and legal situation in the country, in turn, meant that the “reformers” back in October 2005 began creating artificial obstacles against any possible review of the results of the changes by the Ukrainian Constitutional Court.  The direct and covert actions of the Verkhovna Rada and its speaker, Volodymyr Lytvyn, in this direction had been predicted in advance by certain Ukrainian and foreign analysts.  The former Adviser to the President of Ukraine on legal matters and Judge of the US Court of Federal Claims, Bohdan Futey, spoke, in particular, of the strong likelihood that parliament would block a review of the results of the changes by not swearing in the new intake of judges of the Constitutional Court.  One can now even state that all the main events in the realm of “process and procedural” Ukrainian constitutionalism unfolded in 2005 according to the scenario foreseen by Judge Futey. However one needs to add other details in order to further explain and analyze the state of affairs.

In particular, according to the norms of constitutional legislation one of the duties of the Constitutional Court of Ukraine is to provide “official interpretation of the Constitution of Ukraine and of the laws of Ukraine” (paragraph 1, point 2 of Article 150 of the Constitution of Ukraine). In addition, the Constitutional Court is authorized to receive and pass judgement on questions regarding the conformity with the Constitution of Ukraine of laws, decrees of the President and other normative legal acts. The decisions of the Constitutional Court in interpreting or checking the constitutionality of laws “are mandatory for execution throughout the territory of Ukraine, …  final and shall not be appealed.”  (Article 150 § 2 of the Constitution of Ukraine). While the Constitution of 1996 does not directly stipulate the number of constitutional judges who must vote for a  decision “mandatory for execution”, the Law of Ukraine “On the  Constitutional Court of Ukraine” from 16 October 1996 stipulates that a decision of the Constitutional Court is considered passed if no less than 10 constitutional judges vote for it.

Furthermore, the responsible (effectively controlling) role in introducing any amendments to the national Main Law is vested in the Constitutional Court of Ukraine.  In particular, “a draft law on introducing amendments to the Constitution of Ukraine is considered by the Verkhovna Rada of Ukraine “upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution”.

Article 157 of the Constitution in turn states that « the Constitution of Ukraine shall not be amended, if the amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine. The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”.  As for Article 158 of the Constitution, this says that: a “draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than one year from the day of the adoption of the decision on this draft law. Within the term of its authority, the Verkhovna Rada of Ukraine shall not amend twice the same provisions of the Constitution”.

The Constitutional Court of Ukraine is thus empowered to fulfil both analytical and controlling functions.  The Court carries out these tasks in accordance with special rules set down in norms of domestic (material and procedural) legislation. The main legislative sources here are Sections XII and XIII of the Constitution of Ukraine, the Law of Ukraine “On the Constitutional Court of Ukraine ” from 1996, as well as the Regulations of the Constitutional Court of Ukraine.  According to the Main Law, the Constitutional Court of Ukraine is made up of 18 judges, with the President, the Verkhovna Rada and the Congress of Judges of Ukraine each appointing (partly actually electing) an equal number of judges, that is, each chooses 6 judges for the Constitutional Court.  The Constitution and Law also lay down a number of special requirements for candidates to this highest court post. All judges of the Constitutional Court of Ukraine are appointed for nine years without the right of appointment to a repeat term. There is also an age limit with judges unable to continue in their post after reaching 65, the age of retirement age. According to the political (constitutional) “reform”, if the need arises, the judge may be dismissed by the body or state official responsible for appointing them (Article 85 § 1, point 26, Article 106 § 1, point 22 of the Constitution of Ukraine).

Soon after the adoption by the Verkhovna Rada of Ukraine in October 1996 of the Law of Ukraine “On the Constitutional Court of Ukraine” the first judges were appointed. Given the 9-year term of office which the Constitution stipulates, and the ban on their reappointment, as well as the norm regarding retirement age, the term of office of more than half of the judges of the Court was due to expire in October 2005.  Through a combination of various circumstances, which from the outside would seem by chance, all of the above created a fierce political and legal collision in Ukraine. As Bohdan Futey had predicted in his analysis, from the formal point of view the mass exodus of constitutional judges from their positions should not have created serious organizational or political problems. However, given the situation with the constitutional reform, in practice this exodus of the first intake of judges turned into a real political and legal crisis, leading to serious complications in the force of the constitutional principle of the division of power. The main stumbling block here was the procedure for swearing in the newly-appointed constitutional judges. The essence of the matter was as follows.

