Analytical Brief by CPLR and RPR on Conducting the Constitutional Reform (June 2016)

Analytical Brief by CPLR and RPR
on Conducting the Constitutional Reform (June 2016)

The constitutional reform is underway in Ukraine, involving constitutional amendments in 3 areas: human rights, decentralization and reform of the judiciary.

1. Human rights
The Constitutional Commission has so far not prepared a final version of constitutional amendments human and civil rights and freedoms.
Phase of public discussions continues on Draft Law “On Amendments to the Constitution of Ukraine (on Human Rights)”, which has been drafted by the the Working group of the Constitutional Commission on human and civil rights, freedoms and duties. Offsite meetings continue now in the regions to discuss proposed amendments. In future, revised by the Constitutional Commission Draft Law is to be submitted to the Venice Commission. In case of receiving positive opinion of the latter, information campaign is to be conducted. The final step in the work of the Commission is to transfer drafted amendments to the President of Ukraine with a view to their submission to the Parliament.

2. Decentralization
Draft amendments to the Constitution of Ukraine (on decentralization of power) are still awaiting consideration by the Parliament. The President of Ukraine has stated that amendments to the Constitution on decentralization might be adopted after the withdrawal of Russian troops, because the determining factor is the priority of the security preconditions of the Minsk agreements. 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. Despite the Сonstitutional Court Decision of 15 March 2016 No 1-rp/2016, allowing the Parliament to decide on the session where amendments to the Constitution are to be finally adopted, 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
On 2 June, Draft amendments to the Constitution of Ukraine (on reform of the judiciary) have been adopted as a whole by the Parliament. On 24 June, the President of Ukraine has signed them. The Law of Ukraine “On Amending the Constitution (on reform of the judiciary)” has been officially published on 29 June. Moreover, on 2 June, violating the Rules of procedure of the Verkhovna Rada of Ukraine, the the Parliament has adopted implementing legislation, i.e. has a new version of the Law of Ukraine “On Judicial System and Status of Judges”, thich has only been submitted to the Parliament on 30 May (the Draft was registered under No 4734).
The CPLR and the RPR’s Constitutional Reform Group note that constitutional amendments contain a lot of positive changes and novels, in particular, creation and liquidation of courts; deciding on career judges and their dismissal by the High Council of Justice, which will consist of more than half of judges elected by the judges; introduction of termless appointment of judges; introduction of assessment of each judge on the subject of competence, integrity, ethical behavior, and mechanism of involvement of a judge in the competition or dismissal/transfer in case of liquidation or reorganization of the court in which he/she works.
Furthermore, the experts condemn failure to follow procedures for adopting the amendments to the Law of Ukraine “On Judicial System and Status of Judges”. Consequently, progressive ideas in the amendments to the Constitution and in the Law of Ukraine “On Judicial System and Status of Judges” might be mitigated. Negative situation in the judicial system can be only preserved under the guise of formal “requirements of the public”, “creating new courts and upgrading of the judiciary”.
The experts call for amendments to the Law of Ukraine “On Judicial System and Status of Judges” to ensure effective judicial renewal, as well as transparent and impartial selection of judges to the new courts with a decisive voice of the public regarding the integrity of judges; to adopt other implementing legislation, i.e. a special law on Higher anti-corruption court, which will start this trial without delay and will ensure the independence of the judges of this court. The Law of Ukraine “On High Council of Justice” is to be amended, without which a district court judge cannot be brought to disciplinary responsibility, including dismissal, after the entry into force of the new the Law of Ukraine “On Judicial System and Status of Judges”. A new version of the of Ukraine “On Constitutional Court of Ukraine” and amendments to procedural law are also to be adopted (please see RPR Declaration).
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. The Draft addresses the issue of the immunity of the members of Parliament and judges. The issue of judicial immunity is regulated in a constitutional amendments on justice from 2 June. Therefore, the Draft is not relevant in this part. Under Article 159 of the Basic Law, the Verkhovna Rada within the term of office shall not modify twice the same provisions of the Constitution of Ukraine.
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.
For today, the Law of Ukraine “On All-Ukrainian Referendum” of 6 November 2012, which was adopted in violation of constitutional constitutional procedures, 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. 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 for full consideration.
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.