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The Constitutional Amendments and their Cancellation: Ukraine’s Democracy at the Crossroads

Viktor Kolisnyk, Professor of Law, Kharkiv
A comprehensive analysis by a well-known constitutionalist, of the reasons for and consequences of the revoking by the Constitutional Court of the 2004 Constitutional Amendments, with specific attention to attempts to defer the parliamentary elections

The 2004 Constitutional reform was supposed to put Ukraine out of political and economic crisis, promote its continued democratic progress. Yet due to a number of subjective and objective factors, there was no success in enjoying the advantages of a parliamentary-presidential form of government. Moreover, the level of governability of political, economic and social processes fell significantly, resulting in the continuing escalation of negative trends in the country. It is worth noting that this was caused not only be the constitutional amendments themselves, but by incorrect implementation of the relevant constitutional processions; a lack of understanding of the essence of the amendments; a low level of understanding of the main achievements of the Constitutional reform; incomplete constitutional transformations; and mainly a lack of political will. There were also many other reasons.

The Constitutional amendments presented considerable opportunity for further political structurialization, in particular of parliament and was supposed to promote the structuralization of all of society which could have led to the formation of a mechanism for real political competition, the fight between different programmes, ideas, views, appeals to setting the strategic directions for the further development of the country and society and for ensuring development of democratic transformation. In addition, the formation of a government through a coalition of deputy factions was intended to increase the level of political responsibility of both the Cabinet of Ministers and of parliament. The Verkhovna Rada, having formed the Cabinet of Ministers, was supposed to concern itself with heightening the level of legislative provisions and work more closely with it.

However the cooperation between legislative and executive branches of power, as well as the Head of State, was seriously weakened, and in some areas even negated. This was due to a number of causes, among which we should mention the main failings of the Constitutional reform: artificial “denigrating” of the role of the Head of State in the mechanism for appointing the Prime Minister and formation of the government to one which was purely technical (in view of his election by the people this seemed at very least illogical); the “dualism” of executive power which led to some of the ministers and bodies of the Executive orienting themselves on the Prime Ministers, while others on the President; the weakening of guarantees of independence of judges of the Constitutional Court leading to an excessive politicization of the situation around the single body of constitutional jurisdiction; and others.

In our view, the main drawback of the Constitutional reform was its failure to adequately reflect the real multiparty and politically diverse situation

Both parliamentary and parliamentary-presidential systems can only function effectively where there are real and developed political parties. However Ukraine received to a large extent imitation of freedom of political activity, the lack of internal party democracy (this is evidenced by the long-standing lack of change among party leadership of many parties, the adoption of party decisions and formation of candidate lists by some leaders either by themselves or with some close associates, that is, with violations of democratic procedure, etc).

Attempts to move the main accent in responsibility for the state of affairs in the country specifically onto parliament was, from the outset, doomed. In the absence of internal party democracy in the majority of parliamentary parties and the dictate of certain party functionaries (when one or a few individuals effectively replace collective decisions), where there is only simulation of discussion, polemic and choice, and conformism, formalism and demagogy dominate, one can say without exaggeration that there are no real political parties in Ukraine. The lack of such parties renders impossible the effective functioning of a parliamentary, or even a parliamentary-presidential republic. Nor, a priori, are those politicians used to ruling their political force by non-democratic means able to carry out democratic transformations on a nationwide scale. There are thus all grounds for stating that given the reality in Ukraine and the present political and legal level of culture, any improvement of the above-mentioned constitutional model even given clear and full separation of functions, powers and spheres of jurisdiction within a parliamentary-presidential (or parliamentary) republic, has little projects for success. And this will be the same until such time as we see a system of internal party democracy based on real choice and periodic change of its leading bodies, as well as collective adoption of the most important party decisions.

It is clear that under such conditions one cannot hope to enjoy all the advantages of a parliamentary form of government which with a distorted “democratic component” of the political system has proved ineffective and helpless.

