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Analytical Brief by CPLR and RPR on Conducting the Constitutional Reform (01-15 April 2016)

15.04.2016
Constitutional order /
Constitutional reform

The constitutional reform is underway in Ukraine, involving constitutional amendments in 3 areas: human rights, decentralization and reform of the judiciary. Unfortunately, so far the amending process in terms of ensuring the balance of powers has not been initiated. However, on 1 April, a Draft law “On amendments to article 78 of the Constitution of Ukraine on creating preconditions for stable and effective work of the Cabinet of Ministers of Ukraine” No 4357 was registered in the Parliament. 


Analytical Brief by CPLR and RPR
on Conducting the Constitutional Reform (01-15 April 2016)

The constitutional reform is underway in Ukraine, involving constitutional amendments in 3 areas: human rights, decentralization and reform of the judiciary. Unfortunately, so far the amending process in terms of ensuring the balance of powers has not been initiated.
However, on 1 April, a Draft law “On amendments to article 78 of the Constitution of Ukraine on creating preconditions for stable and effective work of the Cabinet of Ministers of Ukraine” No 4357 was registered in the Parliament. The Draft has been submitted by 169 MPs, and is not the result of the Constitutional Commission’s work, created as a consultative body of the President to conduct a constitutional reform. The Draft provides point shift, allowing MPs to combine the mandate of executive’s activities as the Prime Minister of Ukraine, members of the Cabinet of Ministers of Ukraine. Amendments to the article 78 of the Constitution have been presented due to a temporary political interest, and are not based on an integrated approach to draft constitutional amendments on strengthening of parliamentarism concerning forms of government improvement.
The CPLR and the RPR’s Constitutional Reform Group believe that strengthening of parliamentary system is to be based on comprehensive amendments to the sections “Verkhovna Rada of Ukraine”, “President of Ukraine”, “Cabinet of Ministers of Ukraine”, and “Constitutional Court of Ukraine” of the Constitution. The reform should concern balance of powers within a mixed form of government, abolition of imperative mandate, improvement of legislative procedures, et al.

1. Human rights
At present, public debates continue on drafting the mechanism of implementing the laws on constitutional amendments. Constitutional reform in the area of human rights, freedoms and duties follows a transparent process and adequately engages the public in the constitution-building process.

2. Decentralization
Draft amendments to the Constitution of Ukraine (on decentralization of power) are still awaiting consideration by the Parliament. As a reminder, the draft amendments were submitted to Parliament by the President and provisionally approved by the Parliament of the 8th Convocation on 31 August 2015 during the second session, and according to the Resolution No 974-VIII “On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation” they were added to the Parliament’s agenda. On 18 March, the Constitutional Court officially issued the Opinion in this case, recognizing the compliance of the proposed amendments with the articles 157, 158 of the Constitution.
The CPLR and the RPR’s Constitutional Reform Group experts warn against violating the constitutional procedure during adoption of amendments to the Constitution on decentralization and justice. The experts maintain that under Article 155 of the Constitution, two consecutive regular sessions of Parliament are needed. The language of the Constitution is unambiguous. Article 155 of the Constitution of Ukraine clearly establishes the timeframe for amending the Constitution: it must occur during two consecutive sessions of Parliament. The experts insist on prior instances of amending the Constitution and the Constitutional Court’s opinions, namely: the Constitutional Court, in its Opinion of 17 October 2002 (case No 1-6/2002), observed that “the Constitution of Ukraine connects certain characteristics of the Verkhovna Rada’s powers with the session-based nature of its work … The issue of amending the Constitution of Ukraine must be considered and resolved during two consecutive sessions of the Verkhovna Rada of Ukraine (Article 155 of the Constitution of Ukraine)” (section 3 of the Opinion’s reasoning part).

3. Judicial Reform
Draft amendments to the Constitution of Ukraine (on reform of the judiciary) are currently being reviewed by the relevant Committee. As a reminder, on 2 February 2016, the Parliament provisionally approved and added them to the agenda of the fourth session.
Constitutional reform in the area of justice is necessary for the implementation of the recommendations of the Council of Europe in the judicial sphere. Without these changes, it is impossible, in particular, to ensure functioning of a body, independent of the executive or the legislature, that would be responsible for appointments and careers of judges, as well as to comply with many other recommendations.
On 4 April, a round table was held on the issue “The next reform is the reform of the Constitutional Court of Ukraine” on the reform of the Constitutional Court. The experts have agreed that the main disadvantage of the proposed constitutional amendments is absence of procedure for formation of the Constitutional Court and of public discussion on candidates for the post of the Constitutional Court judges.
The draft amendments No 1776 to the Constitution of Ukraine (on the immunity of the members of Parliament and judges) are still awaiting consideration by the Parliament.
As a reminder, the Parliament Resolution No 974-VIII “On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation” of 3 February 2016 added them to the agenda of the Parliament.
The issue of judicial immunity is regulated in a comprehensive draft law on justice.
The CPLR and the RPR’s Constitutional Reform Group believe that parliamentary immunity needs to be limited, but not lifted entirely, as envisioned by the draft law No 1776. Parliamentary immunity is an essential feature of parliamentarianism.

4. The procedure for amending the Constitution
Draft Law No 3781 “On the Procedure for Drafting the New Constitution of Ukraine” is being reviewed by the Committee on legal policy and justice.
The Constitution of Ukraine, similarly to most European constitutions, draws on the principle of constitutional stability and contains no clear provisions on the adoption procedure for a new Fundamental Law. However, the Ukrainian people are entitled to determine the constitutional order through constitutionally enshrined principles of the rule of law and the people’s sovereignty.
As of February 2016, the Law of Ukraine “On All-Ukrainian Referendum” of 6 November 2012, which was adopted in violation of constitutional procedures and in the interests of V. Yanukovych, remains valid. The law sets forth an unconstitutional procedure for amending the Constitution of Ukraine and provides for a manipulative procedure for conducting a national referendum.
The relevant Committee is also reviewing a new version of the Law of Ukraine No 2145а “On All-Ukrainian Referendum”, drafted by leading independent experts in the field of electoral law, which was added to the agenda of the Parliament by the Parliament Resolution No 974-VIII “On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation”.
The CPLR and the RPR’s Constitutional Reform Group call on the Parliament to urgently put into place a democratic legal regulation of the national referendum institution and repeal the unconstitutional procedure for amending the Constitution.