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

31.05.2016
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. Furthermore, a Draft Law No. 4357 “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” was registered in the Parliament. It is not the result of the Constitutional Commission's work. Amendments to the Article 78 of the Constitution have been presented due to a temporary political interest.


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

The constitutional reform is underway in Ukraine, involving constitutional amendments in 3 areas: human rights, decentralization and reform of the judiciary.
Furthermore, a Draft Law No. 4357 “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” was registered in the Parliament. The Draft has been submitted by 169 MPs. It is not the result of the Constitutional Commission’s work, which is a consultative body of the President for conducting the constitutional reform. The Draft provides for a change in one aspect, allowing MPs to combine the representative mandate with performing the functions of a Prime Minister of Ukraine or 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 concerning strengthening of parliamentarianism in the context of improvement of the form of governance. The CPLR and the RPR’s Constitutional Reform Group believe that the 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 the balance of powers within a mixed form of government, abolition of imperative mandate, improvement of legislative procedures, inter alia.

1. Human rights
The Constitutional Commission has so far not prepared a final version of constitutional amendments concerning human and civil rights and freedoms. Inactive phase of public discussions on drafting constitutional amendments in this area, unreasonably stretched in time, continues.

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 an Opinion on 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 Constitutional 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
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. The Verkhovna Rada Chairperson on the initiative and with the support of the President of Ukraine has estimated that the date of consideration of the drafts on amendments to the Constitution will be 2 June. In addition, the Secretary General of the Council of Europe expressed support to Ukraine on the path of reforms and encouraged adoption of the draft amendments to the Constitution relating to judiciary as decisive and significant step to successful reform.
The CPLR and the RPR’s Constitutional Reform Group believe that constitutional reform in the judiciary 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 30 May, the President of Ukraine has submitted a new version of the Law of Ukraine “On Judicial System and Status of Judges” (the draft was registered under No 4734) to the Parliament. The draft does not meet the expectations of society on conducting full-fledged judicial reform, upgrading and ensuring independence of the judiciary.
At the same time, the CPLR and RPR experts approve the adoption of the constitutional amendments in the sphere of the judiciary, accompanied by the package of legislation that would enable implementation of core legislative provisions, aimed to determine, in particular, the manner and timeframe for establishment of the new courts, selection of judges, as well as to regulate the issues regarding the bar, access to the legal profession, and competitive selection of the Prosecutor General and the Constitutional Court judges. The experts draw attention to the absence of implementation of other statutes and the need to review a new version of the Law of Ukraine “On Judicial System and Status of Judges” in accordance with legislative procedure stipulated in the Constitution and the Rules of Procedure of the Verkhovna Rada of Ukraine, with a view to finalizing it in the aspect of ensuring the judicial reform to be successful for the society.
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 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.
For today, the Law of Ukraine “On All-Ukrainian Referendum” of 6 November 2012, which was adopted in violation of 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 full conformity of the Law of Ukraine “On All-Ukrainian Referendum” with the Constitution of Ukraine (constitutionality), is still being reviewed by the Constitutional Court.
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 in place a democratic legal regulation of the national referendum institution and repeal the unconstitutional procedure for amending the Constitution.