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Commentary on the Constitutional Court Judgment of 30 September 2010

Vsevolod Rechytsky, KHPG Constitutional Expert
Political-legal commentary on the CCU Judgment which revoked the constitutional amendments of 8 December 2004

Political-legal Commentary to the Judgment of Ukraine’s Constitutional Court on the constitutional submission from 252 National Deputies regarding compliance with the Constitution (constitutionality) of the Law of Ukraine “On amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV (the case on observance of procedure for making amendments to the Constitution) from 30 September 2010 No. 2 – pn/2010.

The above-mentioned Judgment had only just been published on 1 October 2010 on the site of the Constitutional Court when Ukraine’s free public began commenting on its political and juridical qualities. As regards public officials and civil servants, or the “not-free” public, they must as a matter of urgency begin “bringing normative-legal acts into compliance with the Constitution of 28 June 1996 in the version which existed up till the amendments” of 8 December 2004.

This commentary is clearly on the basis not of State discipline, but of academic freedom. In order to not confuse and not repeat arguments, I will endeavour to present a number of arguments in order based on their basic points.

1.  Did the Constitutional Court in this case exceed its powers?  No, it did not, since control over the procedure for making amendments to the Main Law of Ukraine is as much a part of its work as control over the substantive content of draft constitutional norms. Furthermore, the strongest guarantee for the correctness, compliance with the demands of the Constitution of new legal norms is provided by clearly set out procedure for their entry into force. True democracy consists of indefinite results in conditions of strict compliance with previously defined procedure. This is considered axiomatic in constitutional theory and practice.

2.  Was the relevant procedure for making amendments to the Constitution violated in 2004? The question is rhetorical since all those interested in Ukraine know that it was. The Court cited two qualitatively different types of violations of a procedural nature, however in fact there were more. Firstly, the stylistically altered versions of the constitutional amendments were not passed to the Constitutional Court for its opinion. My opponents can say that the amendments not checked by the Court were editorial and therefore not of fundamental importance. Perhaps, however if parliament allows itself to substitute even one legal concept by its synonym, the content of the norms changes as a result since as we know there are no absolute synonyms. Furthermore we all know the power of syntax and grammar, as well as the fact that this is just the start …

3.  Secondly, the amendments were voted on together (“in a package”) with ordinary level legislative norms. Thirdly (which the Court omitted in its Judgment), the amendments were made effectively during a state of emergency. After all in the country at that time political and personal passions were still highly charged, the authority of the current President had been undermined, the blocking of state buildings had only just ended, and Khreshchatyk St. was still filled with the crowd of demonstrators. It is clear that such a context would be deemed unfavourable for passing amendments to the main law of any country.

4.  According to Article 157 § 2 of the Constitution, “The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”.  Some might say that a state of emergency had not been formally declared in Ukraine. That is so however everybody knows that President Kuchma, isolated in his residence outside the city, simply lacked the physical possibility to do this. The political crisis had gone too far, the preventive mechanisms had not worked, and therefore it was already too late to call a state of emergency. Ukraine was in the grip of the Orange Revolution (in type, a velvet revolution) – a truly democratic uprising which the Speaker of the Verkhovna Rada, V. Lytvyn somehow assessed as the possible prologue to civil war.

5.  We also know very well what this ban from Article 157 is aimed at, whether it is dealing with an actual state of emergency (including any revolution) or only that which is formally declared by the President and supported by the Verkhovna Rada. If the latter is correct, then the formally declaration of a state of emergency by a tyrant could disrupt the adoption of any Constitution. A hypothetical interpretation of Article 157 is thus not self-evident. 

Even the passionate critic of the 30 September 2010 Constitutional Court Judgment, Yulia Tymoshenko, in December 2004 considered the voting by Deputies from “Our Ukraine” for the constitutional amendments to be betrayal of the Revolution.  To the television cameras she explained the lack of vote from Viktor Yushchenko himself, formally confirmed by the electronic device, as due to her positive (!) influence on him.

6.  However even more unacceptable from the legal point of view was the so-called “package” vote for the constitutional amendments together with amendments to electoral law. In the 30 September 2010 Judgment, the Constitutional Court notes with restraint: “Simultaneous adoption of independent legal acts, the regulation of which is designated in Articles 91 and 155 of the Constitution with different procedure for their consideration and adoption demonstrates an infringement by the Verkhovna Rada of Article 19 § 2 of the Constitution”. In fact the package vote did not lead to an insignificant infringement of legal technique, but to a logically inadmissible reversal, a state in which the fate of norms at ordinary level (the amendments to the Law on the Presidential Elections) directly determined the fate of norms at constitutional level by which at that time in Ukraine the form of government was defined (sic!).

