Constitutional lawmaking and constitutional process in Ukraine: 2009-2010
As for more concrete negative issues, it was a common feeling in official and unofficial discourses, that the Constitution of Ukraine (upon amending on December 8, 2004) introduced and went on maintaining actual dual executive power; authorized subjects with different system of values to carry out domestic and foreign policy; provides no guarantees of local self-government and effective representation of regions of Ukraine; tolerated weak connections between electorate and deputies of all levels; provided no proper guarantees of constitutional rights and freedoms; contained no discretionary space for realization of political program of the countrys leader; practiced overt juridical maximalism at the level of norms-principles, equitable rights, freedoms and duties of man and citizen and so on.
Both society and political elites tried to overcome these confusions and work out new approaches to constitutional regulation and drafted a number of official and unofficial amendments to the Basic Law of Ukraine; among the authors were the All-Ukrainian Association Svoboda (April 2008), President of Ukraine V. Yushchenko (April 2009), "Bloc of Yuliya Tymoshenko" (June 2009), and Kharkiv Human Rights Group (May 2009) to name just a few.
The reformative efforts of higher constitutional level included the activity of the Constitutional Court of Ukraine apparent, first of all, in its Decision from April 8, 2010 in relation to possibility of some people’s deputies of Ukraine to directly participate in forming a coalition of deputy factions in the Verkhovna Rada of Ukraine, and also in the Decision in the case of constitutional appeal of 252 people’s deputies of Ukraine concerning the compliance with the Constitution of Ukraine of the Law of Ukraine "About amendments to the Constitution of Ukraine" from December 8, 2004 (the case of conformity with the procedure of making amendments to the Constitution of Ukraine) from September 30, 2010. Therefore, we will consider the most essential attempts one by one.
The Bill on amendments to Constitution of Ukraine by President of Ukraine V. Yushchenko
In March-April 2009 President of Ukraine V. Yushchenko came forward with draft amendments to Constitution of Ukraine. From the start the bill riveted attention by the new content of constitutional Preamble. If at the time the Constitution used the term "Ukrainian people", the presidential project distinguished between terms "Ukrainian nation" and "Ukrainian people". If President V. Yushchenko really aimed to attain "consent and conciliarism2 of Ukraine", then he began off the track, especially as the article 14 of Bill went on maintaining the Ukrainian state was responsible "for promotion and consolidation and development of Ukrainian nation". It looks only logical to ask: why not consolidation of Ukrainian people as a whole? In fact, ethnically, culturally and linguistically people could become more consolidated and united in time. On the other hand, if the Bill distinguished between terms "Ukrainian nation" and "Ukrainian people", would Ukrainian Poles, Armenians, and Hungarians vote for presidential initiative in the future?
There was a doubtful norm stipulating that Ukraine should keep the definition the social state (article 1). Paper wouldn’t blush, but in 2009 Ukraine still remained a state-exploiter. The official statistics shows the miserly manpower costs in production price in Ukrainian industry. The same with the salary bracket of employees of government-financed organizations. For example, in 2009 the salary of a parliamentarian or minister in Ukraine equaled ten salaries of a surgeon of a higher category or approximately five-to-seven salaries of a university professor, while at the same time the expenditures covering the completion of elite hospital in Feofaniya (Kyiv) exceeded the size of budgetary funds intended for all domestic rural medicine3. No wonder, the next year Ukraine was the second lowest among 40 European states by the standard of well-being4.
Meanwhile the article 4 of presidential project repeated article 3 of the Basic Law: “The human being, his or her life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value.” As ethical maxim and moral imperative it was clear. The problem consisted in an attempt to develop this stipulation into the direct action norm and higher juridical force at the same time. For example, how to order a soldier to give battle, if everything he defends is of lesser value than the fact of his physical existence? Or is the Cabinet of Ministers of Ukraine ready to sell out its limousines and cover the costs of marrow transplantation abroad for a pupil from an orphanage?
It is known, that G. W. F. Hegel, O. Kozhev and F. Fukuyama––each in his time––wrote about underdeveloped political and moral nature of nations, which are ready to waive their freedom for primitive physical survival. For instance, O. Kozhev in his Essay on Phenomenology of Law maintained that "the human or historical reality emerges due to mediation of active denial of natural, animal reality––in ability to risk one’s life in the strife for recognition.”5
The article 17 of the president’s bill stipulated that "no ideology can be acknowledged by the state as obligatory.” The ideologies have not expired in the world; but is it an excuse for constitutional maximalism? By the Lisbon Agreement and Charter of Fundamental Rights of the Union the European states undertook to guarantee free migration of people, commodities, services and capital as an imperative of freedom, democracy, human rights and free market, or didn’t they? The supremacy of law and limited government is also ideology, or isn’t it? Modern Poland, having adopted the Constitution in 1997, performed in more economical and simpler way. The Basic Law of Rzeczpospolita banned ideology of nationalism, fascism and communism, but not ideology at large. In fact, the state is a traditional guarantor of stability and order; without ideology it loses its reference-points. The civil society with hardly a credo of general faith is another kettle of fish.
More ammunition for criticism one finds in the article 22 of the Bill on the state symbols of Ukraine. The draft Constitution specified that the State Anthem of Ukraine is the national anthem "Ukraine Has Not Yet Perished" set to the music of M. Verbytsky, with words by Pavlo Chubynsky that are confirmed by the law.” But P. Chubynsky not so much authorized the words, as their arrangement in original sentences and poetic rhymes. Since the Ukrainian parliamentarians changed cases in the key stanza, P. Chubynsky’s authorship is out of the question.
As to the inclusion of the "Spiritual Hymn of Ukraine" into the presidential project (article 22), it was an attempt to transfer the instruments of law to the area of human heart. Such sacralization of constitution was hardly justified under given circumstances. The norms of basic law should be rational, pragmatic and stay within the bounds of legal regulation. All the more the article 40 of the Bill stipulated the right of everybody "to the freedom of thought, conscience and religion." Thence the question: how can the inalienable freedom of conscience and thought under conditions of constitutionally fixed spiritual hymn? The rights and fundamental freedoms constitute the space of individual autonomy protected against state and other imperiously-authoritarian interference. Rights and freedoms belong to a sphere of personal responsibility. In the area of individual spirit the constitution and democracy are not so much unnecessary, as relatively powerless.
The section ІІ of V. Yushchenko’s bill was dedicated to the rights, freedoms and duties of man and citizen. Its text read almost like that of the current Constitution of Ukraine. In particular, all socio-economic rights in the draft were left in current redaction. Most of them proved useless in legal procedure. That is all rights and freedoms were expressed in the draft as inviolable legal imperatives, although one third of them were not backed by legal guarantees of realization. Once again the obvious impracticability of socio-economic rights compromised the rest of constitutional text. Beginning from 1936 these "rights-utopias" accustomed Ukrainian citizens to the idea that the Constitution is not a law, but "glad rags". Do many people in Ukraine have "sufficient standard of life for them and their families" (article 53), guaranteed "right to work" (article 48), "conditions for effective and accessible for all <…> medical service" (article 54) and so on?
at the same time the division ІІ of the bill contained no hints at academic freedom; free movement of persons, commodities, services and capital; separate right for citizens and other persons to access official and other publicly meaningful information; special rights for children and persons of advanced age. Such approach was erroneous for the country announcing its wish to join European community. Planning integration into the EU, it would be good to adjust the constitutional draft to the Charter of Fundamental Rights of the EU as appendix to the Lisbon agreement––the de facto basic law of united Europe––signed in December 2007.
On the other hand, the regulation of human rights and freedoms in the presidential bill was better than that in the current Basic Law. The presidential project looked less maximalist and, at the same time, more pragmatic, closer to common sense. For example, the bill meant to prohibit not "any child abuse" (operative rule), but prohibition of "child abuse"; not only "right to life" (operative rule) but also prohibition of death penalty and execution (article 28). Another positive point was reduction of administrative detention to 24 hours (operative rule––72 hours).
However, on the whole the presidential code of human rights and freedoms remained a collection of rights not of potential citizens of the European Union, but a modified typical legal status of a person in a post-totalitarian country. The bill failed to pay attention to the educational, scientific, intellectual, virtually-symbolic aspects of Ukrainian community. Only a small space was allocated to define the rights of foreigners and apatrides. The bill failed to mention the international obligation of Ukraine to refrain from collective deportation of foreigners (article 4 of the Protocols No. 4 to Convention about protection of human rights and fundamental freedoms in 1950 with amendments made by Protocol No. 11). The guarantees of rights of foreigners by article 1 of the Protocol No. 7 to Convention (1950), which were omitted from the presidential draft at the constitutional level, were important for Ukraine as well.
The presidential project did not acknowledge unisexual marriages, ignored the citizens’ right to buy traumatic weapon and possibility of political strikes. Like the statutory Constitution, the bill acknowledged the responsibility for giving and execution of overtly criminal instructions and orders, although giving and execution of simply criminal orders also might have been contrary to law. Unlike the Charter of Fundamental Rights of the European Union, the presidential bill made no provisions for protection of human rights and freedoms in the places of imprisonment and so on.
In addition, this project admitted the possibility of limitation of constitutional rights and freedoms as such, while the 1950 European convention on protection of human rights and fundamental freedoms permitted only temporary limitations. It is an important legal nuance, as the Ukrainian doctrine of equitable rights is built on principles of political philosophy of J. Locke, which considers the rights and freedoms natural and inalienable.
