Thomas Markert: CCU Judgment raises issue of legitimacy of government

The Constitutional Court Judgment made public on 1 October which cancelled the constitutional amendments of 2004, reinstating the 1996 Constitution, has aroused considerable discussion, both within Ukraine and abroad.  Some speak of a coup d-Etat, others of a reinstatement of stability and governability. The government is actively trying to reduce the adverse effects of the Judgment among western partners. It has not, however, provided the Venice Commission with explanation. The information agency UNIAN has spoken with the Secretary of the Venice Commission, Thomas Markert.

How would you assess the Constitutional Court Judgment? Many Ukrainian experts say that the Court could in principle find the 2004 amendments unconstitutional, but could not reinstate the 1996 Constitution. Do you agree with this view?

T.M.  I agree that this judgment is rather unusually since virtually 6 years have passed since the amendments were adopted and it is very unusual for amendments to be revoked after such a long period. This creates many problems which we will come to. I am less certain that the problem is in the reinstatement of the 1996 Constitution. There are also many other consequences of revoking the amendments to the original text and you cannot avoid this. Therefore this criticism is perhaps not the most important.

What then is most important?

T.M.  I should note that we have not yet analyzed this judgment, it has not, as far as I’m aware, been officially translated into English, however this situation is of course worrying since it turns out that the government in Ukraine worked for several years on the basis of an unconstitutional Constitution. And that creates a problem of legitimacy of actions and legitimacy in general. For example, at the previous elections voters voted for candidates on the basis of the new Constitution, both during parliamentary and Presidential elections.

Does that affect the local elections which are to take place shortly?

T.M.   Perhaps, there is no direct link here with the local elections because the constitutional amendments do not directly affect them.

You said that you planned to discuss the amendments to the Constitution

T.M.   Yes, for example, next week the regular session is due in Venice and our Commission will first and foremost be informed about this Judgment. Then there will be the opportunity to discuss it. I am not prepared right now to say what the continuation of those discussions will be. That may also depend on the information from the Ukrainian government and how much it wishes to work together with the Venice Commission in implementing this Judgment.

The President of the Parliamentary Assembly of the Council of Europe Mevlüt Çavusoglu has said that the Assembly is awaiting explanation from the Ukrainian government. Will you for your part be asking for any clarification?

T.M.   I think that it would of course be desirable to have such additional official information including a translation of the judgment, as well as perhaps some information about their plans for the future.

What specific steps should the Ukrainian government take to try to, let’s say, ensure some legitimacy for the adopted Judgment in the future?

T.M.   I think it would be premature before the Commission’s meeting to provide a comprehensive answer to that question. However what should certainly be done, and this follows directly from the Judgment adopted, is that certain laws must be harmonized with the text of the 1996 Constitution which has again come into force.

Opposition leaders in Ukraine say that following the Constitutional Court Judgment, the President and parliament should be re-elected. This is to some extent in line with what you said about the issue of their legitimacy. Do you agree that this would be the best solution?

T.M.   I think this is a very difficult question since we have an extremely unusual situation. We really don’t have European experience of this, and therefore I would not wish to comment until our next session.

Is this a first in European history?

T.M.   I’m at least not aware of such situations

You are familiar with both versions of the Ukrainian Constitution. Which in your opinion needs the least changes?

T.M.   It’s extremely difficult to give a quantitative answer. However I think that the 1996 Constitution was more consistent and coordinated. It was, moreover, not at all bad yet it led to excessive concentration of power in the hands of the President. On the other hand, the 2004 Constitution had certain contradictory points in the text, not to mention the traditionally difficult point regarding the powers of the Prosecutor. I therefore think that an ideal solution would have been to adopt a third version.

The President has already stated his intention to begin constitutional reform. Will you work with Kyiv?

T.M.   If they invite us, then we are, of course, willing to work together.

The interviewer was Serhiy Voropayev