Therefore, even if the procedure established in 2004 for introducing constitutional amendments had been adhered to, and a more successful and detailed legal mechanism for interaction between State bodies of power had been devised, together with a full and clear divide of their powers, the chosen model could have hardly ensure the proper functioning of the State apparatus and made it possible for the Ukrainian political elite to fully enjoy the advantages of a parliamentary-presidential form of government.

On 1 October 2010 the Constitutional Court announced its 30 September Judgment regarding observance of procedure in making amendments to the Constitution. According to Item 1 it found “not compliant with Ukraine’s Constitution (unconstitutional) the Law of Ukraine “On amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV in connection with infringements of constitutional procedure for its review and adoption”. The Constitutional Court had sufficient legal grounds for passing such a Judgment. Violation of the fairly complex, yet democratic, procedure for making amendments to the Constitution could not and should not remain unnoticed by both institutions of civic society (including specialists), and the sole body of constitutional jurisdiction, since one cannot indeed build a truly democratic state, violating democratic principles and democratic procedures. However civic society fairly rapidly forgave those in power for so foisting the Constitutional reform, and the Constitutional Court demonstrated a certain lack of consistency, once already refusing to initiate proceedings in response to a constitutional submission from 102 National Deputies regarding the constitutionality of the Law on Constitutional reform from 2004.  This was its Judgment from 5 February 2008, No. 6/2008, yet soon, as though having come out of hibernation, it initiated proceedings on observance of procedure for making amendments to the Constitution.

According to Item 2 of the Judgment from 30 September 2010, the Law on Constitutional reform from 2004, No. 2222-IV, having been declared unconstitutional, loses force on the day that the Constitutional Court passed its Judgment. Such an approach, and specifically such logic, is determined by the requirements of Article 152 § 2 of the Constitution according to which “Laws and other legal acts, or their separate provisions, that are deemed to be unconstitutional, lose legal force from the day the Constitutional Court of Ukraine adopts the decision on their unconstitutionality”.

This provision should be understood as meaning that from this day all bodies of State power and their officers (including high-ranking ones) should act in accordance with those powers which the first version of the Constitution (before the 2004 amendments) gave them. With this it should be understood that all the above-mentioned bodies and officials are legitimate since they were formed (or elected, appointed) according to procedure specified by the version of the Constitution current at that time and in accordance with current legislation. For example, the Verkhovna Rada elected on 30 September 2007 is a legitimate body. Since the term of office of the Verkhovna Rada as set out in Article 76 of the initial (first) version of the Constitution is 4 years, then this requirement should extend to the Verkhovna Rada presently in office. References by some politicians and specialists to the experience of 1996 when, after the Constitution was passed, both parliament and the Head of the State continued to carry out their powers, seem not quite correct and unacceptable. The present situation is radically different. Firstly, the terms of office of the Verkhovna Rada and the President, envisaged by the Constitution on the day that it was adopted in 1996, totally corresponded with the periods they had been elected for in 1994. Secondly, in the Transitional Provisions the year and month for holding regular parliamentary and presidential elections were stated. At present there are no, and should be no transitional provisions, and the term of office for parliament before and after the cancellation of the constitutional amendments do not coincide.

The Cabinet of Ministers is similarly legitimate. However after the Law On amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV was declared unconstitutional and revoked, the appointment of its new makeup should be in accord with procedure set out in the 1996 Constitution. That is, if on 29 September 2010, the President did not have the right to terminate the powers of the Prime Minister, and could only initiate consideration by the Verkhovna Rada of the Cabinet of Ministers’s responsibility (according to Article 87 § 1 of the Constitution with the 2004 amendments), after the Constitutional Court’s Judgment, the Head of State can without even any consultation, at his own discretion, terminate the powers of the Prime Minister and take the decision to dismiss him. In that case, the entire Cabinet of Ministers should resign. And the President, after accepting their resignation, should instruct it to carry out its duties until a new Cabinet of Ministers is formed.

At the same time, if up till 30 September 2010, the President had the right to not only appoint a third of the judges of the Constitutional Court, but also to dismiss them, after the Judgment, the President may no longer dismiss them (Article 85 § 22.1 of the Constitution).