Another flaw of the presidential project in the area of ensuring of human rights and freedoms consisted in fuzzy observance of requirements of three-component test according to which the European Convention on protection of human rights and fundamental freedoms (1950) allows to limit rights and freedoms only if this limitation: a) is necessary in democratic society; b) is stipulated by law; c) exactly meets its purpose. strange as it may seem but V. Yushchenko’s bill did not raise up to the constitutional level the norm of the second part of article 7 of the 1950 Convention about protection of human rights and fundamental freedoms admitting the possibility of trial and punishment of person for any action or inactivity, which at the time of their commitment presented a crime in accordance with the general principles of law recognized by the civilized nations. If this norm had become constitutional, it would allow Ukraine, at least formally, to raise the issue about bringing to book of those guilty of Holodomor in 1933.
The section ІІІ of the draft was dedicated to expression of political will met no special criticism. However, there is a problem with the section dedicated to the legislative branch of power. The introduction of two-chamber National Assembly became a novel. The bill stipulated certain limitations of deputy’s inviolability and possibility of compatibility of deputy’s mandate and ministerial portfolio. Maybe this two-chamber idea was prompted to the President of Ukraine by complexity of post-communist governance. Once again the presidential rule in Ukraine ran into the phenomenon of surrounding political vacuum. The moment the domestic political situation complicated, the head of state had nobody to rely on. On the other hand, only senators could effectively oppose the extremes of presidential authoritarianism.
Gradually it became clear that the existent format of Verkhovna Rada was not sufficient for the progress of Ukraine. The Ukrainian parliament was and is the richest in Europe by the wealth of its members (A. Kwaśniewski); however, politically it always lacked ability to take the responsibility. The noisy scuffles of coalition and opposition went on and on without any good for the country. However, the tactical drawback of V. Yushchenko’s project consisted in the fact that the senators had to be elected directly by the population of Ukraine still prone to populism. Obviously, it would be better to elect senators by regional and town radas. They would have been legitimized, if they had been elected from local deputies.
The division of state power into separate branches fixed in the article 7 of the project did not prevent ministers from remaining deputies. Moreover, not being the head of executive power, the President reserved the possibility to bloc government regulations. Actually any act of the Cabinet of Ministers could be canceled under pretence of the threat to national security. The president’s idea to pass the budget act by both "democratic" Chamber of deputies and "aristocratic" Senate was feeble as well, because the budget decisions might be better made by the lower chamber. There were no objections against the rest of the points of the section. One could only not the absence of reconciliation procedures if the chambers of the National Assembly were not in accord. The project said nothing about the possibility of setting up of parliamentary reconciliatory commissions. On the whole, the presidential model of National Assembly of Ukraine looked rather conflicting, if not antagonistic. There was also lack of logic in determination of the legal status of the Senate. If the upper chamber had to be elected by citizens, and not appointed from the circle of elites, then why it could not be dissolved?
There were also discrepancies concerning the early expiration of the term of office of the President as a result of impeachment (article 124). On the one part, the draft Constitution stipulated that the basis for impeachment is the commitment of "intentional crime" by the President of Ukraine. On the other part, it is impossible to understand how the National Assembly of Ukraine may know that the acts of the president fall within the purview of criminal law? The article 66 of the project read: "the person is presumed innocent <…> until proved guilty according to law and until the court pronounces the verdict of guilty.” According to Constitution, the Supreme Court must participate in the impeachment must. Meanwhile the presidential project omitted it. But how under conditions of division of powers (without lords-judges) is it possible to know about the commitment of criminal act by the President?
At the same time, the article 125 of the project maintained that in the case of the early expiration of the term of office of the President his powers are conferred on the Head of the Senate. This chain of substitutions is justified, but too short. For example, what should the state do if the President and Speaker of the upper chamber perish simultaneously? The modern civilization makes leaders mobile, but the risks of their life grow, as the Polish tragedy near Smolensk showed. This challenge should be constitutionally responded to.
The sections six (Cabinet of Ministers of Ukraine) and seven (Court and justice) of the presidential project drew no special criticism. Nonetheless the indicated age of 27 years for a judge contradicts international practice. The experts believe that 30 years is the more adequate age for judicial selection. However, the draft contained a useful novel of constitutional appeal. This institute is a method of human rights and freedoms protection at the top constitutional level. The betterment included the new procedure of appointment of judges of constitutional court. Now each of them owes his/her office to the President of Ukraine and Senate.
As to territorial organization of power, the situation looked almost critical, because Ukraine cannot do without regional state administrations or their analogues. The article 166 of the fourth part of the project read: "in order to realize their full powers the heads of state administrations can (my italics––V.R.) set up offices in regions and cities." But how could the heads of oblast and urban administrations set up regional offices prior to state budgeting? There are 490 rural regions in Ukraine; thence the scale of government expenditures. On the average every oblast has twenty regions; therefore the issue of to create or not to create the regional state administrations was not a local one.
The presidential project gave Ukraine a chance to make a step forward to success. Having a chance to change Constitution, the President had to use it in the best way. In particular, the Basic Law had to be amended with sections on civil society, ecoefficiency, special regimes of martial law and national emergency and so on.
Several citizens’ information rights (right to access to official information) needed expansion; the academic freedom deserved a special constitutional article. On the whole, the new Constitution of Ukraine should have treated human rights and fundamental maintaining standards of the European Union. It might help Ukraine to relatively easily stop empty legal top-level rhetoric. The project of Constitution should have employed an axiom: the constitutional assertion of all equal rights and freedoms automatically meant the possibility of their legal defense. As far as these requirements were not taken into account by an official project, they became the subject of lawmaking efforts of Kharkiv human rights group6.
The model project of the Basic Law authored by the HHRG was a full-scale commented project of the new Constitution of Ukraine. This project was an important result of research and creative efforts of the HHRG in the area of protection of human rights and fundamental freedoms in Ukraine in 1994-2009. The model project envisaged the two-chamber structure of Ukrainian parliament––National Assembly of Ukraine, suggested presidential governance (the President of Ukraine is a Head of State Executive Power).The project of Constitution of Ukraine by HHRG asserted human and civil rights and freedoms according to international standards. The project proceeded from the fact that the legal framework in Ukraine is a future part of the space of European Union. Therefore the project of Constitution contained formulations which stood the test of time in such documents as the European Convention on protection of human rights and fundamental freedoms (1950) (and optional protocols to it); International pact about civil and political rights (1966); International pact about economic, social and cultural rights (1966); Charter of Fundamental Rights of the European Union (2005), Convention about access to information, participation of public in the process of decision making and access to justice in relation to environment issues (1998), European social charter and so on. The project of Basic Law foresaw (at the level of determination of principles of constitutional rule) protection of the freedom of speech on the basis of paradigm of the "First amendment" to the Constitution of the USA, prohibition of collective deportation of foreigners, mandatory application of three-component test in the case of limitation of constitutional rights and freedoms, consolidated academic freedom alongside with ban on limitation of the freedom of speech in science, art and education. As a basic element of constitutional rule in Ukraine the project promoted free movement of people, commodities, services and capital.
The project’s ideology was based on the heritage of national and general––Euroatlantic constitutional thought. The mass publication of Ukrainian version of the project with in-depth scientific commentary appeared twice on paper and was also placed on the HHRG site which made the text accessible for wide circles not only of Ukrainian public and experts. The project of Constitution according to HHRG was mailed directly to the people’s deputies of Ukraine, leaders of Ukrainian political parties, scientific and academic and educational establishments at home as well as anchorpersons of the top-rated political TV programs.
Constitutional initiative of the Bloc of Yuliya Tymoshenko
The draft amendments to the Constitution of Ukraine according to the Bloc of Yuliya Tymoshenko (BYT) appeared in the Ukrainian segment of the Internet in June 2009. This project was less systemic, than V. Yushchenko’ one; that is why its juristic commentary follows the articles enumeration in the Basic Law of Ukraine. The list of emendations started with the article 22 of the Constitution of Ukraine: the third part should be added a stipulation that in the case of adoption of new laws or amendments to current laws of Ukraine there would be no narrowing of the purview and volume of constitutional rights and freedoms. At a glimpse, it looked rational, as the first part of article 22 of current Constitution maintains that "human rights and freedoms envisaged by this Constitution are not exhaustive.” That is the BYT’s project only underlined that one can establish "the narrowing of purview and volume of present rights and freedoms" is possible only in relation to concrete right written and fixed in the Constitution.
Actually the problem of narrowing of constitutional human rights and freedoms was and is much wider. The development of human civilization is connected with the development of "the discipline of freedom", that is why in part three of article 22 of the Constitution of Ukraine it would be better to replace the words: "narrowing of purview and volume of constitutional rights and freedoms" (which sometimes cannot be avoided even diachronically) with: "violation of existent human rights and freedoms". The social progress automatically results in higher social discipline that in legal sense means the increase of volume of normative regulation. For example, year in and year out the realization of incorporeal right becomes more complicated almost everywhere and so on.
The BYT suggested adding the norm about possibility of forming of electoral blocs by parties during elections, and also by the norm rendering the appeal against party decisions impossible to the article 36 of the Constitution of Ukraine. They also suggested adding to the same article a clause that the state provides money for parliamentary parties. That is if the first suggestion of BYT brought the idea of creation of party blocs up to the constitutional level, the second one tended to put party democracy beyond control of Constitution and law. Obviously, sometimes corporate decisions can threaten lawfulness. For example, party can make decide to create armed security structures, which would better remain liable for appeal in court.
As for the state financing of politically effective parties, it is hardly the Constitutional problem. Almost every developed country furnishes financial assistance for its political system, but under conditions of Ukraine the duty of the state to support parliamentary parties contains overt corruption potential. One cannot welcome state support for winning parties in Ukraine knowing what kind of support the elected representatives of the people established for themselves in the form of official salaries, privileges and benefits (they get an apartment practically for nothing; the discrepancy between salaries of government-financed employees in Ukraine makes almost 1: 40, which is tenfold more than in the USA and Western Europe). The state must finance the participation of parties in the elections, but further budgetary support should be put off for the future.
