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17.04.2007 | Oleksandr Merezhko

Constitutional crisis in Ukraine as a clash in interpretations

   

From the legal point of view, the underlying cause of the present constitutional crisis linked with the heightened confrontation between the President and the “Coalition of national unity” [hereafter the Coalition] is mainly in conflicting interpretations of the relevant provisions of the Ukrainian Constitution. This conflict has also, unfortunately, demonstrated that Ukrainian legal science has yet to seriously develop legal hermeneutics, or the study of the interpretation and understanding of law, however that is a separate subject.

Whereas the Coalition accentuates Article 90 of the Constitution which contains a comprehensive list of the grounds which may lead the President to terminate the powers of parliament ahead of term[1] (dissolve it), the President in justifying his decision relies on fundamental constitutional principles, i.e. less on the “letter” of the Constitution, then on its “spirit”. It could be said that we have a clash between two different legal philosophy and conceptual approaches to the interpretation of the Constitution, one focusing on the “letter”, the other systematic.

Which approach is more correct?

The first approach focuses on a specific article of the Constitution which it analyzes in isolation from the wider context. This means that it does not take into consideration the Constitution as a whole as a particular system, based on specific interrelated principles. Its adherents are as, a rule, supporters of legal positivism with the latter’s inherent dogmatism and reduction of law to juridical text. This focus on the letter is, moreover, in opposition to the theory of the rule of law which stresses the significance specifically of the law as a whole, and not a piece of legislation[2], since the law cannot be reduced to a mere legislative text.  A focus on the letter in interpreting the law can lead to lawlessness, i.e. to what Cicero and other Ancient Roman lawyers encapsulated in the formula “Summum jus, summa injuria” [The rigour of the law is the height of oppression].

With regard to this, one cannot fail to be surprised by the recent categorical statement about the “unconstitutional” nature of the President’s Decree by one of the most fervent supporters of the rule of law and “European values”[3]. This statement demonstrated a lack of understanding that the constitution of a state, based on the idea of the rule of law, is something more than the mere text, since there are underlying fundamental constitutional principles in the light of which the text must be interpreted. Absolutizing the significance of Article 90 of the Constitution at the expense of the fundamental principles of constitutionalism, this “Europeanized” lawyer consciously or unconsciously came out against the idea of the rule of law.

He as it were forgot that one of the requirements of a law-based state, as German constitutionalists stress is “the observance of the principle of justice in each specific case”.

The systematic interpretation, in its turn, interprets within the context of the system of law, i.e. interpretation bearing in mind the link between the norms within the system of law as a whole. Systematic interpretation takes into account the fact that these norms are interrelated and connected with various links, substantive, functional and logic. As well as this, systematic interpretation considers the wider socio-political context within which the system of law is functioning.

From that point of view, the Constitution is viewed as a whole system and is not a self-contained document seen in total isolation from socio-political reality. It is precisely the systematic interpretation of the constitution which lies at the foundation of, for example, German constitutionalism. As German constitutionalist scholars write: “In interpreting the constitution supplementary criterion have weight such as “the unity of the constitution”. Correspondence with practice and the adequacy of functional law are encompassed by the canons of systematic interpretation since they prevent the isolated consideration of individual constitutional norms. Furthermore, in the process of interpretation, the entire text of the constitution must be borne in mind, as well as the constitutional and State issues which it encompasses.”

Constitutional law, just as law in general, is not only a system of norms, but also embodies principles as the American philosopher of law Ronald Dvorkin wrote about so well. One needs to also understand that the constitution is a “living organism” which develops among other things through political conflict.

For us it is also of importance that in systematic interpretation the principles of law play a vital role. As the Polish specialist in interpretation of law Lech Morawski stresses, “all norms of the law need to be interpreted in such a way as to be in harmony with the principles of law”.

In our situation this means that Article 90 of the Constitution should be interpreted in the context of fundamental constitutional principles, including the principle of democracy and that of the rule of law. We must also come to an understanding of the norms of the constitution in the light of such general principles of law as justice, rationality and integrity.

The political conflict between the President and the Coalition thus emerges as a clash between the constitutional principle of democracy and Article 90 of the Constitution.

However, before considering which of these norms should take precedence, the question of what is understood by the principle of democracy needs to be answered.

It should be remembered that by its nature the principle of constitutional law differs from a usual norm of constitutional law in presenting a generalized norm which reflects characteristic features, as well as the main content of constitutional law, and having the highest legal force.

The principle of democracy is the fundamental principle of constitutional law for the majority of European States.  Article 2 of the French Constitution, for example, states: “France is an indivisible, secular and democratic Republic. Its principle is the government of the people, by the people and for the people”. Article 3 binds political parties and groups to observe the principle of democracy. According to the French legal expert Littre, democracy is a form of government through which the people themselves achieve their sovereignty.

It is extremely important that, as noted by the well-known French constitutionalist Francois Luchaire, the constitutional aspects of the democratic principle are manifested in four main spheres: 1) that of national sovereignty; 2) the electoral law and citizens’ political rights; 3) the exercising of the principle of the division of power.