Firstly, the Verkhovna Rada was unable (in fact did not want) to appoint the appropriate number of constitutional judges in accordance with its quota. Secondly, the leadership in parliament, represented by Volodymyr Lytvyn consistently ignored the requirements of the Constitution of Ukraine and of the Law of Ukraine “On the Constitutional Court of Ukraine” with regard to swearing in the constitutional judges already appointed by the other parties with this authority. This resulted in an effective lack of working constitutional judges. The activities of the highest and single body of constitutional jurisdiction of Ukraine were suspended for an indefinite period. One can say that from October 2005 the Constitutional Court of Ukraine de facto fully ceased to function.

In order to better understand and correctly assess the situation, it is worth recalling particular provisions of the relevant legislation.  In accordance, for example, with Article 46 of the Law of Ukraine “On the Constitutional Court of Ukraine”, proceedings into a case are launched on the basis of a constitutional submission or constitutional appeal submitted by the parties stipulated in the Constitution. The relevant procedure should be initiated by the Constitutional Court at its special session. For this, on the basis of Article 47 of the Law a panel (effectively two panels) of Judges of the Constitutional Court needs to be formed.  The Law of Ukraine “On the Constitutional Court of Ukraine” stipulates that only a panel of judges may vote “for” or “against” launching proceedings into a case. This formally means that any session of the Constitutional Court regarding the launching of proceedings shall be considered to have competence if there are no less than eleven members of the Constitutional Court present.  In order for a case to be accepted (or to be rejected) at least six judges of the eleven present at the session must have voted for it.

The Law of Ukraine “On the Constitutional Court of Ukraine” also demands that consideration of the merits of a case be carried out at a plenary session. It is precisely at plenary sessions that the Constitutional Court adopts decisions on issues foreseen by point 1 of Article 13, and also gives its opinion on issues set down in points 2, 3 and 4 of Article 13 of the Law of Ukraine “On the Constitutional Court of Ukraine”.  According to the Law, a plenary meeting of the Constitutional Court is considered to have competence to adopt decisions if there are at least twelve judges of the Constitutional Court present.   Moreover, decisions of the Constitutional Court on the merits of a case are considered to be adopted and opinions approved at a plenary meeting if they were voted for by no less than ten judges of the Constitutional Court. 

  We thus see that the rules and procedure stipulated both in the Constitution and in legislation for the working of the Constitutional Court of Ukraine require that both in launching proceedings into a case, and in deciding on the merits of a case, there needs to be a minimum number of judges present. As mentioned, 11 constitutional judges constitute a minimum quorum for a session of the Constitutional Court to be able to launch proceedings or to decide against doing so. No less than 12 judges should be present at a plenary session of the Constitutional Court when considering and ruling on the merits of a case. At least 10 judges need to vote for a specific decision or conclusion.

Bearing in mind the circumstances which meant that in October 2005 the term of office of most of the judges of the Constitutional Court was coming to an end, the latter’s political and judicial ability to work lay in the hands of the Verkhovna Rada of Ukraine (effectively of the Speaker of Parliament, Volodymyr Lytvyn). .The procedural side of the matter proved to be of principal importance and hinged on the fact that each newly-appointed judge (regardless of whether he or she was appointed by the President, the Verkhovna Rada or the Congress of Judges of Ukraine), before commencing their duties, needed to be sworn in at a special session of the Verkhovna Rada of Ukraine. As is stipulated in Article 17 § 3 of the Law of Ukraine “On the Constitutional Court of Ukraine, a judge of the Constitutional Court „ “swears an oath of allegiance at a session of the Verkhovna Rada of Ukraine which is attended by the President of Ukraine, the Prime Minister of Ukraine, the Chairperson of the Supreme Court of Ukraine no longer than a month after his or her appointment as a judge of the Constitutional Court of Ukraine”. This means that if the Verkhovna Rada does not schedule a special session for the swearing-in of judges, or if any of the highest state officials do not agree or are unable to attend this session, the Constitutional Court will not be able to function. That is, its judges will simply not be able to take up their professional duties.