The BYT’s amendment to article 41 of the Basic Law foresaw entitlement of Ukrainians to obtain information about enterprisers’ associations. As far as this article relates to section ІІ "Human rights, freedoms and duties", a simple question can be brought up: what is the use of the constitutional right to obtain information about enterprisers’ associations for a man from the street? Such right is exercised by the governmental financial and controlling and auditing services, but as a right of a private person it has to be envisaged in current legislation. The suggestion of BYT to amend article 55 of the Constitution with a clause that the individual decisions of the President of Ukraine, Verkhovna Rada of Ukraine, and Cabinet of Ministers of Ukraine are subject to the appeal in the Kyiv Appellate Administrative Court also looked unjustified. The legal sense of this norm draws no objections. The place of this novel looked doubtful only in constitutional text. In fact, it is a typical law related to national judicature.
One could but welcome the suggestion of BYT to amend article 63 of the Basic Law of Ukraine with a clause on the right of a witness to the criminal case to get legal aid. There was a welcome amendment by BYT to article 65 of the Constitution about the possibility of introduction of contract military service. However, there remained a problem with the availability of material resources and budget funds.
The amendments of BYT to article 77 of the Basic Law stood out. The BYT suggested amending article about elections of Verkhovna Rada of Ukraine with the following clauses: in relation to the introduction of open-list proportional representation; lowering of polling barrier down to 1%; tying in nominees with constituencies by party decision; introduction of two-round voting: two first-round winning parties are admitted to the second round; one-round election, if a party has become an absolute winner; rights for a party to change the priorities of nominees on electoral list during seven days after the approval of results of elections; early elections during 45 days.
The first proposed clause drew no special commentaries. If the proportional representation stands, the open lists seem justified. Correlating the first and third clauses, one could conclude that BYT stood for introduction of some elements of Polish electoral system, in which the national list was complemented with regional ones.
As regards one-percent-minimum access, there is hardly a rational argument in favor of it. Politically such advances to political demimonde looked senseless. In fact, such inflexible scheme permitted the winner to get everything. According to BYT, the two-round elections led to inflexible pattern of governance with small parties getting nothing. For example, if in the first round of elections the third party on the electoral list got a heavy vote, it had to ax its representation after the second round. And vice versa, the winning party increased its representation after the second round. The procedure can hardly be justified. In addition, the terse project of BYT allowed interpreting amendments so that after the second round there might remain only two parties (blocs) in the national parliament. In fact, this one-percent-minimum access was nothing but hypocrisy.
The proposed-by-BYT possibility to change the priorities of nominees on the list during seven days after approval of results of elections looks like undermining of these results. In the world there exist electoral systems with preferences, when voters can change the order of nominees on the party list. However, in this case a party could discretionarily manipulate the voters’ will. And it was difficult to make out whether this prioritization concerned only nominees screened by voting, or whether there was also a chance for those left in the basket to join the final through list.
The BYT’s protocol suggested to amend the Constitution of Ukraine with the new article (77-1) determining the composition of the Central Election Committee. The project suggested electing CEC consisting of 21 members chosen by lot from a number persons taking part in the contest conducted by the Higher Qualification-and-Disciplinary Commission. The new list of duties of CEC included elections of not only deputies, but judges as well. As it ensued from the amendments to article 126 of the Basic Law, the Higher Qualification-and-Disciplinary Commission applies its authority to judges of Supreme and Constitutional Courts of Ukraine, and also to members of the Central Election Committee. On the whole, the decisions of the commission had to apply to qualifying evaluation of judges of the Supreme and Constitutional Courts of Ukraine; bringing to book judges of Supreme and Constitutional Courts of Ukraine, and members of CEC; dismissing of the judges of Supreme and Constitutional Courts; submission for consideration of the Central Election Committee of nominations to the position of members of election committees.
Suggesting setting up a new body––the Higher Qualification-and-Disciplinary Commission––the project of BYT as much as hinted at the procedure of its establishment. The commission had to be formed by lot (draft amendments to article 126 of the Basic Law). Maybe, it would be better to lay out the specifics of procedure. It was also difficult to understand the logic of BYT’s amendments to article 78 of the Constitution of Ukraine; according to the new text the people’s deputies were allowed to become ministers. Moreover, the expression the people’s deputy means approximately the same as the notorious people’s democracy; combining representative mandate with the portfolio conflicted with the draft article 6 of the Constitution of Ukraine about branches of state power. If the state power in Ukraine is divided into three parts, one person cannot combine functions characteristic for different branches of power. It reminds of the Paris Commune which simultaneously decreed and executed its own revolutionary laws…
The BYT’s suggestion to article 81 of the Basic Law foresaw the possibility to strip a deputy of mandate as a result of expulsion from the faction by decision of the leading body of the party. In this way the BYT placed the connection between party and deputy higher than the connection of deputy with his voters. However a deputy is an elected representative of the people and not of a party. Maintaining that electoral rolls must be open, the BYT placed party higher than the will of people.
Of course, the Constitution of Ukraine should not recognize the imperative mandate. It is a classic in democratic countries (France, Italy, Spain, Great Britain and so on). Meanwhile, modern deputies personify personal understanding of national interests. The free mandate is known in Europe since 19th century; thence proceeds the impossibility of early recall of the senator or deputy. Moreover, the imperative mandate exists in China, on Cuba and in several developing economies. Ukraine would better stay out of that list. As far as an expulsion of the deputy or senator from the party does not result in the loss of representative mandate, the deprivation of party support at the next elections is considered a sufficient punishment.
The amendment of BYT to article 83 of the Constitution of Ukraine foresaw the right of the Prime Minister of Ukraine to convene special sessions of Verkhovna Rada of Ukraine. The term coalition they suggested to replace with the term parliamentary majority. The majority of constitutional composition of parliament had to nominate the Prime Minister, while the minority formed the opposition.
The BYT suggested removing part three from article 84 of the Constitution of Ukraine, which stipulates personal voting at the sessions of Verkhovna Rada of Ukraine. This novel permitted to vote by proxy. This procedure is a rarity and exception in the world practice.
However, the most important amendment was an attempt to change the competence of Verkhovna Rada of Ukraine. The BYT suggested to place under the authority of parliament: fixing the date of early elections of people’s deputies; approval of decrees of the President of Ukraine in relation to confirmation of decisions of the Security Council in the case of armed aggression against Ukraine; appointment of the Prime Minister of Ukraine (without nomination of the President of Ukraine). The parliamentary opposition was entrusted with: appointment of the chairman and members of the Chamber of Accounts; Ombudsman of Verkhovna Rada of Ukraine; participation in forming (appointment of 25 % of composition) of the National Bank Board of Ukraine, National Board of Ukraine on TV and Radio Broadcasting, National Commission on Energy Regulation, National Commission on Communication; appointment of the Head of Judicial Administration of Ukraine; appointment and dismissal of the Prosecutor General of Ukraine following the presentation of 150 people’s deputies.
These suggestions seemed consequent. On the other hand, what about guarantees if the opposition makes 5-6 percent of constitutional composition of the Verkhovna Rada of Ukraine? Taking into account the realities of Ukrainian policy, one could expect in Ukraine the consolidation of parliamentary majority after the model of Belarus or Russia. Moreover, the very removal of the President of Ukraine from forming of the government rendered his national elections unnecessary.
Interference of BYT in article 85 of the Basic Law envisaged exception from the competence of parliament the appointment and dismissal of one third of composition of the Constitutional Court of Ukraine. They suggested replacing the necessity of collective support of an appeal to the President of Ukraine with the right of every people’s deputy to the countrys leader for explanation. Another important novel suggested by BYT consisted in exclusion from the competence of Verkhovna Rada of Ukraine of consideration of question about responsibility of the Cabinet of Ministers of Ukraine on proposal of the President of Ukraine. This forbade the President to initiate the resignation of the cabinet.
According to the BYT amendments to article 88 of the Basic Law, the rule stipulating that the opposition elected the Chairman of the Verkhovna Rada of Ukraine and parliamentary majority elected the first deputy and deputy chairman should be abrogated. At a glimpse, such expansion of the minority rights seemed the triumph of liberalism. However, there remained a question of what the Verkhovna Rada of Ukraine was expected to undertake, if a substantial part of minority decided to join the winners? In such case the opposition might be represented by a marginal faction.
As the BYT suggested decreasing the parliamentary elections passing score to one percent, a hypothetical five-person minority could be formed in the parliament. Then a marginal leader could control the Verkhovna Rada of Ukraine. Still more doubtful was the suggestion of BYT to retire the Prosecutor General of Ukraine on the motion of 150 people’s deputies. Why should the Prosecutor General of Ukraine retire because of dissatisfaction of one third of elected representatives? In this case the logic of changes looked like the logic of absurdity. In democratic policy the fallacy is embodied by a minority. History may revalue the decision of majority, but common rule is to trust the majority in the present.
At large, the BYT suggested that the terms of reference of opposition included the election of the Chairman of Verkhovna Rada of Ukraine; chairpersons of committees on Budget, Freedom of Speech and Information, Human Rights and National Minorities, on Fighting Organized Crime and Corruption, on Legislative Support of Law Enforcement, on State Building and Local Self-Government; electing of the first deputies in all other parliamentary committees; electing of the head of standing committee of inquiry; appointment of the Ombudsman of Verkhovna Rada of Ukraine; appointment of the head and members of the Chamber of Accounts; appointment of one vice-Prime Minister; appointment of deputy ministers; appointment of the Deputy Prosecutor General of Ukraine; appointment of 25 % of composition of the National Bank Board of Ukraine, National TV and Radio Broadcast Board of Ukraine, National Energy Control Commission, National Communication Control Commission; right to supplementary report on the State Budget Bill of Ukraine and the program of government activity; right to form a shadow cabinet; right to make up an agenda of the Verkhovna Rada of Ukraine for one day per calendar month.
