06.08.2006 | Halya Coynash

Trading away the Constitution


I am no lawyer to question the law passed by the Verkhovna Rada yesterday, and already (such haste!) signed by the President. On the other hand, neither are the vast majority of the people attempting to follow the way the country is being shuffled about between people who seem worryingly deft at whipping the odd card in unnoticed.

Equally lacking in legal expertise are the majority of Deputies of the present Verkhovna Rada as yesterday’s legislative sprint graphically demonstrates. 

My question, which I will attempt to provide the background for below, is therefore far removed from legal finesse: Put most primitively, how can the country’s legislative body prohibit the Constitutional Court from determining the constitutionality of laws passed on Ukrainian territory where the “Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it”.

The “Law” thus passed is deceptively short.  No, let me rephrase that: it is short and insidiously deceptive.  It seems to suggest that the new judges of the Constitutional Court must not touch an agreement made before they took office, which changed the Constitution they are now authorized to protect and interpret.  All might seem fair if one was dealing with some kind of civil contract between individuals or legal entities, where you establish the goalposts from the outset.  

The point is (to state the embarrassingly obvious that unfortunately some seem willing to ignore): the Constitution of Ukraine is no contract (and most certainly not a football!), and must not be used for manipulative behind-the-scenes political carving up of any cake, however tempting the pieces of power thus extracted may be.

Just one more observation before considering what is really at stake. Warning lights begin, figuratively speaking, to flash in the mind of even the most legally uninitiated when one considers the period of 9 – 10 months where the Constitutional Court was prevented from functioning.  Prevented, we hasten to add, not by any force majeure circumstances, but quite brutally blocked by the same legislative body which yesterday speeded through a “law” to impose restrictions on the Court empowered to interpret the highest Law of the land.

What was in question was the “political reform” – constitutional amendments introduced in a law from 8 December 2004 which came into effect on 1 January 2006.  These amendments effectively took a lot of power from the President and transferred it to the Verkhovna Rada, also introducing a system of total proportional representation.

There has been serious criticism of the substance of these changes from the Kharkiv Human Rights Group, other human rights organizations and many constitutional law experts. There have, however, also been questions raised as to the SHEER VALIDITY of the amendments given certain irregularities and the circumstances in which they were passed.  Very briefly, these involve the following:

i)  whether amendments to the highest Law of the land can be passed as part of a “package vote” involving changes to ordinary legislation, in this case, electoral law.  It should be added here that this “package vote” was the result of political negotiations, and the electoral changes agreed were crucial to ensure that the re-run of the voting in the Presidential elections was not marred by the same flagrant vote-rigging, as in the first two rounds;

ii)  the fact that the same law had been voted on and rejected 8 months earlier, and the Constitution stipulates that a year must pass before a draft law may be reconsidered;

iii)  the said constitutional amendments were introduced in early December 2004, at the peak of the revolutionary events we call the “Orange Revolution”.  Article 157 of the Constitution clearly states: “The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. Given the famous linguistic skills of some illustrious members of the present Verkhovna Rada, one would imagine it would be more appropriate for the Constitutional Court to consider whether or not this constitutional norm was breached back in December 2004.

These are just a few of the very many points which place the validity of the Law passed on 08.12.2004 No. 2222-IV “On introducing changes to the Constitution of Ukraine” in question.  The questions raised must be answered by the Constitutional Court of Ukraine. 

The events in the Verkhovna Rada on 4 August 2006 fill one with a grotesque sense of deja vue.  Certainly it had all happened before, and if the “package vote” was not so overt, the political deal was entirely clear: Yushchenko agrees to not query the “political reform”, if the judges of the Constitutional Court are sworn in, including the judge agreed by “Nasha Ukraina”, etc.  The above account is necessarily incomplete, but not through naivety: of course, the wheeling-dealing involved much more, but words like transparency, openness, not to speak of considering the will of the people, would seem to have been forgotten. And, frankly, it’s all too depressingly nauseating to rummage deeper.

Especially because of the grotesque aspect involved: in December 2004 people were considerably more tolerant of such behind-the-scenes agreements, because the stakes were so desperately high.  What were the stakes yesterday?

I would respectfully suggest that as a matter of the greatest urgency the requisite 45 State Deputies of the Verkhovna Rada of Ukraine put forward a submission to the Constitutional Court of Ukraine asking for the latter’s interpretation as to the constitutionality of

i) the Law of Ukraine No.79-V “On introducing amendments to Section IV  “Final and transitional provisions of the Law of Ukraine “On the Constitutional Court of Ukraine”, passed and signed by the President on 4 August 2006 and

ii) the Law passed on 08.12.2004 No. 2222-IV “On introducing changes to the Constitution of Ukraine”

I would also suggest that human rights and civic organizations put maximum effort into achieving such a review by the Constitutional Court of Ukraine..

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