The subsequent development of events in Ukraine showed that it was not only Speaker of Parliament, V. Lytvyn, but also the former Chairperson of the Supreme Court of Ukraine, V. Malyarenko, who made certain efforts to prevent the Constitutional Court judges from being sworn in. Lytvyn, for example, not only consciously avoided organizing the swearing in of the judges, but actually gave public commentary on this to the Ukrainian and foreign media.  On the surface in his answers to journalists, what was involved was an attempt, in a, frankly speaking, strange way, of protecting the gains of the constitutional reform and preserving through this “order” and “stability” in the country. As for the former  Chairperson of the Supreme Court of Ukraine, V. Malyarenko, he resigned for the period of the parliamentary elections (for almost half a year), formally due to his being in the first five candidates for State Deputy on the candidate list of Lytvyn’s political bloc.  In taking this step, the former Chairperson of the Supreme Court not only acted in breach of special legislation on the court system and political parties which prohibits judges from being involved in any political activity, but also made it impossible for him to attend in official capacity the procedure for swearing in the judges of the Constitutional Court.

As a result, as particular analysts had predicted, the scenario involving the disruption of the swearing in procedure was deliberately orchestrated by high-ranking Ukrainian state officials. The formal legal procedure for taking an oath of allegiance was used in this case not as a stabilizing, but rather as a destructive political measure. As far as the possible motives for this are concerned, a possible explanation for the unlawful actions of V. Lytvyn and V. Malyarenko might be both their personal ambition and the conflict, seen since President Kuchma’s regime, between two Ukrainian political ideologies.  The competition between “east” and “west”, conservatives and democrats, present effectively since the “Orange Revolution” prevented not only the swearing-in of Constitutional Court judges, but even the very inclusion of the question of the swearing-in on the parliamentary agenda. At the same time, by sabotaging the swearing-in of judges already appointed, the Verkhovna Rada of Ukraine blocked the appointment of their quota of judges to the Constitutional Court.  This means that at present only 14 judges have been appointed to the Constitutional Court of Ukraine. The remaining candidates will have to be appointed by State Deputies of the new parliament.

In weighing up the consequences of the Verkhovna Rada’s carrying out of its constituent function from October 2005 to April 2006, it would be difficult not to conclude that the Ukrainian parliamentary body during this period was attempting to usurp the role of some kind of “main power” in the state. As a result, parliament not only did not appoint as per their quota the appropriate number of Constitutional Court judges, but also failed to allow those judges already appointed to commence their work.  Harsh as it may sound, the actions of the Ukrainian parliament in the given situation must be classified as a dangerous encroachment on the principle of constitutional legality, and the political strategy applied by Speaker of Parliament, Lytvyn, and former Chairperson of the Supreme Court of Ukraine, V. Malyarenko, as a direct abuse of their official position, whether or not politically tinged.  Regardless of all of the Speaker’s patriotic rhetoric, under his leadership parliament succeeded in removing the highest and single body of constitutional jurisdiction from the state mechanism.  By doing so, in real terms, it moved beyond the judicial limits laid down in Articles 6 and 19 of the Constitution of Ukraine. With its destructive actions the Verkhovna Rada seriously damaged the national judicial mechanism of checks and balances.  Through deliberate inaction, the Verkhovna Rada of Ukraine was in direct breach of Article 6 § 2 of the Constitution of Ukraine which states: “Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine”. The position of the Verkhovna Rada with regard to forming a new make-up of the Constitutional Court of Ukraine also ran counter to Article 19 § 2 of the Constitution where it is stipulated: “Bodies of state power 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.”

There can be no doubt that, since the amendments to the Constitution of Ukraine from 8 December 2004 envisaged the transfer of a large number of powers from the President to the Prime Minister of Ukraine by 1 January 2006, a lot of hopes were pinned on the Constitutional Court of Ukraine.  From the very beginning (the day of the vote for the amendments to the Main Law), a good many academics and politicians raised the issue of the shaky juridical basis for the “political reform” both in the procedural and in the material legal sense.  It would suffice merely to note that in the voting for Draft Law No. 4180 by the Verkhovna Rada of Ukraine, a large number of the same normative provisions were accepted  which had been rejected by the same body as part of Draft Law No. 4105 eight months previously. A parliamentary vote on Draft No. 4105, which was similar in its content to No. 4180 had been held on 8 April 2004, with its supporters that time receiving only 294 votes (that is, 6 votes less than was needed in order to introduce amendments to the Constitution of Ukraine).

Despite this, exactly 8 months later 410 State Deputies voted for the constitutional reforms as presented in Draft Law No. 4180.  The clear problem with time in the adoption by the Verkhovna Rada of this normative act is that the Constitution of Ukraine stipulates that a draft law proposing amendments to the Constitution which has been considered and not accepted, may not be resubmitted to the Verkhovna Rada until a year has elapsed from the day of the last vote in Ukraine’s parliament.