The commentary to these novels comes to above arguments. How would these norms work, if the opposition shrinks to a small group? Despite this threat, the projected status competed with that of the countrys leader. If Ukraine had a two-party system, one might understand the logic of Y. Tymoshenko. In real circumstances it did look strange.
The amendments of BYT to article 90 of the Basic Law contained the possibility of expression of no-confidence to the parliament at an All-Ukrainian referendum conducted on national initiative. In turn, the President of Ukraine was empowered to dissolve the parliament on the grounds as follows: 1) if during sixty days after the resignation of the Cabinet of Ministers of Ukraine the new government is not formed; 2) if the parliamentary session cannot begin within thirty days.
The suggestions of BYT to article 92 of the Constitution of Ukraine established the status of people’s deputies of Ukraine by law only. As for Verkhovna Rada of Ukraine, its organization and work could be determined also by by-laws.
The amendment of BYT to article 93 of the Constitution of Ukraine gave a right of initiation of bills to the Supreme Court of Ukraine (which is unobjectionable), and an amendment to article 94 allowed the Chairman of Verkhovna Rada of Ukraine to sign the laws of Ukraine if the President of Ukraine had not signed a law or had not returned it according to veto procedure during fifteen days after its reception from Verkhovna Rada. The latter suggestion was hardly positive for the dynamics of lawmaking. If earlier a law could be blocked by the President of Ukraine, now the Chairman of Verkhovna Rada of Ukraine could do it as well (the project made him the leader of parliamentary opposition).
The amendment of BYT to article 98 of the Basic Law empowered the Chamber of Accounts to conduct an inquest and pre-trial investigation inclusive with the right to commence an action and refer a case to the court. This novel expanded the circle of pre-trial investigation agencies, but its expediency looked problematic. In particular, it is impossible to understand, why investigator of the office of public prosecutor cannot do his job on the ground of special financial examination. It is also evident that renaming of agencies does not result in changing their functions. The novel could lead to professionalization of investigation in a certain category of cases, but it is not a problem of constitutional level, or is it?
The BYT also intended to substantially change the competence of the President of Ukraine suggesting a new wording of article 106 of the Basic Law: "The President of Ukraine: ensures the state independence, national security and legal continuity of the state; address the people and send an annual and special messages to Verkhovna Rada of Ukraine on internal and external situation of Ukraine; coordinates foreign-policy activity of the state; makes decision on recognition of foreign states; appoints and discharges on the motion of the Prime Minister of Ukraine of the heads of diplomatic missions of Ukraine in other states and at international organizations; accepts letters of credence and recall of foreign diplomatic representatives; on public initiative holds an All-Ukrainian referendum on the changes of Constitution of Ukraine and vote of confidence to the Verkhovna Rada of Ukraine; announces off-year elections of the Verkhovna Rada of Ukraine within terms determined by this Constitution; appoints the Commander-in-Chief of the Armed Forces of Ukraine; heads the Security Council; appoints one fourth of composition of the National Bank Board of Ukraine; appoints one fourth of the composition of National Board of Ukraine on TV and Radio Broadcast, National Energy Control Commission, National Communication Control Commission; awards higher military ranks, confers higher diplomatic ranks and other higher special ranks and class ranks; grants state awards; establishes presidential decorations and confers them; tables a motion on appointment and dismissal of the Chief of Security Service of Ukraine; makes decision to grant and deprive of citizenship of Ukraine, grant refuge in Ukraine; carries out right of pardon; has the right to veto laws accepted by Verkhovna Rada of Ukraine (except for laws on amendments to the Constitution of Ukraine) with subsequent return of them for reconsideration by Verkhovna Rada of Ukraine."
The governmental countersign of the acts of President of Ukraine was cancelled. Despite the fact that the President of Ukraine had to be elected by people, his authority reminded ceremonial duties. With such authority he could well be elected by Verkhovna Rada of Ukraine. The question was whether Ukraine needed a President at all.
The article 107 of the Constitution about the Security Council was renovated in the BYT’s project. The project suggested excluding the clause that the Security Council coordinates and controls the activity of executive bodies in the area of national security and defense from article 107. Instead the article 107 should be supplemented with the clause, in accordance with which the Security Council should be convoked by the President of Ukraine if there is a necessity to proclaim the state of emergency or martial law, occurrence of natural calamity, anthropogenic or ecological disaster, threat to state independence, territorial integrity of Ukraine, life and health of population of Ukraine.
It was suggested to constitutionally determine the full composition of National Security Council. The ex officio members of the body were supposed to be as follows: the President of Ukraine, Prime Minister of Ukraine, Chairman of Verkhovna Rada of Ukraine, Minister of Defense of Ukraine, Minister for Internal Affairs of Ukraine, Minister for Foreign Affairs of Ukraine, Chief of Security Service of Ukraine, Prosecutor General of Ukraine, Minister of Emergencies of Ukraine and Protection of the Population against the Aftermath of Chornobyl Disaster.
It was also suggested to stipulate in the Constitution the full list of questions receivable for consideration of Security Council, notably: to make decision on the motion on declaration of war and in the case of armed aggression against Ukraine, on the use of the Armed Forces of Ukraine and other legitimate armed units of Ukraine; to make legitimate decision on general or partial mobilization and introduction of martial law in Ukraine or in certain localities in the case of threat of attack, menace to state independence of Ukraine; to make decision, if necessary, on introduction in Ukraine or in separate localities of the state of emergency, and also to declare, if necessary, separate localities of Ukraine the areas of ecological emergency with follow-up approval by Verkhovna Rada of Ukraine.
Actually, the BYT intended to put the instruments of security guarantees under strict parliamentary control. Juridically the amendments reflected the response of Y. Tymoshenko to the activity of Security Council chaired by V. Yushchenko. At the time the government decisions were often amended by Security Council; therefore the renewal of the Basic Law gave rise for squaring of political accounts.
The novels of BYT to article 108 of the Constitution of Ukraine boiled down to impairment of presidential inviolability. The operating article was suggested to be supplemented with the clause that the President of Ukraine cannot be detained or arrested until a guilty verdict in relation to him comes into effect. It was logically intended to modernize the impeachment procedure. In particular, BYT suggested reducing the procedure of impeachment to the stages: 1) the majority goes to Supreme Court of Ukraine; 2) on the basis of conclusion of the Supreme Court of Ukraine the Verkhovna Rada of Ukraine by two thirds of constitutional composition relieves the President of Ukraine of his duties. Impeachment is an exceptional measure against an unlawful activity (inactivity) of countrys leader. As far as, on proposals of BYT the office of the President of Ukraine became mostly decorative, the procedure of impeachment lost its purposefulness.
The BYT suggested complementing article 113 of the Constitution of Ukraine with the norm that the Cabinet of Ministers of Ukraine is accountable to Verkhovna Rada of Ukraine and is not accountable to the President of Ukraine. In its activity it had to follow the decrees of the President of Ukraine only in accordance with paragraphs 5-7, 9-18 of article 106 of the Constitution of Ukraine. It was suggested below that the Prime Minister of Ukraine was appointed by Verkhovna Rada of Ukraine on majority motion. Thus all ministers of the Cabinet of Ministers of Ukraine had to be appointed by Verkhovna Rada of Ukraine on presentation by the Prime Minister. Article 116 of the Constitution of Ukraine suggested excluding the duty to fulfill the acts of the President of Ukraine from the competence of the government.
The additional powers of the Cabinet of Ministers of Ukraine included the appointment of one fourth of composition of the National Bank Board of Ukraine, National Board of Ukraine on TV and Radio Broadcast, National Energy Control Commission, National Communication Control Commission. The Cabinet of Ministers of Ukraine became responsible for appointment of the heads of local state administrations. In addition, they suggested amending the Constitution of Ukraine with the article on exclusive authority of the Prime Minister of Ukraine. In particular, the Prime Minister of Ukraine had to run the Cabinet of Ministers of Ukraine, central executive bodies and local state administrations; to act on behalf of the Cabinet of Ministers of Ukraine; to sign the acts of the Cabinet of Ministers of Ukraine; to control foreign-policy of the state; to negotiate and conclude international agreements of Ukraine; to submit presentations to the President of Ukraine on appointment and discharge of the heads of diplomatic missions of Ukraine in other states and international organizations; to submit presentation to the Verkhovna Rada of Ukraine about appointment and discharge of all ministers; to submit presentation to the Cabinet of Ministers of Ukraine on appointment and discharge of chiefs of other central executive bodies.
The project suggested stipulating that the chairpersons of the local state administrations be appointed and discharged by the Cabinet of Ministers of Ukraine on the motion of the Prime Minister of Ukraine. Moreover, the decisions of the heads of local state administrations could be countermanded by the Cabinet of Ministers of Ukraine or heads of local state administration of higher level.
From BYT’s suggestions to article 119 of the Constitution of Ukraine it followed that the local state administrations had to change their status. From now on they became representative bodies of the Cabinet of Ministers of Ukraine on respective territory. They took it upon themselves to control the implementation of Constitution and laws of Ukraine, acts of the Cabinet of Ministers of Ukraine. They also had to coordinate the local activity of territorial subdivisions of ministries.
If BYT’s suggestions had been realized, Ukraine would have become a republic ruled by a tyrant. Taking into account that the constitutions did not limit the Premier’s tenure, Ukraine could find itself under premier’s unlimited dictatorship. As is known, in Great Britain M. Thatcher premiership lasted for about two decades. It is hard to tell how long the premiership could last in Ukraine. Ideally the BYT’s model of executive power could limit the premier’s tenure by two successive convocations of the parliament. However, about the project it passed it by in silence. The said model was even more dictatorial, than the traditional presidential republic.
