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

16.03.2016
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.


Analytical Brief by CPLR and RPR
on Conducting the Constitutional Reform (01-15 March 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.

1. Human rights
At present, public debates continue on drafting the 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.
The issue of constitutionality of adoption of constitutional amendments at two non-consecutive sessions of Parliament is currently being reviewed by the Constitutional Court, following a constitutional petition by 51 MPs requesting official interpretation of the Constitution’s Article 155 language “…at the next regular session of the Verkhovna Rada of Ukraine”. On 11 March, the Constitutional Court was reviewing this in a closed plenary session. As of today, the ruling is yet to be issued.
The CPLR and the RPR’s Constitutional Reform Group believe that 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 the Parliament’s one convocation. Article 155 of the Constitution has always been unambiguously interpreted in prior instances of amending the Constitution and in the Constitutional Court’s opinions. 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. Experts point out that the final adoption of the Constitutional amendments should necessarily go together with the package of implementation legislation that will determine, in particular, the order and timing of the establishment of the new courts, selection of judges for them, as well as regulate the issues regarding the Bar, access to the legal profession, competitive selection of the Prosecutor General and the judges of the Constitutional Court.
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”.
Currently, a case concerning the conformity of the Law of Ukraine “On All-Ukrainian Referendum” with the Constitution of Ukraine (constitutionality) is pending before the Constitutional Court. On 19 February 2015, ruling No 5-y/2015 was issued (not released on the Constitutional Court website among the rulings of 2015) on the form of this case. On 24 March 2016, oral hearings are expected to start on consideration of the case.
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.

5. Public involvement in constitutional reform
Nowadays, the role of civil society is enhanced in the constitutional process. Despite the fact that the government is silent, the number of activities, initiated by civil society, on constitutional reform has increased.
Thus, on 12 February 2016, based on the platform of human rights organizations “Human Rights Agenda” draft amendments to the Constitution of Ukraine on human rights were discussed. On 26 February 2016, at the initiative of the partner organizations of the campaign #ConstitutiON, a training for journalists was held on the Constitution, constitutional rights of citizens and limitations of government. On 16 March 2016, a forum “New Social Contract” is scheduled, organized on the basis of the civil society coalition “People’s Constitution”. DRI organized students’ debates on the decentralization reform (on 4 March 2016); “Do We Need to Adopt the Constitution of Ukraine on the Referendum” (on 14 March 2016).

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