Furthermore, the vote in the Verkhovna Rada of Ukraine on 8 December 2004 was for a package of constitutional amendments as a whole, and not for individual provisions or articles. This was also a flagrant breach of law-creating procedure laid down in the Regulations of the Verkhovna Rada.  As a result, the parliamentary “hysterical” haste and judicial irresponsibility led to particularly serious consequences.  One is forced here to add the reminder that the present Constitution envisages two votes on any issue involving amendments to its text.  A draft law tabled by those empowered with legislative authority should first be supported by a simple majority (50% + 1), and then by a qualified majority (75%) of the constitutional composition of State Deputies of the Verkhovna Rada.  Although the current Constitution says nothing about which session of the Verkhovna Rada should hold the first vote on amendments, it contains a separate norm with regard to the second vote. The second vote on introducing amendments should take place at the “next regular” parliamentary session. Yet in the given case the vote on amendments to the Main Law was taken not at the standard regular session of parliament, but in the exceptional circumstances of the Orange Revolution. The procedural side, therefore, of the introduction of constitutional amendments in the form of draft law No. 4180 seems extremely problematical.

Another well-known circumstance in those events was the fact that the political compromise formalized in an agreement and reached between the candidates competing for the presidency after the second round of voting, included three innovations to be introduced during the re-run of the second round.  These were: a) each of the candidates was to have the same number of representatives in the make-up of electoral commissions; b) the overall number of absentee voter papers was not to exceed 0,5% of the overall number of voters on the district polling stations’ voter lists; c) the right to vote outside the polling stations was to be granted only to those disabled people officially recognized as needing this option.  However before the re-run of the second round, Presidential candidate Viktor Yanukovych submitted a petition to the Constitutional Court of Ukraine and soon received a decision from the Court annulling the recently agreed rules and procedure for voting outside polling stations. As a result of these actions a purely legal question arises as to whether one should regard as valid the agreement which had just been made between the presidential candidates. After all, one of the parties through his actions effectively rejected the agreement reached.

Under normal circumstances all of the above-mentioned problems with agreements and clashes should have been regulated long before the constitutional reform came into force. However, without the appropriate number of judges, the Constitutional Court, from October 2005 was not able to launch any proceedings. It was therefore unable to pass any rulings on the substantive issues. All of this makes it possible to conclude that the Ukrainian “political reform” entered into force on 1 January 2006 only formally. That is, as follows from the canons of constitutional law, all problematical aspects of the “political reform” will certainly need to be reviewed according to constitutional (court) procedure. Since the introduction of amendments to the 1996 Constitution of Ukraine changed the form of government in Ukraine from presidential to parliamentary-presidential, it would appear illogical were a transformation of such significance and content to be able to by-pass higher judicial and constitutional checks.

As Bohdan Futey noted in his analysis of the events around the Ukrainian constitutional reform, the problems and contradictions which the reform both led to and highlighted allow one to look at the Ukrainian legal situation in a significantly broader way than was previously possible. In particular, we are better able to identify and understand the difficulties which the Ukrainian judiciary encountered from the first years of the nation’s independence. Everybody knows that Ukraine, from1991, faced the need for wide-reaching transformation of the courts from bodies “associated with the Soviet system of telephone justice” (B. Futey) into a justice system based on the rule of law. This theme was widely debated back in the time when the Declaration of Ukraine’s state sovereignty was adopted.  However it was only in the winter of 2004 that the world had the opportunity to see the first strategic movement in the Ukrainian judiciary. As we know the Supreme Court of Ukraine, under considerable international and internal political pressure, did nonetheless succeed in passing a law-based judgement in the case of Yushchenko versus the Central Election Commission. The high rating which the Supreme Court was then awarded was truly deserved.  Many saw in this Ruling the Ukrainian response to international criticism which had earlier been directed at another judgment, that of the Constitutional Court of Ukraine in granting Leonid Kuchma permission to run for a third term as President of the country.  The Judgment of the Supreme Court taken during the Orange Revolution also had a clear positive impact on public opinion in the country. Unfortunately soon after the revolutionary events, the positive attitude of the population to the judiciary was once again undermined.