Taking into account that the majority of presidents in western democracies are reelected only once, one can surmise that the BYT’s project puts Ukraine at risk of restoration of authoritarianism in the form of parliamentarian republic. Pretending to renovate the Constitution the BYT tended to tighten its grip on centralized power. The latter was an erroneous step unacceptable for a European state. Consequently, the political hazard of Y. Tymoshenko could become not only a means of fight against L. Kuchma-like authoritarianism.
The project of BYT envisaged a new approach to the range of duties of public prosecutors office and justice regulations. For example, it suggested creating the State judicial administration with its head appointed by Verkhovna Rada of Ukraine. This body could set up courts and go about other administrative functions. Besides, the article 122 stipulated that the inquest, pre-trial investigation with a right to bring the case before court, referral it to the court and appearance for the public prosecution should be carried out by the office of public prosecutor, Ministry of Internal Affairs of Ukraine, State Tax Administration of Ukraine, State Customs Service of Ukraine, Security Service of Ukraine, Main Controlling and Auditing Administration, Ministry of Finances of Ukraine and standing investigator of Verkhovna Rada of Ukraine.
By its status the office of public prosecutor had to appear for public prosecution; speak for the state in court in cases stipulated by law; supervise the enforcement of the judgment in criminal cases; conduct pre-trial investigation. The Higher Board of Justice had to be dismantled and replaced with the system of qualification-and-disciplinary commissions; the duties of oblast qualification-and-disciplinary commissions had to cover local courts and territorial election committees, and the duties of interregional commissions had to cover appeal courts and district electoral committees. The duties of the Higher Qualification-and-Disciplinary Commission had to cover the judges of Supreme and Constitutional Courts of Ukraine and members of the Central Election Committee.
According to BYT, the duties of the said commissions should include: qualifying evaluation of judges; bringing to book of judges and members of election committees; discharge of judges; making a motion to the Central Election Committee about appointment of members of election committees. According to the protocol of BYT’s constitutional amendments, every qualification-and-disciplinary commission’s composition had to be formed by drawing lots. It was a no-go suggestion, though. The initial screening of nominees, list of outside participants, place and time of drawing lots remained undetermined.
As for the territorial management of Ukraine and constitutional status of Autonomous Republic of Crimea, the suggestions of BYT boiled down to as follows. The Chairperson of the Council of Ministers of Autonomous Republic of Crimea had to be appointed and discharged by Verkhovna Rada of Autonomous Republic of Crimea by agreement with the Prime Minister of Ukraine. It was suggested that on the grounds of non-compliance of normative legal acts of Verkhovna Rada of Autonomous Republic of Crimea with the Constitution of Ukraine and laws of Ukraine the Prime Minister of Ukraine can invalidate these acts and refer them to the Constitutional Court of Ukraine to determine their constitutionality.
The local self-government bodies were expected to resort to proportional representation elections with open lists. It had to be a two-round event: only two first-round winning parties were admitted to the second round; if a party became an absolute first-round winner, the elections were announced a one-round event; the leading body of the party determined the priority of nominees; the party could revise the priority of nominees during seven days after approval of the results of elections on the basis of criteria set by the leading body of the party; by decision of the leading body of the party the people’s deputy could be deprived of representative mandate.
According to BYT, local self-government elections did not differ from election of Verkhovna Rada of Ukraine. As far as no new local parties were to emerge in Ukraine, the local self-government bodies standing apart from the state, according to BYT, were subject to top-to-bottom party discipline. So, the difference between the state administration and self-government became unimportant.
It is known that interests of the state may not coincide with the interests of local communities. Meanwhile the BYT tended to revive the soviet system of representation of people. Maybe, the leaders of BYT were experts at the theories of liberalism; however, in practice they gave preference to the simplified and non-liberal political model. Less disapproval was caused by BYT’s idea of renewal of rada executive committees as executive branches of local self-government. This step failed to improve the pessimistic image of their constitutional project, though.
New priorities in making parliamentary coalition
The new priorities of making parliamentary coalition became a distinctive trait of constitutional process in Ukraine. This is a result of the Decision of Constitutional Court of Ukraine on April 8, 2010 admitting the possibility of individual membership in a coalition of deputy factions of Verkhovna Rada of Ukraine. The decision of the Constitutional Court was complex and triggered mixed public reaction. The Court was in a fix answering two questions: 1) how do the stipulations of the Constitution and Parliamentary Regulation correlate and what are the political consequences? 2) is it constitutional for the people’s deputies of Ukraine staying outside the coalition-forming factions to join the parliamentary coalition?
The first answer could not be unambiguous, as there were no precedents. We can but several points to make. The most important points include: (i) that there exist parliamentary regulations in all parliaments of the world and (ii) they are obligatory. Commonly, in constitutional democracies, the main rules, which relate to parliamentary procedure, proceed from respective basic laws. The regulations cannot change the procedural principles set by the act of a higher legal validity.
Hence there was a conspicuous blanket7 norm of the 9th part of article 83 of the Constitution of Ukraine, which made the Regulations not to develop or specify corresponding constitutional stipulations, but… to establish principles of "forming, organization of activity and disbanding of coalitions of deputy factions in the Verkhovna Rada of Ukraine". It allowed a legislator to use the Regulations of Verkhovna Rada and define something more important, than only elementary rewording of Constitution. Such was the peculiarity of normative regulation in Ukraine.
The practice of such acts as regulations is more or less similar in Spain, USA, Russia, Germany, and Japan. In other developed countries there may be no such separate document as regulation, but then the rules of parliamentary procedure function as legal convention or written rules set by parliament at various times and under different circumstances (Great Britain). Each country finds its own way to correlate parliamentary regulations with constitution. For example, there is a strict constitutional control of regulations in France, where draft regulations of chambers (as well as amendments to them) are to be referred to the Constitutional Council to confirm their compliance with the Constitution of France. In other states (Germany, Austria, Gabon, Kenya, Malta) the compliance of regulations with the basic law is resolved by Constitutional or Supreme Court.
Therefore, the regulations are a normative act adequacy of which to the constitution is checked with special procedure. However, the correlation of Regulations and Constitution in Ukraine is complicated by certain circumstances. For example, the surprisingly rapid, by Ukrainian realities, formation of M. Azarov’s government may be considered as formal violation of the norms of Constitution and returning to common sense. In fact, in 2004 the Ukrainian constitutional legislation was at variance with the requirements of organic normativeness as a result of impermissible voting of constitutional amendments in one package with the ordinary law. In 2004 the political reform was conducted with violation of lawmaking logic that later led to system confusions in the body of Basic Law. Anyway, beginning from December 8, 2004 the Constitution of Ukraine contained two discordant legal trends. The first one (supported by the decision of Constitutional Court of Ukraine on April 8, 2010) consists in absolutizing of the free mandate of people’s deputy of Ukraine; the second trend is an attempt to bring parliamentary existence under corporate (party, faction, in the long run coalition) discipline.
Therefore the Constitution of Ukraine featured arguments in favor of two competitive legal positions. Thence the Constitutional Court of Ukraine had primarily to minimize the consequences of normative opposition. To perform its mission the Constitutional Court had to determine what legal trend is more organic. In fact, the law must stand above human passions and emotions, if it embodies human mind. However, in young democracies, which Ukraine belongs to, the law often embodies different political pursuits.
For example, article 5, first part of the article 38, first part of the article 79, second part of the article 80 of the Basic Law of Ukraine reflected the logic of weakly structured Verkhovna Rada of Ukraine. Such approach granted free mandate for the people’s deputies of Ukraine––freedom of choice of parliamentary conduct. But if it was a free mandate, no faction or coalition discipline could be considered an absolute. Therefore the parliamentary coalition could exist only for creation of national government. The moment the Cabinet of Ministers was formed, the prolongation of coalition became unnecessary. Otherwise the fate of government and domestic political stability could directly depend on the stand of a few deputies.
Moreover, both individual and corporate membership in coalition did not induce the people’s deputies to vote "pro" or "contra" on any motion. It was expedient only as a method of nomination of Prime Minister and members of government of Ukraine. It was a major issue, because political ideologies and party discipline are still in the making in Ukraine. In real life they look like artifacts and phantoms.
Therefore the actual (through admittance of individual coalition membership) returning of Ukraine to the model of forming of the Cabinet with a simple majority vote looked like returning of Ukrainian constitutionalism to the common sense. Since the political system of Ukraine was organically simple, the introduction of complex legal rules for operability assurance was premature and harmful. This circumstance de facto justified the Decision of Constitutional Court of Ukraine on April 8, 2010, which acknowledged the legitimacy of coalition on the basis of combination of faction and individual membership.
The permission to form coalition by means of admission of individual deputies meant permission to support Prime Minister and members of the cabinet on the basis of personal liking and trust. Strictly speaking, the people’s deputies had such opportunity from the very beginning. Simply corporatism and party hypertrophied discipline competed in Ukrainian law with free deputy mandate, because the only ideologically competitive domestic paradigms include somewhat subdued socialism and underdeveloped capitalism.
In particular, the accentuated (part 2 of article 80 of the Constitution) freedom of parliamentary conduct, prohibition of imperative mandate for the people’s deputy were display of west political liberalism. While the excessive, taking into account the state of political system of Ukraine, pretensions to party and faction discipline (point 6 of part 2, part 6 of the article 81) embodied remains of soviet democratic centralism.
Such "constitutional dualism" led to adoption of the Law of Ukraine "On the Regulations of Verkhovna Rada of Ukraine" on March 9, 2010. Already the title "Regulations of Verkhovna Rada of Ukraine" pointed not to legal validity, but to functional purpose of this normative act. However, the adoption failed to fully satisfy the requirements of point 21 of the first part of article 92 of the Constitution of Ukraine: "Only the laws of Ukraine determine: <…> organization and procedures of the Verkhovna Rada of Ukraine, status of people’s deputies of Ukraine."