In view of the Judgment declaring Law no. 2222-IV from 8 December 2004 unconstitutional, several problems could arise, mainly with regard to setting the date for the next regular parliamentary elections since the Constitution in the 1996 version envisages that regular parliamentary elections must take place in the last week of March, and of the Head of State – in the last week of October. Literal implementation of these norms could lead to an extension (or a reduction) in the term of office of state bodies. If parliamentary elections are held in March 2011, then parliament’s term of office on Election Day will be only three years and four months. If they are held in March 2012, then they will have been in office for four years and four months by Election Day. And as well, experience shows that a certain amount of time is needed for counting the votes and establishing the outcome, officially publishing this, as well as for calling the first plenary session of the new Verkhovna Rada and swearing in newly-elected National Deputies. There would therefore be another month and a half or two months, making the National Deputies’ term in office around four and a half years. Furthermore, if one follows the logic of those who consider that for the parliamentary elections an exception should be made from the now current Constitution since the National Deputies were elected for 5 years, would the elections in March 2012 then be too early?

In general one should be extremely careful when making any exceptions from an overall rule in law. Removing or suspending the force of even one constitutional norm with regard to a certain category of subjects or circle of individuals (as the Constitutional Court unfortunately did in its first Judgment of 13 May 1997) is unacceptable and even dangerous since it poses a serious threat to the affirmation of democracy and democratic achievements in Ukraine. The issues around the terms of office and elections are rather complex and equivocal, after all it turns out that the parliamentarians with the carrying out of the Constitutional reform extended their term of office and in that way gave a lesson of sorts to their successors for the future. If we model a situation whereby the Deputies again pass amendments to the Constitution with infringements, extend their term in office, for example, to 25 years (or life), then if the amendments are changed because of violation of procedure, then this will still not affect the Deputies since they created a precedent which boils down to the Constitution supposedly not applying to the terms of office of those in power. There will probably be those willing to name such a precedent constitutional custom or those who will assert that the norm about a twenty-five year term of office has already become the so-called “body of the Constitution”, has come into force, was used in practice, that there is no need to review elections held according to that norm.

Maybe this entire reform was started for the sake of extending terms in office? Was that not maybe a “political bone” for parliamentarians to make them swallow the political reform (the 2004 amendments)? Yet experts even then pointed out that it was unacceptable to increase the terms of office since that meant a significant (one quarter!) reduction in the possibility of voters to control those in power, political parties and their leaders through the election procedure, and thus force them in this way to answer for their mistakes. After all political responsibility in a democratic regime is based mainly not on fine-sounding statements but on the refusal of voters to voter for certain political forces, stripping them of political trust specifically through elections.

In this case they find themselves pushed to the sideline of the political process and have the possibility to reflect and work on their mistakes. This was the fate of the socialists at the parliamentary elections in 2007 who, largely because of the “political pirouettes” of its leader did not get into parliament (The Socialists, led by Oleksandr Moroz, unexpectedly changed sides, creating a coalition with the Party of the Regions and the Communist Party – translator).

Following the introduction of the 2004 amendments, the possibilities for controlling parties and blocs not only did not increase, but were even reduced (after all you could only elect National Deputies and thus influence their activities every five years instead of every four). Yet, having rejected the constitutional amendments, the public are being asked to not only not slam parliamentarians and the initiators of dubious innovations but to pat them on the back and encourage the next ill-considered steps through a “bonus” in the form of an additional year in office. With such an approach, the faulty conclusion becomes possible that the Constitution renewed its force in its initial form, but not for all and not immediately. The oh so esteemed Parliamentarians “have done so much for society and the state”, that they should supposedly be forgiven their unsuccessful experiments and have a year of comfortable life added for their services – let them enjoy themselves.

