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31 march 2016

Analytical Brief by CPLR and RPR on Conducting the Constitutional Reform (16-31 March 2016)

Analytical Brief by CPLR and RPR
on Conducting the Constitutional Reform (16-31 March 2016)

The constitutional reform is underway in Ukraine, involving constitutional amendments in three areas: human rights, decentralization and justice reform. Unfortunately, so far the process for amending the Constitution with respect to ensuring the balance of powers has not been initiated.

1. Human rights
At present, public discussions continue on drafting the constitutional amendments. In March, work intensity in this area has decreased. In general, constitutional reform in the area of human rights, freedoms and duties follows a transparent process and adequately engages the public in the constitution-making process.

2. Decentralization
Draft amendments to the Constitution of Ukraine (on decentralization of power) are still awaiting consideration by Parliament. As a reminder, the draft amendments were submitted to Parliament by the President and provisionally approved at the second session of Parliament’s 8th Convocation on 31 August 2015, and according to Resolution No 974-VIII “On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation” were placed on Parliament’s agenda.
The issue of constitutionality of adopting the constitutional amendments at two non-consecutive sessions of Parliament has been reviewed by the Constitutional Court, in response to 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 18 March, the Constitutional Court officially issued the Opinion in this case:
“As to ... the constitutional procedure for adopting the law on amendments to the Constitution, if the draft has been provisionally approved by a majority of the constitutional membership of the Verkhovna Rada of Ukraine, but was not considered at the regular session of the Verkhovna Rada of Ukraine, the language ‘at the next regular session of the Verkhovna Rada of Ukraine’, as used in Article 155 of the Constitution of Ukraine, in accordance with its purposes and in conjunction with the provisions of Article 8 section 2, Article 82 section 1, Article 83 sections 1, 2, 5, Article 84 section 2, Article 158 section 1 of the Basic Law of Ukraine, is to be interpreted so that the next regular session of the Verkhovna Rada of Ukraine shall mean the next session of Parliament that is held under the provisions of Chapter XIII “Amendments to the Constitution of Ukraine” of the Basic Law of Ukraine and the Procedural Regulations of the Verkhovna Rada of Ukraine, and in which the draft law on amendments to the Constitution of Ukraine that was provisionally approved by a majority of the constitutional membership of the Verkhovna Rada of Ukraine shall be deemed adopted as the law if it is voted for by not less than two-thirds of the constitutional membership of the Verkhovna Rada of Ukraine.”.
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 mentioned Opinion of the Constitutional Court gave rise to significant criticism within legal community; and it also comes with six dissenting opinions by the Constitutional Court judges. 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 justice) are currently being reviewed by Parliament’s specialized committee. As a reminder, on 2 February 2016, Parliament provisionally approved and placed them on the agenda of the fourth session.
Constitutional reform in the area of justice is necessary to comply with the recommendations of the Council of Europe in the judicial sphere. Without these amendments, it is impossible, among others, 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. Further, the CPLR and RPR experts insist that the adoption of the constitutional amendments must necessarily be accompanied by the package of implementing legislation that will determine, in particular, the manner and timeframe for the establishment of new courts, selection of judges for them, as well as regulate the issues regarding the bar, access to the legal profession, and competitive selection of the Prosecutor General and the Constitutional Court judges.
Draft amendments to the Constitution of Ukraine (on the immunity of members of Parliament and judges) No. 1776 are still pending before Parliament.
As a reminder, under Parliament Resolution No 974-VIII “On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation” of 3 February 2016, they were placed on the agenda of Parliament.
The issue of judicial immunity is regulated by the comprehensive draft amendments on justice.
The CPLR and the RPR’s Constitutional Reform Group experts believe that parliamentary immunity needs to be limited, but it should not be 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 Basic 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, remains in force. The law sets forth an unconstitutional procedure for amending the Constitution of Ukraine and provides for a manipulative procedure for conducting a national referendum. On 26 February 2014, Kyiv Appellate Administrative Court in its resolution deemed illegal the acts and inaction by Adam Martyniuk, the first Deputy Chairman of the Verkhovna Rada’s 6th convocation, committed in the course of consideration of the draft law No. 6278 on all-Ukrainian referendum (which later became Law No 5475-VI) during the morning plenary session of the eleventh Parliamentary session on 6 November 2012 (see http://www.reyestr.court.gov.ua/Review/37535704).
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 24 March 2016, oral hearings started in this case. The resolution of Kyiv Appellate Administrative Court of 26 February 2014, which has entered into force, has the effect of res judicata for the Constitutional Court.
Parliament’s specialized 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 has been placed on the agenda of Parliament by 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 experts call upon 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. Engaging the public in constitutional reform
At present, there is increased interest towards the constitutional process on the part of civil society. Despite the authorities’ pause in the area of constitutional reform, a number of activities initiated by civil society have occurred. E.g., on 16 March 2016, a forum “New Social Contract”, organized through the civil society coalition “People’s Constitution”, took place. The forum supports the idea of a new constituent process in Ukraine, which envisions adoption of a new Constitution prepared by the Constitutional Assembly (a special body elected by the Ukrainian people) at the all-Ukrainian referendum.