The Constitutional Court of Ukraine had already acknowledged the "Regulations" as the decree of Verkhovna Rada of Ukraine unconstitutional, because, according to Constitution, it should have been a full-fledged law. Did the "Regulations" become such law after March 9, 2010? Maybe no; because a law of Ukraine affirming other normative act does not turn it into a part of a law. For example, the Constitution of Autonomous Republic of Crimea is the constitution of autonomy, and not the law of Ukraine, and the international agreements ratified by Verkhovna Rada (in the form of law) are not the laws of Ukraine. Such acts have a specific level of stability, legal validity and so on. Adoption of the Constitution of Autonomous Republic of Crimea by the law of Ukraine does not require the constitutional majority vote of Verkhovna Rada of Ukraine, but legally ratified international agreements remain juridically higher than the laws of Ukraine. Such sources of law are not also subject to other domestic rules of legislative process. Their emendation requires participation of special subjects and another procedure.
All of it shows that at the level of current legislation the flaws in the Basic Law of Ukraine can be eliminated only partly. Point 15 of article 85 of the Basic Law of Ukraine changed in 2004 ascribed the "adoption of Regulations of Verkhovna Rada of Ukraine" to the authority of Verkhovna Rada of Ukraine and point 21 of the first part of article 92 asserted that regulations should be a law; therefore the simple approval of "Regulations" by law this collision can be tackled only partly.
The answer to the second question arises from the analysis of article 81 of the Constitution of Ukraine; e. g., part sixth of article 81 of the Constitution of Ukraine maintains that the non-membership of people’s deputy of Ukraine elected from a political party (electoral bloc of political parties) to the complement of faction of this political party (electoral bloc of political parties) or deputy’s withdrawal from composition of such faction results in the pre-term stopping of credentials of the people’s deputy, ideologically conflicts with articles 5, 38, 69, 79, 80 of the Basic Law of Ukraine, which stipulates no "disciplinary" mediation of parties, blocs, factions or coalition in relationships of citizens with their elected representatives.
According to the spirit and the letter of the Basic Law, the mandate of the elected people’s deputy of Ukraine is not subject to political verification after the elections. The political selection and control of nominees to people’s deputies of Ukraine should be carried out only at the stage of electoral listing. Afterwards the fate of people’s deputies should not depend on party’s stand. However, relations among people’s deputies, parties and people were deformed by amended articles 81 and 83 of the Basic Law in 2004. On the basis of these amendments the Ukrainian parties were entitled to early stop the empowerment of people’s deputies for their activity admitted under free mandate (part 2 of article 80 of the Constitution of Ukraine).
On the whole, strengthening of party discipline in the parliament is only a trend in modern constitutional legislation. If the "British" model shuts out free expression of will of the deputies about fundamental political issues, the "American" model of people’s representation allows the parliamentarians to be relatively free in their political choice. However, even with strict party discipline the parliamentarians in the west are not subject to deprivation of mandates for dissident voting, political declarations or actions. If people cannot recall the deputy, then parties have even less grounds to this purpose. Therefore the norm of point 6 of part 2 of article 81 of the Constitution of Ukraine on possibility of termination of deputy’s authority by decision of the party (bloc) was unjustly hard and inconsistent with the general spirit of Basic Law. On the one part, constitutional norms made the people’s deputies individually free, on the other, they thrust upon them corporate loyalty. All of it was really unfortunate not only because the organic parliamentary existence should be discursive. It is more important that the strict faction discipline in Ukraine combined with its immature political system.
Usually the parliamentary republics use high political culture of parties as a pre-condition of their existence. Ukrainian parties do not have such culture. Their number testifies to excessive ambition and obstinacy of Ukrainian political elite. Main versions of political ideologies (conservatism, liberalism, moderate nationalism) remain unformed in Ukraine. These flaws may be eliminated only by gradual evolution, and parliamentary republic in Ukraine remains practically problematic.
One cannot ignore that historically almost never Ukrainian parliamentarism was successful. Activity of Central Rada, "collegiate dictatorship" of Directory and later decisions of Workmen’s Congress were marked with frank abuse of political rhetoric, eclecticism and populism. Although the Central Rada adhered to democratic procedures and its leader М. Hrushevskyi did not give himself up to authoritarianism, the Ukrainian parliamentarism suffered a disaster. From the times of B. Khmelnytskyi till the Hetmanate of P. Skoropadsky, Ukraine had effective democracy on the basis of strong centralized power. Moreover, the ethnocultural division of Ukraine into “east" and "west" constantly reproduces the pendulum effect at parliamentary and governmental levels. Moderate fluctuation of priorities in the parliament is rather normal, but in Ukraine it always threatened to turn into fluctuation of state strategies.
The decision making in presidential republics is dynamism, while in parliamentary republics it is slowed-down, which should be accounted for in Ukraine, where political parties and factions remain excessively "self-sufficient". Therefore Ukrainian parliamentarism risked to be chronically stagnant in its response to challenges of time. No wonder that the Constitutional Court took these aspects into account in its Decision. It had to make a difficult choice, but a considerable percentage of the progress of Ukraine depended on it.
From the legal point of view (article 83 of the Basic Law), the subjects of forming of parliamentary coalition in Ukraine were deputy factions. As for individual deputies, they could express the solidarity with the founders of coalition by free ballot (part 2 of article 80 of the Constitution). On the other hand, this very ballot made them potential participants of any constituent procedure.
Considering that the people’s deputies of Ukraine represent all nation and have no imperative mandate; that they are elected by people not to coalition, but to Verkhovna Rada of Ukraine; that the electoral rolls may include both party members and nonpartisans; that after taking the oath the people’s deputy has a right to free vote on any issue; that the only function of coalition is to form the government of Ukraine, the issue of joining a coalition by individual deputies is tackled positively almost automatically. Therefore there gradually emerged the principle: the coalition should be formed by corporate subjects––parliamentary factions, but it may include individual deputies as well.
Simply speaking, the permission for individual deputies to join the coalition was but permission to support the nomination of Prime Minister and members of the cabinet by personal voting. The deputies had and have this right from the moment of taking the oath. The form of deputy’s activity consists of verbal and textual argumentation, pro and con voting on any issue. And not a single faction can imperatively influence its (argumentation) use.
Moreover, the deputy’s "classic" joining the coalition through intermediary of faction does not automatically make him to vote for a choice made by coalition. Even as a member of faction, which is a part of coalition, the deputy preserves the right not to vote for the candidate running for Premiership. For that very reason every parliamentarian should have the right to enter a coalition and help to form the cabinet. Otherwise the formation of government can become unfeasible or dependent upon corporate agreement only of "influential" elected representatives. The latter is illogical, because by Constitution every people’s deputy in relation to people of Ukraine has equal rights with other people’s deputies.
In any case, the degree of development of Ukrainian political system in 2010 pushed the national constitutional model to relatively simple representation of people. It became a sufficient argument to legalize individual membership in coalition employing the Regulations of Verkhovna Rada of Ukraine. Especially as the Constitution of Ukraine, as stated above, presumed that the Regulations determined the principles of activity of coalition of parliamentary factions. Certainly, in future it would be expedient to turn the Regulations into a classic law. The strict corporate model of forming the cabinet would better be recognized as threatening for the political development of Ukraine.
Abrogation of political reform
The final word about Ukrainian constitutional crisis of 2004-2010 rested with the Decision of Constitutional Court of Ukraine which considered the constitutional presentation of 252 people’s deputies of Ukraine about the constitutionality of the Law of Ukraine "On amendments to the Constitution of Ukraine" from December 8, 2004, No. 2222 (the case about adhering to the procedure of amending the Constitution of Ukraine) from September 30, 2010.
No sooner the above decision was published on the site of Constitutional Court of Ukraine on October 1, 2010, than the free public began to comment its political and legal properties, while public officers "dependent" public started adjusting normatively-legal acts in accordance with Constitution of Ukraine of June 28, 1996 in the version prior to emendations made on December 8, 2004.
Did the Constitutional Court of Ukraine exceed its authority? Maybe not, because the control over the procedure of amending of the Basic Law of Ukraine is its routine duty, like control over merits of drafts of constitutional norms. One can declare legal acts unconstitutional if there are "violations of procedure of their consideration, adoption or implementation stipulated by the Constitution of Ukraine" (article 15 of the Law of Ukraine "On the Constitutional Court of Ukraine"). It is known that the most powerful guarantee of correctness, compliance of legal norms with the requirements of the Constitution of Ukraine is the flawless procedure of their adoption and taking effect. According to the most popular definitions, the real democracy brings about undetermined results conditional on determined procedure. It is an axiom of political and constitutional science and practice.
