Constitutional Dead End
“Where the rule of law is concerned it is not enough to help states to adopt democratic constitutions. There is also a need to help them to ensure that these are implemented”. Not my words, although I wholeheartedly agree. They can be found on the site of the European Commission for Democracy through Law (the Venice Commission).
Must we assume different interpretation of the word “implemented” to explain the silence of Euro-Atlantic diplomatic representations, EU, PACE and European Parliament representatives to the events of the last weeks in Ukraine?
These events began with amendments added to the Verkhovna Rada Regulations and passed within a week of their first reading on 4 March. The changes, making it possible to form a coalition not only from factions, but from individual deputies, were condemned from the outset by constitutional law specialists like Ihor Koliushko who pointed to the clear clash with Article 83 of the Constitution and stated: “The majority of factions have to take the decision to form a coalition. The Constitution envisages no other means of creating a coalition”. (http://khpg.org.ua/en/index.php?id=1267783592 )
It is important to note that there are serious and constitutionally backed objections, and yet the amendments to the Regulations were passed by a small parliamentary majority on 9 March and signed into law by the President the very next day. This step by the President would appear to have been after a meeting with ambassadors of EU and G8 countries at which only the UK Ambassador expressed any objection to the signing by the Guarantor of Ukraine’s Constitution of a law which breaches that Constitution.
This, we would stress, was no small matter, neither in its implications for the rule of law nor in its practical consequences. A new government was formed immediately, made up in the main of the Party of the Regions members, and members of this same party have been appointed to many vital posts in government, the judiciary and the media. Serious human rights concerns have already been raised, as well as widespread protest over educational changes likely to bring back corrupt practice and carried out by a person whose negative remarks about Western Ukrainians, and Ukrainian history, are extraordinarily inappropriate for a person holding such office. Since political experts have openly spoken of a de facto change in Ukraine’s political system – from parliamentary-presidential to presidential rule, and given the previous scrutiny by European structures of Ukraine’s affairs, these including the European Parliament’s resolution in January, the silence now is baffling.
From media reports, since there have been no responses from the ambassadors to our letters, it seems that the only proviso was that the Constitutional Court should be asked for its opinion. It is near inconceivable that the ambassadors were unaware that the same judges of the Constitutional Court had handed down a judgment in September 2008 on this same issue, stating unequivocally that only factions form a coalition. One must therefore agree with Andreas Umland when he writes: “Mr Yanukovych’s assurance to the Ukrainian public and the Western ambassadors that he would follow the court’s ruling always looked empty - the relevant 2008 ruling was already in place, what he was asking in fact is for the judges to overturn their previous position.”
This is precisely what the Constitutional Court did last week seriously undermining any confidence from the public in this highest judicial body in the country. It would be most unethical, but also redundant, to seek proof of bribery to explain the new judgment. As openly discussed in the media, the judges are under enormous pressure from those under whose quotas they are appointed. The highly respected Razumkov Centre describes in their statement mechanisms of pressure from Ukrainian politicians. These included the flagrant infringement of consulting chamber confidentiality, with the judgment effectively leaked to the media and announced by the Deputy Prime Minister before it had been formally made public. It is not inconceivable that this was not primarily aimed at pressure, but at testing the water. After all, the clear implication from the western ambassadors, Daniel Russell, Deputy Aide on Europe and Eurasia to the US Secretary of State and the European Parliament delegation headed by Romanian MEP Adrian Severin during their 26 March meeting with the President was that they simply required the gloss of a Constitutional Court stamp of approval.
Forget the substance?
It would be difficult to forget the astounding argumentation presented in the Court’s judgment, not to speak of the entirely clear message from the press conference given by Head of the Court, Andriy Stryzhak.
The Constitutional Court’s judgment in September 2008 which stated that only factions, not individuals, may form a coalition, also found the Verkhovna Rada Regulations unconstitutional since they had been passed by Cabinet of Ministers resolution, not as a law. The Constitution and the 2008 judgment state that “the coalition of deputy factions is made up of deputy factions which, on the basis of the election results and on agreed political positions, have formed a coalition of deputy factions.”
