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Specialists’ views on the Constitutional Court Judgment on coalitions

13.04.2010    source:

With its judgment on the legitimacy of the formation of the coalition, the Constitutional Court has damaged its own reputation however it would appear that even Europeans will not criticize the team of Victor Yanukovych for this. Yet although it is all “for the sake of political stability in Ukraine”, even in Kuchma’s days the Constitutional Court did not allow itself such legal nihilism.

This was the topic addressed in the Glavkom Press Centre by Oleksiy Haran, Academic Director of the NaUKMA School of Political Analysis, Volodymyr Fesenko, Head of the Centre for Applied Political Research, and Viktor Musiyaka, Professor of Law.

Oleksiy Haran, Academic Director of the NaUKMA School of Political Analysis

We have seen that the Party of the Regions simply rejected the rules of play and the Constitutional Court blessed this

Unfortunately this Judgment has demonstrated that there is at present no Constitutional Court as such, it does not fulfil the function of arbiter in legal clashes. This is frustrating since it was not always like this. Recall the 2000 Referendum when the Constitutional Court [CCU] took a fairly principled stand.  Of 6 questions proposed by Kuchma, the right of the President to dissolve parliament and the confirmation of the Constitution by referendum were found unconstitutional by the CCU and removed. Later the CCU said that the decision on a referendum needed to be implemented through parliament, in this way effectively retaining the balance of power within the political system. While Yeltsin simply broke up the Constitutional Court in Russia, here even when Kuchma was descending into authoritarianism, this Court functioned.

            … We have seen that the Party of the Regions simply rejected the rules of play and the Constitutional Court blessed this. I can see now that we are beginning to drift towards the Russian model, that’s evident both by the cases, as well as by television films. When I watch Yanukovych give Azarov instructions, it reminds me of something.

Yet any action generates counter-action. The opposition is in a state of disarray yet such actions by those in power will inevitably generate some kind of trends towards unity and consolidation.

            Furthermore, among our oligarchs none will want to become the Ukrainian Khodorkovsky. They have an interest in maintaining some kind of balance of power, and this power will not be concentrated in the hands of one political force because that is a direct threat to them.

Volodymyr Fesenko, Head of the Centre for Applied Political Research

            I wouldn’t be surprised if later the desire arises to revoke the constitutional changes of 2004

There was no sensation. The fact that the Constitutional Court would not object to the formation of a coalition with the participation of individual deputies was expected. I was surprised by the actual formulation passed by the Court. I expected more subtlety and elegance from the CCU, that it would be more neutral, that the judgment would be more flexible, and it proved all too “steamroller-like”.

… I was also surprised that only one judge had a separate opinion, although on the eve there had been information suggesting that seven judges didn’t support the judgment and that 11 were ready to vote for it. That already indicates that the new regime found a key to each member of the CCU. That’s an indicator of the efficient work of the new regime and the level of loyalty of the Constitutional Court to the new President and the regime as a whole. I wouldn’t be surprised if later the desire arises to revoke the constitutional changes of 2004.  That can already be done without any problem. All the more so given that there are legal grounds for such a decision, as opposed to the one passed yesterday.

Viktor Musiyaka, Professor of Law

It would have been better for the President if the CCU had found the Law on the Regulations unconstitutional

I was totally disillusioned from reading the CCU Judgment. Some Constitutional Court Judgments have really been well-founded and professional, yet this one made me remember the texts which I wrote as a schoolboy, where you choose the title from the content of the text. In the given instance it looks very likely that they wrote the title, and then found all the grounds for it. This does no credit to bodies of constitutional jurisdiction, and could do them serious damage. … We again find ourselves before the fact that the Constitutional Court has effectively confirmed the legitimacy of the coalition.

            With regard to the legal consequences, it would have been better for the President, and for us all, if the CCU had found the Law on the Regulations unconstitutional. If the formation of the coalition had been found unconstitutional, the government would have still continued to work. In that case the President would have had more room for manoeuvre, after all he has the right, not the duty to dissolve parliament.  They could have let it all work.

When such a judgment is handed down, one has the impression that everything is continuing, just as it was. I get asked maybe the CCU isn’t needed. It’s needed. However we need to resolve the issue of its formation and the selection of professionals. The whole process of selection of judges should be independent of political preferences. Furthermore, we need to introduce extremely strict liability for attempts to influence judgments of the CCU. … Europeans also had doubts regarding the legitimacy of the formation of the coalition in Ukraine. Will our new regime be viewed normally after this not entirely legally pure CCU judgment?

            Oleksiy Haran  

            Before signing the Law on the Regulations, Yanukovych gathered together the ambassadors from the G7 and explained the situation. They accepted what the President said, saying, fine, you send it to the Constitutional Court and we will await the judgment. However they’re not stupid and understand what is happening in Ukraine, see the violations of the law and tightening of screws. At the same time they’re realists and will make their calculations because they have to work with this force. Yanukovych is soon going to the USA. I am counting on the US, despite the re-engagement in their relations with Russia, to nonetheless raise the issue as a whole about ensuring that democracy is not completely folded in Ukraine. It is important that the United States and the EU pay attention to this process.

Volodymyr Fesenko

            I would not at present expect any strong reaction from the European community, especially from official figures. In March and at the beginning of April there were signals from various Europeans that made it clear that they are more interested in political stability in Ukraine. There was recently a visit from a fairly well-known figure, Adrian Severin (Member of the European Parliament) who said that it would be good if the Constitutional Court recognized such a means of forming a coalition. That is not exactly correct advice to our CCU from an official of another state, but it does confirm a certain mood among many politicians in Europe …

Slightly abridged from the original at:

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