The proper procedure is such procedure that provides for sufficient time and necessary conditions for intellectual analysis and balanced estimation by all authorized initiators of bills. Moreover, the constitutional procedure goes far beyond simple recipes for high quality legal products. Violation of proper procedure in Constitutional law can misrepresent the will of people. The violation of constitutional procedure of emendation of the Basic Law of Ukraine means ignoring of both imperative and non-mandatory norms of section ХІІІ of the Basic Law which can be amended by Verkhovna Rada of Ukraine only in the case of confirmation of such attempt by national referendum. Juridically it means that the procedural aspects of constitutional lawmaking have the same maximum degree of legal protection as the determination of bases of constitutional system of Ukraine. Simply speaking, to change the procedure of making amendments to the Constitution of Ukraine, it is necessary to get approval of novels at the national referendum (article 156 of the Constitution of Ukraine).Whether the constitutional procedure of making amendments to the Basic Law of Ukraine was violated in December 2004 is but a rhetorical question, because all interested parties know that it was violated8. The court made reference to two qualitatively different procedural violations, though in fact there were many more. First, grammatically and stylistically amended draft constitutional provisions were not transferred for examination to the Constitutional Court. The critics of judicial decision on September 30, 2010 can say that amendments unverified by the Constitutional Court of Ukraine were editorial and not of principle. Maybe, but even if the parliament will allow replacing only one legal notion by its synonym, as a result the norm will change, because there are no absolute synonyms. Besides, everyone knows the power of syntax and grammar, and that once you get your feet wet…
Second, the amendments were adopted in package with the bill norms of ordinary level. Third (which was dropped from the Decision of the Constitutional Court), the amendments were submitted under conditions of actual state of emergency. At the time Ukraine was seized with political and personal strives, the authority of the President was radically undermined, and nobody cared to listen to him as a source of power. The throng had just quit blockading public buildings and transport; tumultuous crowds continued rallying on Khreshchatyk, the main street of Kyiv. Obviously, such modus vivendi looked unfavorable for amending the basic law of any country. The experts may remember how the classic decision of the Supreme Court of the USA in the Scottsboro Trial (1932) overturned convictions, because, in particular, "the trial from the beginning and to the end took place in a tense, hostile and excited atmosphere" of the city the townsfolk of which "were extremely hostile [to the prisoner at the bar]"9.
Thus, not by chance the second part of article 157 of the Basic Law reads: "The Constitution of Ukraine cannot be changed in the conditions of martial law or emergency state." Although the emergency state was not officially declared in Ukraine, everybody knows that President L. Kuchma, isolated in his suburban residence, was unable to do it. The political crisis went too far, preventive legal mechanisms failed; therefore it was too late to declare the state of emergency. There happened the Orange (typologically - velvet) revolution in Ukraine, a veritable democratic uprising, which Speaker of Verkhovna Rada V. Lytvyn called a possible prologue to the Civil War. Besides the parliamentary power in December 2004 continued being afraid of masses trying to storm the main building of Verkhovna Rada. On the New Year Eve mobs swarmed on Ukrainian squares demanding restoration of truth and justice.
Also nobody knows for sure, what means the quoted prohibition of article 157 of the Basic Law: does it mean the actual state of emergency (as any revolution), or only the one declared by the President and supported by Verkhovna Rada of Ukraine. If the latter is correct, then declaration of emergency state by a tyrant could easily frustrate adoption or emendation of any basic law. Thus, the hypothetically narrow interpretation of article 157 (the state of emergency is the exceptional consequence of the Presidential Decree) is not self-evident. Not by chance such passionate critic of the Decision of Constitutional Court on September 30, 2010 as Y. Tymoshenko called in December 2004 the voting of Nasha Ukrayina deputies in favor of political reform the treason of revolutionary cause. The absence of V. Yushchenko’s pro vote fixed by electronics she explained by her personal influence on Victor Andriyovych.
Juridically still more unacceptable was the "package" voting for constitutional changes and amendments to election law. In its Decision on September 30, 2010 the Constitutional Court with reservedly noted: "The simultaneous adoption of independent legal acts, the matter of which, procedure of consideration and adoption stipulated by articles 91 and 155 of the Constitution of Ukraine, are different, which testifies to violation of the second part of article 19 by Verkhovna Rada of …” In fact, at the time the package voting led not simply to juridical violations, but to logically and juridically impermissible reversal in normative regulation, when the part of norms of lower (ordinary) level (changes in the Law "On elections of the President of Ukraine") determined the part of norms of higher (constitutional) level, which at the time determined governance in Ukraine.
It is worthwhile to underline that from the legal point of view the package voting looked not only and not so much simultaneous (position of the Constitutional Court), as summary. Usually the package combines different bills which are voted together covering the bulk of bills. If the first bill from the package had envisaged quintupling of the salary of elected representatives and second one the change of constitutional rule, nobody would have doubted the success of political reform. To condone such approach means thinking that the end justifies the means. But morally justified is the opposite: low means cannot lead to noble intentions.
In his commentary in "Kyiv Post" (01.10.10) Secretary of Venice Commission Thomas Markert said: "The Venice Commission did not consider Constitution 2004 undemocratic, " and that “it was a surprise that Constitution effective for six years (and used by the Constitutional Court) was acknowledged invalid.” However in this case the Constitutional Court of Ukraine failed to show that it considered or had considered the matter of Law No. 2222 of December 8, 2004 "undemocratic" or liable to criticism. In addition, Th. Markert does not take into account the fact that the Constitutional Court of Ukraine, unlike Anglo-Saxon courts, is not authorized to officially interpret the Basic Law in all those cases, when it looks expedient. Maybe it is a paradox, but the Constitutional Court of Ukraine can have the lowest opinion of the constitutional norm, but it must fulfill it until there is a corresponding subject of constitutional presentation, which will in a juridically consistent way cast doubt on it.
It is worth underlining that although the Venice Commission did not consider the change in Constitution 2004 of Ukraine "undemocratic", it in no way justified or welcomed these changes. So, in the general "Conclusion about three bills on amendments to the Constitution of Ukraine" on December 13, 2003 the Venice Commission had to state: "The Commission acknowledges and welcomes the effort of Ukraine to reform management and bring it closer to European standards of democracy. It seems that exact solutions in different bills fall short of the goal and introduced amendments to the Constitution are a step backwards (my italics––V.R.)."10 So, it seems that from the point of view of the Venice Commission the abrogation of 2004 political reform might be considered a step of Ukraine in the right direction.
In the Internet and on Ukrainian TV channels the discussion took place whether after abrogation of constitutional changes the early elections of the President and Verkhovna Rada of Ukraine should be held, because people elected these bodies with different, than those foreseen by 1996 Constitution, scope of authority. The possible answer may be as follows. People elect concrete persons to the office of deputy or president, but under normal circumstances they do not determine their authority in this quality. The determination of competence of the Verkhovna Rada authority of the President of Ukraine is the traditional prerogative of the Basic Law which stands higher than current people’s will or desire. The sovereign nation can eventually change the constitution, but until it is effective, people must subordinate to it, like the state machine and the state as a whole. According to Baron d’Holbach, the Constitution is a bridle for leaders and people, i. e. it is a superior regulator in relation to society on the whole. Unfortunately, in Ukraine not all lawyers and politicians understand that an organic constitution is a limiter of both representative and direct power of people.
On the other hand, in the case of sudden change of competence of state structures their reelection may be an optimal crisis control method preventing conflicts. Moreover, as Y. Barabash says, "sooner or later, but the opposition among higher institutions of power under mixed government can be felt; and the reason of it is not so much in imperfection of constitutional formulations, <…> as the attempt to realize their political programs and plans by top brass." Such opposition becomes more stubborn, when constitutional status of higher public institutions change as a result of reform. The author maintains that "it is worth reelecting all representative bodies which are modified due to changing constitutional model of governance."11
In Ukraine such reelections could take place only on condition of voluntary resignation of the President and dissolution of Verkhovna Rada. The statutory Constitution and laws of Ukraine contain no such imperative, which was stated by Speaker V. Lytvyn on October 1, 2010. Therefore the way out might be as follows: under the circumstances the re-election of parliament and President of Ukraine is possible, but not obligatory. Knowing domestic realities, it is difficult to believe that the Ukrainian electorate, except for 2-5% of activists, is well-informed about the transformations of constitutional status of parliament and Ukrainian countrys leader.
As for the opinion expressed in the media that after the Decision of the Constitutional Court there is no legitimate power in Ukraine, it is but an overstatement. The abrogation of political reforms took effect from the moment of reading out of the court’s judgment, which has no retroaction. That is everybody holds his office, if this job is still there. The authority of certain staffers and public bodies changes, but it does not influence their democratic justification and legitimacy. People use elections to carry their candidates before Basic Law which is the highest legal product of the same people. Partly that is why in Ukraine, as well as in the most developed economies, they do not acknowledge an imperative mandate. In fact, there exists legalization of current political power, but there is also ascending (initial) legalization of abstract power of constitutions. Simply speaking, people give its consent in advance to determine the competence of public bodies and authority of the president or other high ranking officials. In Ukrainian case it took place on the day (night) of adoption of the Constitution of Ukraine on June 28, 1996.
All of it means that connection among people’s will and competence of the President and parliament of Ukraine continued to be carried out not at tactical (elections), but at strategic (passing of the Basic Law) levels. That is election of concrete people to the job does not directly influence and should not influence their authority. Usually the change of authority should not affect concrete political fates, because in this case we have to deal with different channels of political will of people. Such channels are autonomous and do not intercross. Certainly, in this case it is worth taking into account political expediency. On the other hand, not all "flaws" of constitutional regulation are indicative of legal negligence. Silence of the basic law may result from accumulation of political experience which simply does not come in view at once.
Did abrogation of political reform trigger totalitarian trends in Ukraine according to Y. Tymoshenko? No doubt, the opposition must safeguard freedom and democracy in the society and must warn of any threats. However it seems that the Decision of the Constitutional Court of Ukraine on September 30, 2010 not so much provoked totalitarianism, as irritated the opponents of the power. What unsuccessfully and inconsistently V. Yushchenko aimed to do was carried out by political force of his basic opponent.
On the whole, if we shuffle out of the instances of personal opposition, we can see that all elected authorities in independent Ukraine de facto followed the model which was nearer to Constitution 1996 than to the core idea of Ukrainian political reform. By decision on 30.09.10, the Constitutional Court as much as brought formal Constitution of Ukraine nearer to its more organic, adequate state. Actually, for 20 years now, the Ukrainian policy has been lacking not so refined parliamentarianism, as elementary morality, decent level of general education and political culture. Explaining as simply as possible the ABC of constitutionalism, the 1996 model of Basic Law is much better than 2004 model.
