Razumkov Centre: Statement regarding Constitutional Court Judgment
On 6 April 2010 the Constitutional Court of Ukraine handed down a judgment over the constitutional submission of 68 National Deputies which found 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”.
Given the importance of this judgment from the point of view of adherence to the Constitution, in particular, Articles 5, 8, 19, and ensuring observance in Ukraine of the principle of the rule of law, of human rights and civil liberties, the Razumkov Centre feels it necessary to state the following.
Public concern is aroused by the circumstances of this judgment, certain aspects of its content, as well as by the possible social and political consequences.
Secondly, the procedure for the formation of a coalition of deputy factions set out in the Law “On the Verkhovna Rada Regulations”, in accordance with which the coalition “Stability and Reform” was created in the 6th term of the Verkhovna Rada, was seen by its own initiators as dubious. This is indicated by the fact of a submission to the Constitutional Court. The President of Ukraine was aware of this circumstance when he signed the Law.
Thirdly, it is known that the creation of the parliamentary coalition “Stability and Reform” and the formation of a new Cabinet of Ministers were publicly justified by high-ranking public officials, members of the Party of the Regions and other political forms which made up the coalition as being necessary to stabilize the situation in the country. This can be deemed indirect political pressure on the Constitutional Court.
Considerable concern is, fourthly, elicited by the infringement when considering the submission of consulting chamber confidentiality. The content of the judgment became known to top level government officials, members of political forces and some media outlets before it had been officially announced.
With regard to content-related aspects of the judgment, the Constitutional Court effectively equated deputy factions of political parties (blocs) in the Verkhovna Rada and individual National Deputies, both can be players in the formation of a coalition. This approach is clearly in contravention of the logic of the formation of the Verkhovna Rada by political parties (blocs) according to a proportional electoral system. It is worth noting that Ukraine’s Constitution envisages mechanisms for ensuring the connection of National Deputies who are elected according to party candidate lists with their parties (blocs). This is achieved through elements of party (imperative) mandate (although not in full degree), including those set out in Article 81 § 2.6 of the Constitution.
The consequences of the Constitutional Court judgment
The Constitutional Court has effectively legitimized the possibility of radical change in the position of National Deputies in the ratio “government – opposition”, regardless of the political forces whose lists they were voted in on. This renders meaningless the will of citizens as expressed at the elections through support of political parties (blocs) and their pre-election programmes. This devalues the principle guaranteed by Article 5 of the Constitution that power is exercised by the people via State bodies of power and the right of citizens to take part in governance of State affairs, enshrined in Article 38 of the Constitution. The judgment of the Constitutional Court could also lead to increased political corruption in Parliament.
In general the above-mentioned, first and foremost the radical change in the position of the Constitutional Court justified in a somewhat dubious manner, place in doubt the objectivity and impartiality of its judgment, the ability of the Constitutional Court in its present makeup to withstand political and other influences.
Furthermore, the judgment of the Constitutional Court fails to ensure proper public legitimacy for the parliamentary coalition and the Government which it created. It demonstrates at the same time that there are no institutions in Ukraine capable of guaranteeing adherence to the Constitution of Ukraine by the authorities themselves, and of safeguarding citizens’ rights and freedoms.
In our view this judgment reflects the present state of crisis of the judicial system in Ukraine, in the first instance, the dependence on other branches of power, and corrupt influences. Responsibility for this is borne by all leading political forces in Ukraine, both those presently in power, and those in opposition. We feel it necessary to stress that political and legal cynicism of the government and political elite, the playing with the rules instead of by the rules can give considerable impetus to the spread of legal nihilism in society. As the latest events in some post-Soviet countries demonstrate, the consequences of such nihilism in its extreme forms can be catastrophic.