On 23 January 2005 in his inaugural speech on Maidan Nezalezhnosti [Independence Square] in Kyiv, President Yushchenko said that although Ukraine had formally been independent since 1991, it had only truly succeeded in becoming free now. The President made special mention of the fact that an independent court is of vital importance in asserting the principle of the rule of law in a country, and also stressed its particular role in the creation of Ukrainian civic society.  The President’s speech focused on the fact that the judiciary is the most important safeguard of human rights and freedoms, and the main instrument for fighting corruption.  Later, President Yushchenko appointed one of his political supporters, Petro Poroshenko, Head of the Committee on Judicial Reform. Clearly the actualization of the issue of judicial reform was, in itself, necessary and important. However the actions of the President proved unsuccessful due to the specific candidate chosen for the post.  As B. Futey noted in his analysis of Ukraine’s situation with judges, after this appointment the reform process within the judiciary became less transparent.  There was sometimes the impression that this process had simply reinstated the former pressure from the President’s Administration on the court system.

Since the old Verkhovna Rada had still not appointed its quota of judges, and also blocked for a long time the swearing in of the remainder of the newly appointed or elected Constitutional Court judges, the Kharkiv Human Rights Protection Group (KHPG) deemed it necessary to present its recommendations for resolving the situation.  For example, in the Human Rights Organizations Report “Human Rights in Ukraine – 2004”, we already put forward critical arguments with regard to the political essence of the Ukrainian constitutional reform. During 2005 the issue of this reform took on new procedural and legal aspects. We are convinced that the most unacceptable aspect in this case was the vote by the Verkhovna Rada of Ukraine on 8 December 2004 on constitutional amendments as part of a package with norms of current legislation.

In our opinion, the fact of this package vote on the reform made the latter fundamentally inadmissible, first of all, from a purely juridical and legal point of view. In addition, the flagrant and “extremist” nature of the procedural violations in the course of introducing amendments to the Constitution of Ukraine crystallized the entire post-totalitarian politics of the old Verkhovna Rada and its Speaker, Volodymyr Lytvyn.  In full awareness of all of this, we are proposing as a possible way out of a crisis situation that a submission be presented to the Constitutional Court of Ukraine on behalf of the President of Ukraine or from 45 State Deputies on the need for an interpretation of Article 155 and Article 157 § 2 of the Main Law of Ukraine..

The need for an interpretation of these parts of the Constitution of Ukraine was called for, in our opinion, by the procedurally unlawful vote on 8 December 2004  in the Verkhovna Rada of Ukraine on the Law of Ukraine from 08.12.2004 No. 2222-IV “On introducing amendments to the Constitution of Ukraine” together (in a “package”) with the Law of Ukraine  from 08.12.2004 No. 2221-IV “On specific aspects of applying the Law of Ukraine “On the Presidential elections” during the re-run of voting on 26 December 2004”.  We furthermore assert that the vote on amendments to the Constitution of Ukraine was held in conditions of revolutionary upheaval in the country. In our opinion, the joint vote on amendments to the Constitution and to an ordinary law of Ukraine, as well as in a situation of revolutionary upheaval, constitute an infringement of the rules for introducing amendments to the Constitution of Ukraine, laid down in Articles 155 and 157 § 2 of the Constitution of Ukraine.

We are deliberately leaving aside the question of the interpretation of the relevant norms of the Regulations of the Verkhovna Rada of Ukraine (Bulletin of the Verkhovna Rada of Ukraine, 1994, No. 35, p. 338), since the Regulations have the juridical status of a Resolution of the Verkhovna Rada and on that basis do not form part of the list of normative legal acts which the Constitutional Court of Ukraine provides interpretation of on the basis of Point 4 of Article 13 § 1 of the Law of Ukraine “On the  Constitutional Court of Ukraine”.

The actual state of the matter hinges on the fact that on 8 December 2004 with the country in a truly revolutionary situation, the Verkhovna Rada voted all together (as a “package vote”) for the Law of Ukraine from 08.12.2004 No. 2222-IV “On introducing amendments to the Constitution of Ukraine” and the Law of Ukraine  from 08.12.2004 No. 2221-IV “On specific aspects of applying the Law of Ukraine “On the Presidential elections” during the re-run of voting on 26 December 2004”.

We know that a vote on introducing amendments to the Constitution of Ukraine from 1996 can be held on the sole basis of the rules and procedure allowed for in Articles 154 – 159 of the Constitution of Ukraine.  These rules make up Section XIII of the Constitution of Ukraine and are under the protection of the entire national constitutional and legal system. Suffice it to note that on the basis of Article 156 of the Constitution any modification of Articles 154 – 159 have the mandatory requirement of approval by an All-Ukrainian referendum.  Such procedure in the purely juridical sense is evidence of the absolutism of the relevant constitutional procedure, and the general inviolability of the juridical procedural form.