In setting the date for the regular parliamentary elections it is worth bearing in mind the legal position of the Constitutional Court in its Judgment of 12 May 2009 No. 10/2009 (on the constitutional submission of the President regarding compliance with the Constitution (constitutionality) of Article 17 § 1 of the Law on the Presidential Elections and the Verkhovna Rada Resolution on setting regular elections for President of Ukraine. In its motivation section, the Constitutional Court stated that in setting the date for regular elections, the court was guided by the norm of the Constitution current on the day that the judgment was taken. The rule, envisaged in Article 77 § 1 of the Constitution from 28 June 1996 should be in force.

However another problem arises in this respect. Who exactly should determine the date of the parliamentary elections? The Constitution gives no answer. Parliament is empowered to set the date for presidential and for local elections, but not for its own. Why this happened is clear. In the first version of the Constitution the date of the parliamentary elections was so clear and unequivocal that it was virtually impossible to make a mistake. Therefore it was sufficient that the Central Election Commission approved the Calendar Plan and announced the beginning of the election campaign. This was enough. In the difficult situation which has emerged, it would perhaps be expedient for the President as Guarantor of the Constitution to turn to the only body of constitutional jurisdiction with a submission asking which norms should be used in setting the date of the parliamentary elections and who should do this.

It is impossible to agree with the position of some experts who propose holding to answer those who voted in 2004 for the political reform, as well as those who supported it, and even those who “pushed it through”. After all experts also (including constitutionalists) hold different, sometimes even diametrically opposite) positions regarding the constitutional amendments and the procedure for their adoption. The diversity of expert opinions expressed both with regard to the passing of the 2004 constitutional amendments and later, then after the Judgment declaring the Law on the 2004 constitutional amendments unconstitutional, demonstrates that Ukrainian society has encountered a very difficult political-legal phenomenon. The main lesson which we should take from this is to understand that the essence of democracy lies not only in the possibility of choice (choice in the broad understanding: choice of direction for future progression of society, choice of attractive ideas and strategies, choice of variants for demonstrating political activity, choice of worthy alternative candidates, etc), but also in observance of procedure stipulated in advance, generally known and democratic in its content.

At the same time the position of the Constitutional Court with regard to the political reform does not appear impeccable, and to some extent, even to some extent open to criticism. This is firstly because it has once already refused on formal grounds to initiate proceedings over a constitutional submission of 102 National Deputies regarding the constitutionality of Law No. 2222-IV on the 2004 Constitutional Amendments (Judgment from 5 February 2008 No. 6/2008). Secondly, the Constitutional Court over recent years has on many occasions considered cases regarding the constitutionality of various laws and other normative legal acts (or particular provisions of them), basing this on provisions changed in 2004, of the Constitution.  That means that the only body of constitutional jurisdiction indirectly recognized those amendments to be an organic part of the Constitution, treating them as in effect, and expressing no doubts as to their being in keeping with the initial constitutional text. Thirdly, the only body of constitutional jurisdiction has already provided an official judgment regarding certain provisions of specifically those norms changed in 2004 - that is, again treating them as norms that were properly introduced.  Fourthly, the hasty “removal” from the Constitutional Court of four judges on some trumped up grounds (about which for some reason it became known only on the eve of the consideration of the procedure for passing the constitutional amendments) and the urgent introduction of the “new contingent” just before the passing of such a radical and fateful judgment by the only body of constitutional jurisdiction makes many experts feel at very least surprise and doubts as to the sincerity both of the initiators of the constitutional submission (those 252 National Deputies), and those who initially promised to uphold the 2004 constitutional amendments as the main achievement of Ukrainian democracy by all juridical and political means, and then in every way supported their abolition. Moreover, among those parliamentarians who voted for the political reform in 2004, there were those who signed the constitutional submission. As we see, such a “seeing of the light” took place for some reason after a change in the regime and political situation. Was the carrying out of the 2004 constitutional reform not a political set up against those former political opponents? Did today’s political elite (chiefly those now in power) not in that way endeavour to weaken the position and possibilities of their political rivals?  First by really destroying a certain (although by no means optimum, nonetheless minimally adequate) level of governability of state political, economic and spiritual – cultural processes (placing Ukraine at the same time virtually on the brink of “political bankruptcy”) in order to then return to power with oh so messianic a mission of saving the Country and receiving the according political dividends?

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