7.  Furthermore, from a legal point of view, a package vote is neither only nor mainly a single action, as one which is combined. Various draft laws are put together in the package which are voted on in one vote covering them all.  If we imagine for a second a situation where the first draft law from the package envisages increasing by five times the salary of National Deputies, the second – changing the constitutional form of government. Who after this would have any doubts about the success of the political reform? Acceptance of such an approach means nothing less than to consider (following Vladimir Lenin) that a noble aim justifies any means.  However a truly moral and the only justified position lies in the opposite – that you cannot achieve noble aims through destructive means or instruments.  Professor V. Lefeuvre once wrote in his well-known book “The logic of conscience” that the anti-humane slogan the end justifies the means is typically Bolshevik-Soviet. The political axiom of the West is quite the opposite which to a large extent explains their ethical attraction and force.

 8.  In his commentary on 1 October to the newspaper Kyiv Post, the Secretary of the Venice Commission, T. Market apparently stated: “the Venice Commission never considered the 2004 Constitution to be undemocratic” and that “it was surprising to learn that the Constitution had been declared invalid after six years of being in operation (and being applied by the Constitutional Court itself).” 

Yet the Constitutional Court in no way indicated that it considers, or previously considered, Law No. 2222 from 8 December 2004 to be “undemocratic”. It is simply that the political carrot was presented in dirty packaging which became a fundamental obstruction to its digestion. Furthermore, Mr Market does not bear in mind the circumstance that the Constitutional Court, unlike general jurisdiction courts in the Anglo-Saxon legal system, does not have the authority to interpret the Constitution of its own initiative. The Constitutional Court may have an extremely low opinion of a constitutional norm, yet it must continue to comply with it until such time as one of those entitled to put forward a constitutional submission places the given norm in question.

9.  On the Internet and on Ukrainian television the question is being discussed of whether there should not be, in connection with the revoking of the 2004 constitutional amendments, early elections, both Presidential and parliamentary, since the people elected those bodies with another scope of powers, rather than that envisaged by the 1996 Constitution.  One can answer this criticism as follows. Firstly the people elect specific people for the position of deputy or President, however do not stipulate their powers in that capacity. Designation of the authority of a state body or the powers of one public official - in the given case the Verkhovna Rada and President of Ukraine is the prerogative of the Constitution which is higher than a State, and even then the expression of the will or wish of the people. The people can change their Constitution, but while it is in force, they must comply with it, as much the State apparatus and the State as a whole. As P-A Holbach once said, the Constitution is a bridle for leaders and nations; it is the highest regulation for society as a whole.

10.  It is clear that to avoid conflict in the State –legal sphere, re-election of State structures (where their competence has changed) can sometimes be an optimum solution to the situation (Y. Barabash). However one should bear in mind that such re-elections can for the moment only take place with the voluntary stepping down of the President and self-dissolution of the Verkhovna Rada. The current Constitution and laws of Ukraine do not contain such imperatives as V. Lytvyn stated on 1 October 2010.

11.  As for the view expressed in the Ukrainian media that after the Constitutional Court Judgment there is no legitimate regime in Ukraine, this is clearly an exaggeration. The abolition of the 2004 constitutional amendments took place from the moment that the Constitutional Court announced its Judgment which is not retrospective. That is, all must simply remain in their places if the positions have been retained. In some state bodies the scope of powers of public officials has changed, however this does not in itself affect their legitimacy.  Through elections the people, as stated above, hand their candidates into “the lion’s den” of the Main Law which is the highest legal product of that same people. Partly for that reason in Ukraine, as in the majority of civilized countries, the imperative mandate is not recognized. Legitimation of living political power does indeed exist, however there is also the ascending legitimation of the abstract power of the Constitution.

It is simply that the link between the people’s will and the competence of the President and parliament is achieved not at the tactical level (elections), but at the strategic (adoption of the Constitution) level. Therefore in itself the election of specific people to positions does not affect the scope of their powers and vice versa. The change of scope of powers, under normal circumstances, should not impinge upon specific political fates because in the given case we are dealing with different corridors of political power. The latter do not meet.