The argument now is that the Court judgment from September 2008 was correct then because the Regulations had not been passed. Now that there are regulations, and even though there is a clear discrepancy between the Regulations and the Constitution, the Regulations, so to speak, win out.
There are two problems here. One is the clear absurdity of any Constitutional Court Judgment finding that a law passed by a simple majority of the Verkhovna Rada takes precedence over the Constitution of the land. The second is that the Regulations do not only conflict with the Constitution, they were passed in knowing contravention of the Constitutional Court’s clear and entirely unambiguous statement from 2008.
The comments from the Head of the Constitutional Court, Mr Stryzhak during the press conference on 8 April received wide coverage in the media with all reports only differing in degree of detail. There have also been no complaints that his words were distorted.
Mr Stryzhak told journalists that the decision of the Constitutional Court to allow individual National Deputies to join the parliamentary coalition had been taken on the basis of the legal situation as it had emerged. He stated that the previous judgment from September 2008 remained in force, however in view of the passing of the law on the Regulations, the legal situation had changed.
He did not see fit to explain how the legal situation could have changed in a constitutional manner if the Law on the Regulations had been passed and signed into law by the President in breach not only of the Constitution, but of the still valid judgment from September 2008.
Mr Stryzhak also expressed the hope that the judgment would bring benefit to society since the Constitutional Court had taken its decision specifically on the basis of such moral-social and legal positions.
“The Constitutional Court of Ukraine did not examine this case as a dispute, as a constitutional-legal conflict, but was guided by the real processes of life which cannot always be read in books or in laws”.
The last two paragraphs, quoted widely, indicate a truly staggering rift between the Head of the Constitutional Court’s view of his fellow judges’ role and the rule of law as understood in any law-based society.
One wonders whether this position, presented most openly to the Ukrainian public, is one that those ambassadors, Daniel Russell and the European Parliament Delegation led by A. Severin would wish to uphold. Surely any judge, and most certainly a member of the Constitutional Court, is there to ensure that the law is upheld, not adapted to comply with realpolitik considerations?
Mr Stryzak also asserted that “a deputy is not a serf. He after all expresses the will not of a political party. Not of a political force. But the will of the people”.
One could fully endorse this view were it not for one major sticking point. Under the present electoral system, established by the constitutional amendments of December 2004, voters only vote for factions, not for individuals. Hence the logic of it being factions whose members in total make up a majority (226 National Deputies), who may form a coalition government. By allowing a coalition to be formed, not on the basis of the electoral spread of votes between factions, but by individuals who have, for whatever reason, abandoned the political force which they were voted into parliament as members of makes a travesty of the electoral will of the people.
In a country which only recently gained independence and began freeing itself of the Soviet legacy, it would be well to broaden the scope of the above-mentioned words from the Venice Commission. It is vital also to ensure that democratic mechanisms are implemented and do not turn into mere words.
The words at present, one might add, are entirely cynical. Those in the governing coalition make no real effort to conceal the likely way they will increase their numbers. Unlike in 2007-2008, they are careful not to speak too openly of gaining a constitutional majority (300 votes) through enticing deputies from the opposition, however this cannot be excluded. Individual turncoats also make no pretence of ideological differences, and the press is absolutely open in assuming that money or other benefits are involved. With important areas of governance and the media now effectively under the ruling coalition’s control, the number of people prepared to openly protest over infringements and corruption will dwindle, much as it did in neighbouring Russia.
While the media still reports dissent and openly discusses the likely levers of influence on the Constitutional Court and plans of those in power, it is as brutally cynical about the motives of western governments and European institutions.
Surely the main lesson we are all obliged to learn from the tragic legacy of the past century is that neither the individual’s rights and dignity nor those of entire countries may be treated as commodities, however compelling may seem geopolitical, economic or other arguments. For those wishing to see Ukraine’s development as a law-based democracy, the lessons of the last month, including the message received from western partners, can be called nothing less than disastrous. Clearly Ukraine must take responsibility for its own future however encouragement to provide pitifully unconvincing gloss rather than substance can only jeopardize, not promote Ukraine’s democratic progress.