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Analytical Brief on Conducting Constitutional Reform (January 2016)

31.01.2016
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. The draft amendments to the Constitution of Ukraine (on decentralization of powers) focusing on administrative and territorial reform and local government reform originated with the Presidential Administration, and were approved by the 8th convocation of the Ukrainian Parliament. The draft amendments to the Constitution of Ukraine (on reform of the judiciary) were also submitted to the Parliament by the President of Ukraine. The Constitutional Court ruled compliance of these amendments with the Constitution of Ukraine (Articles 157 and 158). However, it has not been considered by the Parliament yet and needs re-consideration by the Constitutional Court of Ukraine.


Analytical Brief
on Conducting Constitutional Reform (January 2016)

The constitutional reform is underway in Ukraine, involving constitutional amendments in 3 areas: human rights, decentralization and reform of the judiciary. The draft amendments to the Constitution of Ukraine (on decentralization of powers) focusing on administrative and territorial reform and local government reform originated with the Presidential Administration, and were approved by the 8th convocation of the Ukrainian Parliament. The draft amendments to the Constitution of Ukraine (on reform of the judiciary) were also submitted to the Parliament by the President of Ukraine. The Constitutional Court ruled compliance of these amendments with the Constitution of Ukraine (Articles 157 and 158). However, it has not been considered by the Parliament yet and needs re-consideration by the Constitutional Court of Ukraine.

1. Human rights
At present, public debates continue on protection of fundamental human rights and freedoms as enshrined in the Constitution. The aim of these deliberations is to develop a coherent version of the draft amendments to the Constitution that deal with human rights issues. Constitutional reform in the area of human rights, freedoms and duties follows a participatory process and duly involves citizens into the constitution-building process.

2. Decentralization
The Parliament Resolution “On Amendments to the Schedule for the Third Session of the Verkhovna Rada of the 8th Convocation (No 907-VIII) extended the aforementioned session through 2 February 2016.
The CPLR and the RPR’s Constitutional Reform Group believe that the adopted Resolution is in compliance with the Constitution and the Parliament’s rules and procedures. Its objective is to extend the time period needed to consider and adopt the draft amendments to the Constitution of Ukraine (on decentralization of powers) within the current Parliament’s third session with 300 MP votes. As of recent, the Parliament was on vacation, as plenary sessions were not being conducted.
On 22 January, the Draft Resolution on revising the draft amendments to the Constitution of Ukraine (on decentralization of powers), submitted by MPs from “Samopomich”, was registered under No 3805. This motioned Resolution proposes to rescind the Parliament's prior approval of the draft amendments to the Constitution of Ukraine (on decentralization of power).
On 19 January, the Constitutional Court of Ukraine received a submission by 51 MPs requesting official interpretation of the Constitution’s Article 155 language stating that a decision shall be made “…at the next regular session of the Verkhovna Rada of Ukraine”. On 26 January, the Constitutional Court commenced the proceedings, and on 29 January, the Constitutional Court is scheduled to review this case via a written hearing procedure. However, on 28 January, the Parliament already adopted the Law of Ukraine “On Amendments to Article 149 of  Rules of procedure of the Verkhovna Rada of Ukraine”, with 229 MP votes in favor. According to these amendments, the following sentence is being added to the mentioned article:
“If the draft amendments to the Constitution of Ukraine (that, in the opinion of the Constitutional Court of Ukraine, meet the requirements of Articles 157 and 158 of the Constitution of Ukraine) have been previously approved by the Verkhovna Rada of Ukraine and were not considered at the next regular session after prior approval, such draft shall be considered by the Verkhovna Rada of Ukraine during the regular session that immediately follows”.
The CPLR and the RPR’s Constitutional Reform Group believe that the Constitution’s language is unambiguous. Article 155 of the Constitution of Ukraine clearly establishes the time-frame for amending the Constitution: it shall be done during two consecutive regular sessions of the Parliament’s one convocation. Article 155 of the Constitution has always been unambiguously interpreted in prior practice 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 nature of its session … The issue of amending the Constitution of Ukraine shall be consistently 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 motivation part).

3. Judicial Reform
On 22 January, the Constitutional Court of Ukraine officially released its Opinion in response to the Verkhovna Rada’s submission regarding the compliance of draft amendments to the Constitution of Ukraine (on reform of the judiciary) with the Articles 157 and 158 of the Constitution of Ukraine. The court found the provisions of this draft to be in compliance with the mentioned Articles. Nevertheless, on 26 January, the President submitted a revised version of the draft to the Parliament. The Parliament’s right to issue a vote of no confidence for the Prosecutor General of Ukraine was reintroduced. On 28 January, the Parliament approved this draft with 291 MP votes in favor and submitted it again to the Constitutional Court.
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 meet many other recommendations.

4. The procedure for amending the Constitution
On 18 January, the Parliament registered the draft Law “On the Procedure for Drafting the New Constitution of Ukraine” (No 3781). According to media reports, the Verkhovna Rada’s Speaker Volodymyr Hroisman instructed the Secretariat of the Verkhovna Rada of Ukraine not to register the draft, but instead to forward it to the Committee on Legal Policy and Justice to “make recommendations as to the existence of grounds for registration”. In connection with this, the MPs called upon the Secretariat to register the draft immediately, so that the standard review procedures in the relevant Parliamentary Committees can be initiated. The draft was registered after receiving a no-objections letter from the Committee on Legal Policy and Justice.
The Constitution of Ukraine, similarly to most European constitutions, establishes the principle of constitutional stability. It contains no clear provisions on the adoption procedure for a new Constitution. 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.

Download the file “Amending the Constitution Procedure in Schemes”

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