12.  Does the abolition of the 2004 constitutional changes bring the threat, as Yulia Tymoshenko asserts, of a strengthening of totalitarian tendencies in Ukraine? There is no doubt that the opposition must be a guard of freedom and democracy in society. However the Judgement of the Constitutional Court from 30 September 2010 does not so much provoke totalitarianism, as irritates the spirits of the political opponents of the current regime. That which V. Yushchenko recently wanted to achieve has paradoxically been achieved by the political force of this opponent V. Yanukovych.

13.  However, if we leave points of personal confrontation, then we can see that all elected regimes in independent Ukraine acted de facto according to a model which was closer to the 1996 Constitution than to that which the Ukrainian “political reform” (the 2004 constitutional changes) embodied.  With its Judgment, the Constitutional Court has merely brought the formal Constitution closer to its organic state. In fact Ukrainian politics has for twenty years already lacked not so much parliamentarianism, but a decent level of awareness and political culture. It is from a position of elementary political logic that the constitutional model of 1996 is better than that of 2004.

14.   Since Ukrainian democracy remains relatively naïve and simple, the main threat for it remains populism, the weakness of political culture and the narrowness offers on the political market.  It is so important therefore to know whether Yanukovych will stop on what has been achieved.  If so, then the reinstatement of the 1996 Constitution will be only a temporary palliative. Since freedom-loving and democratic Ukraine deserves a considerably better Main Law, the constitutional process in Ukraine should continue. Here the political competition between Yanukovych and Tymoshenko could prove more dramatic than follows from their present political contrast.

15.  Some members of the legal community are already asking in view of the 30 September Judgment whether the Constitutional Court had the rights (and on what grounds) to begin proceedings on the constitutional amendments of 2004 given their own refusal in 2008 to analyze the content of the Law on Amendments to the Constitution from 8 December 2004, No. 2222-IV which brought in the amendments (“the political reform”).

Once can answer this question as follows: firstly, Constitutional (supreme) courts of other countries have and not just once passed judgments which radically altered their previous legal position. For example, the US Supreme Court with its judgment on the defence of civil rights in the twentieth century on a number of occasions revoked its own rulings on this issue from the 19th century. The latter had allowed an overtly segregationist approach in determining the legal status of certain categories of the population of the USA (Afro-Americans, Chinese, Japanese). That is, the US Supreme Court at different times variously understood (and interpreted) one and the same norms of the federal Constitution. It is simply that equality in the nineteenth century was understood much more narrowly than in the twentieth.

Secondly, the Ukrainian situation is significantly different from that set out as the problem. The Constitutional Court does not have the right to express doubt over the quality of any current material norms of the Main Law since it is positioned legally speaking, not above, but below the Constitution of Ukraine a part of which from 2004, by presumption, were the constitutional amendments. However in the 30 September Judgment, the Constitutional Court in no way expressed its opinion of the content of the reform, that is the Law No. 2222 as such. Its conclusion relates to the manner of including the amendments (removals, supplements) to the body of the Main Law. Effectively and formally-legally it found the procedure of legitimization flawed, and not the quality of the material from which the legal implant was prepared.

Of course one can emotionally understand those who assert that the Constitutional Court over six years acted in its judgments on the assumption that the constitutional amendments were in force, and it then turned out that it passed these judgments apparently insincerely. However such is the fate of the Constitutional Court – to doubt and object only when it is asked to in a legally pure form. I personally think that if any of those authorized to make constitutional submissions had asked the Constitutional Court to give an official interpretation of Section XIII of the Main Law in the sense of clarification as to whether this Section allowed voting for amendments to the Constitution in a package with an ordinary law, the political reform would have collapsed earlier.

16.  Yet another open question, judging from the media reactions, is whether the Constitutional Court had the right, in view of its powers, to reinstate the 1996 Constitution. In my opinion, that is not an entirely proper formulation of the issue. After all the Constitutional Court in its judgment did not reinstate the force of the 1996 Constitution, but declared the means for renewal of what was legally not in force. Expressed this metaphorically, the Court pointed out the failure of the assailant, and not the death and fortunate resurrection of the victim. Since the assailant (parliament) in this case lost, the Constitution remained undamaged, and – automatically – current. And it is of no importance that the dual lasted six years.


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