  One should also note that similar procedure is standard and envisaged by the best existing constitutional models. A constitution is a document which, besides liberty, ensures the stability of the legal system as a whole, and this system in turn starts with the principle of the inviolability of the constitutional form, of the material and procedural norms of its content.  Inviolability of the form of the constitution is a necessary component part, the condition of its legal content, while the procedural norms of the Constitution are the main juridical guarantees of the values enshrined in its basis. In recognition of this, we would stress that a joint (“package”) vote on a draft law on introducing amendments to the current Constitution was legally inadmissible.

The possibility of voting fir amendments to the Constitution in a “package” with amendments to any other documents of domestic legislation is not mentioned either in the Constitution of Ukraine, or in Ukrainian legislation as a whole.  

Nor is this any accident, since after all, joint voting “as a package” is a classic example of linked voting or voting on condition. It is not by chance that in referendums it is forbidden to merge in one point of the formula of the referendum two questions. This means that the will of the people with regard to one normative legal act in the “package” variant is strictly linked with an analogous (in the sense of a choice “for” or “against”) vote on another normative legal act. From the psychological point of view this means a direct intrusion into the motivational part or phase of the individual act of will. More simply, each voting State Deputy, under the obligation to determine their position and think about the fate of one normative legal act, must in parallel take into consideration the fate of another, unrelated in its content with the first act. It is clear that such procedure can only have to negative consequences.

In the case of the Ukrainian  vote on amendments to the Constitution, the situation is exacerbated by the fact that the “package” contained draft laws with different juridical force, that is, there were acts belonging to fundamentally different legal registers. As a result, a change in several norms of current legislation were contingent upon a change in a whole constitutional legal complex of amendments (in particular, on changes in the form of government in Ukraine), while the change in a group of norms at the constitutional level depended upon amendments to provisions of ordinary law.  It must be stated that in this case a procedural act was carried out which falls within the category of a legally prohibited reverse situation, where the fate of a norm of current legislation determines the fact of a norm of the Constitution of Ukraine. This means that the content of a norm of a lower juridical level potentially (before the actual vote) and kinetically (during the vote) acted upon the content of a norm at a considerably higher juridical level.

In the formal logical sense this means that the attitude of parliamentarians to a norm of lower juridical force not only had an optional influence, but also directly influenced their attitude to a norm of the highest juridical force. The opposite side of the coin was also present, but since this in the juridical sense was acceptable (correct), it can be left without commentary. In this way something unacceptable in any organic legal system of government took place: a norm of current legislation (an amendment to electoral legislation) a priori defined the content at the same time of many constitutional norms.  This means that the normative power of an ordinary, operational level governed a normative axiomatic system of law (in the legal sense the Constitution is a collection of juridical axioms) through structural changes to its general meaning and content. From the point of view of the theory of management, this can be compared with the artificial creation of information noise when adopting responsible managerial decisions. As a result, the joint “package” vote did not elucidate, as the principles of constitutional procedure demand, but rather blurred the awareness of State Deputies in voting on issues of general state significance and substance.

One of the principle features of the Ukrainian constitutional legal system lies in the lack of recognition of the possibility of discretionary powers of state executive bodies and bodies of local self-government.  As Article 6 § 2 of the Constitution of Ukraine states: “Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine”.  In Article 19 § 2 of the Constitution this requirement  is specified by a particular norm which stipulates: “Bodies of state power 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”. 

The general level and specific limits of freedom of choice in any particular actions (variants of behaviour) of state executive bodies and bodies of local self-government, as well as of their officials, are defined directly by norms of the Constitution and laws of Ukraine, and are not subject to broadened application. From this, in turn, the ban automatically follows on the highest body of legislative power – the Verkhovna Rada of Ukraine – attempting any free modifications of strict constitutional procedures, as well as of any others envisaged in Ukrainian law.  Unfortunately the “package” vote of 8 December 2004 was just such a modification (a spontaneous reconstruction) of constitutional procedure.