As regards the fourth aspect which is especially important for Ukraine, Luchaire defines this as “consisting of the right to bring down a government in those cases where the latter has begun to infringe the rights of the people, and in essence this is one of the ways of countering oppression.”

As we see, opposition to oppression is one of the organic elements of the constitutional principle of democracy.

Treating democracy as the most important constitutional principle, German constitutionalists, for example, note that “the pivotal point of any democracy is the conviction that the people are the bearers of State power. … the notion that the people are the first and final point of democratic legitimization is fundamental in the understanding of democracy”.

On the basis of such a concept of the constitutional principle of democracy, it becomes clear that in cases of conflict between different branches of power, the only arbiter can be the people themselves, this including via elections.

As regards the Ukrainian Constitution, the principle of democracy finds its most adequate reflection in Article 5 which states: “The people are the bearers of sovereignty and the only source of power in Ukraine. The people exercise power directly and through bodies of state power and bodies of local self-government. The right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials. No one shall usurp state power”.

Article 5 essentially corresponds to the tradition of European constitutionalism and also presumes that in cases of conflict between different branches of power, the decisive word should be the prerogative of specifically the people. Otherwise we are dealing with the usurpation of the rights of the people.

How does one relate the constitutional principle of democracy with Article 90 of the Constitution? In accordance with the collision rule that lex superior derogat legi inferior which is considered one of the rules of interpretation in the broad sense, where there is conflict between hierarchically higher and low norms, the first must have precedence. In the case in question, this means that the constitutional principle of democracy takes precedence over the norm in Article 90 since this principle in its essence is of higher legal force than Article 90.

We can thus logically conclude that the President by issuing his Decree dissolving parliament and calling new elections acted in full accordance with the constitutional principle of democracy and the spirit of the Ukrainian Constitution.

At the same time a question which is of more a political than a legal nature inevitably arises, this being connected with the awaited judgment of the Constitutional Court. The essence of this problem lies in what practical and social consequences this decision can have given the acute confrontation which we are now observing between the opponents and supporters of the dissolution of the Verkhovna Rada. The fact is that it is unlikely that the judgment of the Constitutional Court, regardless of its substance, will be seen as legitimate by one of the sides of the conflict, and it will probably lead to a further escalation in the conflict. In the given case, the Constitutional Court becomes the hostage of the negative image in the public consciousness of the Ukrainian justice system which as a whole is seen as hopelessly corrupt. It is also important that the judgment of the Constitutional Court will in any case have political consequences which cannot be predicted and could become a prelude to a schism in the country.

In this sense the Constitutional Court at one time acted expediently by effectively distancing itself from the question of the fate of the “political reform” [the constitutional amendments passed on 8 December 2004 which transferred some of the President’s powers to parliament, introduced proportional representation, and others – translator].

In the present worrying situation we need to bear in mind that we are first and foremost with a serious political conflict, the solution to which can be found through political rather than legal means.

One cannot bypass the concept of “political issues” famous in US constitutional law. The essence of this concept lies in the fact that the US Supreme Court refuses to examine politically sensitive issues connected with the exclusive jurisdiction of another branch of power (legislative or executive), or in connection with a shortage of adequate standards of judicial control, or due to the impossibility of achieving a judicial ruling.

There might possibly be sense in the Constitutional Court applying some form of this concept of “political issues in the present constitutional crisis.

In any case a political and legal analysis of this crisis leads us to conclude that the political and legal matrix of Ukraine, as a result of accumulated mistakes and problems, needs to be reloaded, and help in this will be provided by snap elections to the Verkhovna Rada.

Oleksandr Merezhko, Doctor of Law, Professor of the “KROK” Economics and Law University



[1]  Article 90 of the Ukrainian Constitution: 

The powers of the Verkhovna Rada of Ukraine shall be terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation.

The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada in the following cases:

the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions in compliance with Article 83 of this Constitution within one month;

no new Cabinet of Ministers of Ukraine has been formed within sixty days after the resignation of the Cabinet of Ministers of Ukraine

plenary sessions fail to commence within thirty days of a single regular session.

A decision on an early termination of the powers of the Verkhovna Rada of Ukraine shall be taken by the President of Ukraine upon consultations with the Chairman of the Verkhovna Rada of Ukraine, vice-chairmen, and leaders of deputy factions in the Verkhovna Rada of Ukraine.

The powers of the Verkhovna Rada of Ukraine elected at extraordinary elections held after the early termination of powers of the Verkhovna Rada of Ukraine of the previous convocation by the President of Ukraine shall not be terminated within one year from the date of its election.

The powers of the Verkhovna Rada of Ukraine may not be subject to an early termination at the initiative of the President of Ukraine within the last six months of the term of powers of the Verkhovna Rada of Ukraine or the President of Ukraine.

[2]  The words in the original text are pravo – the law, and zakon – a law.  The latter is used in referring to a specific piece of legislation, while pravo is the general area and the word used in the expressions “rule of law” and a “law-based society” {translator]

[3]  The person referred to is Serhiy Holovaty who on the evening after the President’s Decree was issued supported the coalition’s stand against dissolution.  This came as a great surprise to many since, as well as the above-mentioned details, Holovaty was a member of Nasha Ukraina and had been Minister of Justice under the previous government (translator)

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