Centre for Political and Legal Reform: On the CCU Judgment of 8 April 2010
The Centre for Political and Legal Reform has issued the following statement regarding the Constitutional Court Judgment on the possibility of individual National Deputies taking part in the formation of a coalition of deputy factions in the Verkhovna Rada
On 8 April 2008 the Constitutional Court formally announced Judgment No. 11 from 6 April 2010 on a constitutional submission from 68 National Deputies seeking official interpretation of the provisions of Article 83 § 6 of the Constitution and Article 59 § 4 of the Regulations of the Verkhovna Rada. This concerned the issue of whether National Deputies can take direct part in the formation of a coalition of deputy factions in the Verkhovna Rada [hereafter the Judgment].
In its Judgment, the Constitutional Court stated that the provisions of Article 83 § 6 of the Constitution and Article 59 § 4 of the Regulations in systematic connection with a number of other provisions of these acts should be understood to mean that “individual National Deputies of Ukraine, including those who are not in the deputy factions which initiated the formation of a coalition of deputy factions in the Verkhovna Rada, have the right to take part in the formation of a coalition of deputy factions in the Verkhovna Rada”.
With all due respect for a Judgment of the Constitutional Court, we must with regret acknowledge that its justification and consistency defy our comprehension. The reason may be our insufficient professional level since otherwise we would be forced to place in doubt the professionalism and / or independence of judges of the Constitutional Court of Ukraine.
In its Judgment from 17 September 2008 No. 16/2008 in the case of a coalition of deputy factions in the Verkhovna Rada, the Constitutional Court found that “the collocation “coalition of deputy factions in the Verkhovna Rada” … should be understood as an association formed on the basis established by the Constitution of Ukraine and the Verkhovna Rada Regulations of several deputy factions, the number of National Deputies of which constitutes a majority of the constitutional makeup of the Verkhovna Rada”. In the justification part of this Judgment, it is moreover clearly stated that “only those National Deputies who are in the deputy factions which formed the coalition can be in the coalition of deputy factions”, as well as that “the Constitution of Ukraine has stipulated that those forming a coalition of deputy factions are deputy factions”.
The Judgment from 17 September 2008 is in keeping and consistently develops the legal position set out in other Constitutional Court Judgment from 25 June 2008 in the case regarding a National Deputy being in a deputy faction. It is stated there that “according to the Ukrainian Constitution the factional structure of the Verkhovna Rada and the formation of a coalition of deputy factions are the conditions for their authority… The affiliation of a National Deputy to a faction is enshrined by the Constitution as his constitutional duty, and not as a right… The Ukrainian Constitution links the activity of electoral mandate of a National Deputy with his membership and affiliation to a deputy faction of a political party (electoral bloc of political parties) whose candidate list he was elected on.
Since the time the 2008 Judgments were passed by the Constitutional Court political changes have taken place, yet there have been no amendments to any constitutional norm. It is, in our opinion, entirely unclear how constitutional norms on the formation of a coalition of deputy factions which have undergone no change could take on a different, virtually opposite content in the passing by an unchanged makeup of Constitutional Court judges of the Judgment analyzed here.
The reference by the Constitutional Court to the adoption of the Law “On the Regulations of the Verkhovna Rada of Ukraine” seem unconvincing since according to Article 8 of the Constitution, “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 above forces one to conclude that the Constitutional Court’s legal position is not primarily dependent on the provisions of the Constitution, but rather on the political situation in the country. We must express our respect and support for the positions presented with clear and consistent argumentation in separate opinions which uphold the rule of the Constitution by Constitutional Court judges P. Stetsyuk and V. Shishkin.
There is also a question mark over the interpretation in the Judgment of the nature of the mandate of a National Deputy. The Constitutional Court, for example, points to the “nation-wide character of the representation of National Deputies in the Verkhovna Rada and their having the mandate to freely exercise this”. Yet Article 81 of the Constitution enshrines the right of political parties (electoral blocs of political parties) to suspend the powers of a National Deputy should he or she no longer belong to the faction of this political party (electoral bloc of political parties) or leave it. This was viewed by the European community, in particular the Venice Commission, as strengthening “imperative mandate”. It is therefore highly incomprehensible how the above-mentioned provision of the Constitution can be combined with free exercising of representation of the people which is, effectively, a characteristic of free mandate of a member of parliament. They possibly mean that the free nature of the mandate of a National Deputy lies in being “free after being stripped of his or her mandate at the decision of the highest body of the party”.
In terms of the size of the question mark which arises after an analysis of the Judgment of the Constitutional Court from 6 April, of all Constitutional Court Judgments passed in the years of its existence, it can compete only with the Judgment from 25 December 2003 No. 22 regarding terms of office as President of Ukraine (the so-called “third term for L. Kuchma Judgment”).