We know that before the vote on 8 December 2004, Ukrainian State Deputies arranged, that is, they made an agreement to vote on a “package”. However we would stress that the constitutional law of Ukraine is an area not of private (or civil), but of public law in which “freedom to make agreements” with regard to the highest state bodies of Ukraine is not recognized. In the juridical sense this means that in Ukrainian constitutional law free agreements within bodies of state power have no legal basis. Thus a mutually linked vote on constitutional amendments and common law is a flagrant breach of the requirements of the Constitution of Ukraine and a serious distortion of its procedural norms.

Here we consider it necessary to stress that the “package” vote devalues the highest juridical force of the norms of the Constitution, but cannot devalue the ordinary law.  The latter’s very dependence, after all, on the Constitution is a component of the asumption of the said Constitution’s higher force. There is also the formal aspect: in the constitutional list of powers of the Verkhovna Rada (Article 85 of the Constitution) there is no mention of the possibility of making free agreements with regard to the procedure for introducing amendments to the Main Law.. Nor is there any mention of the possibility of interconnected voting in a “package” of constitutional and ordinary amendments in the Regulations of the Verkhovna Rada of Ukraine.

Furthermore, as is stipulated in Article 157 § 2 of the Constitution of Ukraine: “The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. A teleological interpretation (on the intended purpose and functional role) of the given norm shows that the Constitution of Ukraine may not be changed (even given compliance with formal procedure) in conditions of excessively heightened emotions, partisan and politically galvanized public opinion. The prohibition on introducing amendments to the Constitution of Ukraine in such a period should in no way be understood as a formality. The given ban is defined not only by the letter, but also by the spirit of the Constitution of Ukraine. Thus, in order to introduce constitutional amendments, relative social harmony, balance and civic rest are required.  The “package” vote instead took place at the peak point of civic confrontation, in conditions of, albeit bloodless, nonetheless real revolution.

All of the above convinces us that the joint  (“”package”) vote on introducing amendments to the Constitution of Ukraine was a grave violation of the Constitution’s own norms, for example, Article 155 and Article 157 § 2 of the Constitution. Organic constitutions are legal documents which foresee possible threats of political challenges which are tempting for the political elite of any country.  It is clear that political ambitions are unbounded and can corrupt even the strongest character.  Exceptions in the given case are possible, but they only serve to confirm the rule. Thus, the temptation to make changes to the established order of things is one of the typical features of any political establishment. It is precisely such temptation that the constitutional order, protected by guarantees of stability, is designed to withstand.  Any other attitude would in our view be a betrayal of the universal principles of constitutionalism.

Ukraine is a young democracy, and is therefore especially easily swayed towards disruption of political balance. The newly-elected President of Ukraine declared Ukraine’s political objective to be becoming part of a united Europe.  Ukraine’s European choice was supported in December 2004 by the people on Maidan Nezalezhnosti [Independence Square] in Kyiv. However the modern European way of thinking envisages a very highly-developed legal awareness. It would be better to understand this fully ourselves, rather than reading it between the lines of the latest opinion from the Venice Commission. Unfortunately, the juridical style of introducing the “political reform” in Ukraine does not yet bring us closer, but rather significantly distances us from Europe.

This is, for example, effectively confirmed by the Opinion regarding observance of procedure during the introduction of amendments to the Constitution provided by the National Commission for the Strengthening of Democracy and the Rule of Law[2], which specially mentions the inadmissibility of adopting amendments to the Constitution as a “package” vote. Moreover, the Commission noted that the Law passed on 8 December 2004 No. 2222-VI in its content differed from the draft law which the Constitutional Court had previously given a positive assessment of, this breaching Article 159 of the Constitution of Ukraine. Nor did it comply with the Judgment of the Constitutional Court from 9 June 1998 regarding an official interpretation of Article 158 § 2 and Article 159 of the Constitution of Ukraine.  The Commission reached the general conclusion that the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004 should be viewed as an actum nullum ab initio [an act which is invalid from the outset] and could therefore not be considered a component part of the current Constitution of Ukraine.

  In our opinion, all of these circumstances demand the involvement of the Constitutional Court in an analysis of the situation. We are therefore proposing that a petition be addressed to the Constitutional Court asking for an interpretation of Article 155, Article 157 § 2 of the Constitution of Ukraine, that is, asking the Court whether the possibility of the interconnected “package” vote held on 8 December 2004 by the Verkhovna Rada can be deemed to constitute correct legal procedure for introducing amendments to the Constitution of Ukraine.