As Ukrainian democracy still remains relatively naive and simple, the main threat consists in populism, weakness of political culture and narrowness of suggestions on political market. Therefore it is important to know whether President V. Yanukovych will rest on his laurels. If so, the revival of Constitution 1996 is but palliative, because freedom-loving and democratic Ukraine deserves much better Basic Law; so, the Constitutional process in Ukraine should go on12. The drama of political rivalry between Yanukovych and Tymoshenko can overwhelm existing contrast. One way or another, but the essence of political confrontation in 2010 is not so much in distribution of powers, as in the question of whether the Constitution of Ukraine in principle can get rid of empty rhetoric and infantilism, whether it is ready to become a guarantor of freedom of civil society, or will it stimulate creativity and at the same time limit prerogatives of bureaucratic power.
The representatives of legal community, concerning the Decision on 30.09.10, put a question, whether the Constitutional Court had a right to initiate proceeding in matters of political reform after its refusal in 2008 to analyze the matter of Law of Ukraine "On amendments to the Constitution of Ukraine" on December 8, 2004, which implemented this reform.
The possible answer is as follows: the constitutional (supreme) courts of various countries used to adjudicate radically changing their previous legal position. For example, the U.S. Supreme Court awarded juridical decisions on civil rights in the 20th century and repeatedly canceled its own decisions on this issue in the 19th century. The latter contained segregative approaches in defining legal status of certain categories of the people of the United States. That is the Supreme Court at different times understood (and interpreted) the same norms of federal law in different ways. Simply they understood equality in the 19th century more narrowly than in the 20th. There is also a broad constitutional practice in Turkey, South Africa, India, Pakistan, Bangladesh etc.13
In addition, the Ukrainian situation was and is substantially different from the version outlined by media as a national problem. The Constitutional Court of Ukraine has no rights to doubt the material norms of Basic Law in force, because juridically it is positioned not above, but under the Constitution of Ukraine, a part of which became in 2004, after presumption, a political reform. However in its Decision on 30.09.10 the Constitutional Court did not express its attitude toward the matter of the Law of Ukraine No. 2222 as such. Its conclusion touches only the method of adding changes (exceptions, additions) to the body of Basic Law. Both virtually, and juridically the Court recognized the fallaciousness of legalization, but not the quality of material used to make legal implant.
It is also true that the Constitutional Court during six years based its decisions on presumption of effective political reform. However, the Constitutional Court is doomed to doubt and deny only then, when it is required by external subjects in a legally irreproachable form. But if any subject of constitutional presentation stipulated by article 41 of the Law "On Constitutional Court of Ukraine" timely charged the Constitutional Court to officially interpret Section ХІІІ of the Basic Law of Ukraine and explain whether this section admits voting in package with an ordinary law for amendments to the national Constitution, the political reform would have crashed earlier. Once and again the Ukrainian human rights activists tried to rivet deputies’ attention to this aspect of the problem, but each time they failed due to the lack of will or politicking of factions.
Judging from the response of Ukrainian media, the next open question was whether the Constitutional Court had a right, taking into account its authority, to decide to revive the Constitution 1996. It seems that in this case we deal with the ill-posed problem, because the Constitutional Court did not decide to revive the 1996 Constitution, but declared the method of its renewal void. Speaking metaphorically, the Court stated the fiasco of attacker, and not the death and happy resurrection of the victim. As the attacker (parliament) had lost in this case, the Constitution remained safe and sound and––automatically––operative. In this case it did not matter that the duel lasted six years. If introduction of constitutional novels in the context of political reform on December 8, 2008 had been carried out in one parliamentary voting and simultaneously with abrogation of a number of norms of the "old" (1996) Constitution of Ukraine, then in a similar way by one decision and simultaneously the initial constitutional text was restored. As an attempt of emendation of the Constitution of Ukraine was acknowledged unconstitutional, the old norms automatically continued functioning.
As for the terms in office and dates of regular elections of the people’s deputies of Ukraine and President of Ukraine according to operative Basic Law, they should be determined by grammatical (dates) and teleological (terms) interpretation of the norms of Basic Law. It means that the President, parliament and Constitutional Court of Ukraine should consider invalid the legal approach to the situation, which was reflected in the Decision of Constitutional Court on presentation of 53 and 47 people’s deputies of Ukraine about official interpretation of the third part of art. 103 of the Constitution of Ukraine (the case of the presidency) of December 25, 2003.
On the whole, establishment of the time-limit of staying in office of top officials mostly means that extended terms in office are undesirable or dangerous for the country. As a rule, the determination of time-limit of the presidency is about the threat of corruption, tribalism and other negative consequences of unbound political ambition. Speaking about the terms of authority of the parliament one should also take into account the arguments of political "fashion": cyclic change of moods and likings of electorate. As it follows from the grammatical and teleological interpretation of the norms of Constitution of Ukraine, the President of Ukraine should be reelected to his post on the last Sunday of October of the fifth year of presidency (that is four months earlier than by the old article 103 of the Basic Law). The Verkhovna Rada of Ukraine had to be reelected on the last Sunday of March of the fourth year of actual term of office. It means that next (regular) parliamentary elections should take place on March 27, 2011. The analysis of the first part of article 77 and fifth part of article 103 of the Constitution of Ukraine shows that the extension of the term of office of people’s deputies and President of Ukraine is impermissible.
At the time M. Savenko, the Constitutional Court Judge expressed his own opinion on the decision of the Constitutional Court of Ukraine in the case about constitutional presentation of 53 and 47 people’s deputies of Ukraine about official interpretation of the third part of article 103 of the Constitution of Ukraine (about the terms of presidency) and said that the Constitution of Ukraine is "designed to preserve democratic political regime in Ukraine, limitation of possibility of establishment of authoritarian regime. <…> Unfortunately, the Constitutional Court of Ukraine not only failed to use teleological interpretation and, accordingly, did not take into account the purpose of the norm about official interpretation of which [it was] the petition asked, but blocked this purpose as well <…>."14
It is worth readdressing now of the warning of the honest judge to the situation with possible interpretation of the first and fifth part of article 103, first part of article 76, first part of article 77 of the Constitution of Ukraine determining the authority and terms of office and date of elections of the President and Verkhovna Rada of Ukraine. In practice the constitutional court of the civilized country may and must correct its own faulty decisions and errors. The Constitutional Court of Ukraine has just defended the inviolability of domestic Basic Law. Now it would be only logical to expect the next step: minimization of terms of office of people’s deputies and leader of Ukrainian state in accordance with the letter and the spirit of constitutional rules.
1 Prepared by Vsevolod Rechytsky, Expert on Constitution of Helsinki Human Rights Group.
2 The author employs the modern Ukrainian term sobornist, which in fact brings together such meanings as unity of faith, religion and civil aspirations (translator’s note).
3 See: Речицький В. Чому точаться такі бої за депутатські мандати?// Слово (США), № 18, 5 травня, 2006. – С. 20, 24.
4 See: http://www/eprevda.com/ua/news/2010/10/18/252448/
5 Кожев А. Атеизм и другие работы. – М.: Праксис, 2006. – С. 304.
6 For the commented version of the draft project see: Проект Конституції України – 2009. Перспектива прав людини. – Харків: Права людини, 2009. – 144 с.
7 Applying to all areas or situations.
8 See in more details: Колісник В. Процесуально-процедурні аспекти проведення конституційної реформи // Конституційна реформа: експертний аналіз. – Харків: Фоліо, 2004. – С. 63-72; Футей Б. Коментар з приводу спроб внесення змін до Конституції України // Конституційна реформа: експертний аналіз. – Харків: Фоліо, 2004. – С. 42-45; Речицький В. Меморандум Харківської правозахисної групи з приводу загрози політичної реформи в Україні // Krytyka, No. 9(95) September, 2005. – С. 3-4; Речицький В., Захаров Є., Рапп І., Северин О. Відкритий лист Харківської правозахисної групи з приводу загрози політичної реформи // Krytyka, No. 9(95) September, 2005. – С. 3; Речицький В., Захаров Є. Відповідь на лист В.Чемериса з приводу загрози політичної реформи в Україні // Prava Liudyny, No. 26(390) September 16-30, 2005. – С. 4; Речицький В. Меморандум Харківської правозахисної групи з приводу загрози політичної реформи в Україні (open letter enclosure HYRG of 27.09.05) // Lvivska gazeta, No. 176 (742) September 30, 2005, etc.
9 See: Громадянські права. Рішення Верховного Суду США. ХХ століття. – К.: Вид-во «Оптима», 2005. – С. 93-94.
10 Quoted after: Венеціанська комісія: Висновок щодо трьох проектів законів про внесення змін до Конституції України // Конституційна реформа: експертний аналіз. – Харків: Фоліо, 2004. – С. 41.
11 See: Барабаш Ю. Державно-правові конфлікти в теорії та практиці конституційного права. – Харків: Право, 2008. – С. 31, 33; Барабаш Ю. Дострокові вибори як засіб врегулювання державно-правових конфліктів // Pravo Ukryiny, No.11, 2007. – P. 126-130.
12 There is a gross hypocrisy in current constitution in Ukraine, if we compare the contents of the first part of the art. 3 of the Constitution of Ukraine ("The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value.") and deaths of children from poor families who cannot get money at last from Ukrainian state budget needed to treat them overseas.
13 See: Druzenko H. CCU on its way to institutional suicide // Zerkalo nedeli, No. 41, November 6, 2010.––P. 6.
14 See: Конституція України з офіційними тлумаченнями Конституційного Суду України. – Харків: Вид-во «Ксилон», 2008. – С. 273.