In particular, elucidation in the form of an official interpretation of Article 155 and Article 157 § 2 of the Constitution of Ukraine is needed, in our opinion, to clarify the following legal questions:

a) whether the procedure for introducing constitutional amendments in accordance with the rules of Article 155 of the Constitution of Ukraine allows for the possibility of a joint  “package” vote on both introducing amendments to the Constitution of Ukraine and making amendments to an ordinary law of Ukraine;

b) whether  it follows from the use by the Verkhovna Rada of Ukraine on 8 December 2004 of a joint “package” vote on the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004, together with the Law of Ukraine  from 08.12.2004 No. 2221-IV “On specific aspects of applying the Law of Ukraine “On the Presidential elections” during the re-run of voting on 26 December 2004” that the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004, cannot enter into effect;

  c) whether  it follows from the fact that, in conditions of a basically revolutionary situation, the Verkhovna Rada of Ukraine held a vote on passing the No. 2222-VI “On introducing amendments to the Constitution of Ukraine” from 8 December 2004, that the given Law cannot have legal force since it was adopted with infringements of the requirements foreseen in Article 157 § 2 of the Constitution of Ukraine;

  d) whether it is possible at all to introduce amendments to the Constitution of Ukraine by means of a joint “package” vote on those amendments together with amendments to current Ukrainian legislation.

  In concluding our analysis of the level of compliance with the requirements of constitutional legality in Ukraine in 2005, we would also like to express certain reservations regarding the fact that in accordance with the “political reform”, the Verkhovna Rada of Ukraine and the President of the country have the opportunity not only to appoint, as before, but also to dismiss those judges of the Constitutional Court whom they appointed (point 26 of Article 85 § 1, point 22 of Article 106 § 1 of the Constitution of Ukraine). Although a comprehensive list of grounds (procedural guarantees) for the early dismissal from office of constitutional judges is provided in the Law “On the  Constitutional Court” of Ukraine from 1996 р., practice in reality suggests that the norms of the ordinary (as opposed to constitutional) legislative level are far from always taken into account by high-ranking Ukrainian state officials.  In particular, the norms of precisely this juridical level were ignored by President Yushchenko in 2005 when dismissing Sviatislav Piskun from his post as Prosecutor General of Ukraine.  Nor was the precedent created in the vote in the Ukrainian parliament in 2006 on the dismissal of Yury Yekhanurov’s government any better.  At that time Ukrainian State Deputies under the leadership of Speaker V. Lytvyn ignored procedural norms at already a constitutional level.

We are firmly convinced that the maintaining of full influence of the Ukrainian parliament and President on the professional fate of judges of the Constitutional Court, who are highly-paid and therefore sharply distinguished from the state apparatus, will lead to their effectively being transformed from judges to puppets of the executive or legislative branches of power in the state. And this, in light of the constitutional principle of the division of power and of the rule of law, is absolutely inadmissible.

 

Recommendations

1  that the newly-elected Verkhovna Rada of Ukraine must, as soon as the possibility arises, ensure the immediate swearing-in of the judges of the Constitutional Court already appointed by the President of Ukraine and the Congress of Judges of Ukraine;

2  that the newly-elected Verkhovna Rada of Ukraine must, as soon as the possibility arises, appoint the remaining judges of the Constitutional Court in accordance with their quota, and that it then also swears in their judges;

3  that those authorized (the President of Ukraine, 45 State Deputies of Ukraine, etc) should present a submission to the Constitutional Court of Ukraine asking for an interpretation of Article 155 and Article 157 § 2 of the Constitution of Ukraine, the results of which could legally and finally decide the fate of the Ukrainian “political reform”;

4  Regardless of whether the Judgment of the Constitutional Court of Ukraine be positive or negative with regard to the fate of the “political reform”, it is necessary to abolish the procedure according to which (point 26 of Article 85 § 1, point 22 of Article 106 § 1 of the Constitution of Ukraine in the version updated in accordance with the “reform”) the President of Ukraine and the Verkhovna Rada of Ukraine are empowered not only to appoint, but also to dismiss judges of the Constitutional Court



[1]  Prepared by Vsevolod Rechytsky, constitutional specialist for the Kharkiv Human Rights Protection Group

[2]  Opinion regarding observance of procedure during the introduction of amendments to the Constitution of Ukraine of 1996 through the adoption of the Law of Ukraine “On introducing amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV and on the conformity of its provisions with the general principles of the Constitution of Ukraine of 1996 and with European standards”, passed at the third plenary session of the Commission on 27 December 2005. Available (in Ukrainian) on the Ministry of Justice’s website:: www.minjust.gov.ua.

 

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