exit
search
24 september 2019

Political Points of the CPLR for 13–23 September 2019

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to doboni@pravo.org.ua.


 

Draft Law on Amending Article 85 of the Constitution of Ukraine (on the advisory, consultative and other supplementary bodies of the Verkhovna Rada of Ukraine)

1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada the draft Law No. 1028 on Amending Article 85 of the Constitution of Ukraine (on the advisory, consultative and other supplementary bodies of the Verkhovna Rada of Ukraine). The draft law was determined to be urgent.

On September 3, the draft law was sent to the Constitutional Court for review in terms of its compliance with Articles 157, 158 of the Constitution of Ukraine, as required by the constitutional procedure for amending the Constitution.

2. Respective authorities counter-point/argument

According to the Explanatory Note, the possibility of creating advisory, consultative and other supplementary bodies of the Verkhovna Rada of Ukraine within the funds provided in the State Budget of Ukraine for the exercise of its powers is an important guarantee for the effective organization of those bodies and services that should be established by Parliament to support its work.

3. CPLR assessment of the authorities counter-point

In general, this legislative proposal has neither a positive nor a negative context and a substantial content. On the one hand, the Parliament previously created bodies corresponding to the characteristics of "advisory, consultative and other supplementary bodies" and they still exist today, for example, the Institute of Law of the Verkhovna Rada. Funds for its functioning are provided in the State Budget of Ukraine.

It should be noted that a similar power is explicitly provided for in the Constitution for the President of Ukraine while the Parliament does not have it. However, the latter de facto implements this power. In order to ensure the full-fledged implementation of the principle laid down in the provisions of the second part of Article 19 of the Constitution of Ukraine, the initiated draft law may be approved. However, there is no real need to change the Constitution in this part.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Prior to considering this draft law and its potential approval, it is necessary to hold broad discussions with representatives of the expert community. Amendments to the Constitution require an open process of discussion and a mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed by the Legal Reform Commission, recently created for this purpose by the President of Ukraine. The priority areas of work of the Legal Reform Commission, among other things, include preparation and submission to the President of Ukraine of proposals on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of man and citizen, further development of legislation on the organization of the judiciary and the administration of justice, improvement of the legislation on criminal liability and criminal procedural legislation of Ukraine.

It is also noteworthy that the President introduced 6 other draft laws on amending the Constitution. Considering the Constitution as a comprehensive constituent agreement, the stability of constitutional matter, it is advisable to consider a consolidated process of amending the Constitution.

 

Parliament approved early termination of the powers of the entire CEC

1. CPLR expert opinion

On September 13, the people's deputies voted in general for the draft Resolution on early termination of powers of the entire composition of the Central Election Commission. 341 people's deputies supported this decision. During the vote, the “European Solidarity” and “Holos” factions strongly opposed the resolution.

Before this vote, the President of Ukraine introduced a corresponding submission, which was supported by a profile committee and a group of People's Deputies from the “Sluha Narodu” faction and the deputy group “Za Maibutne” registered a Resolution under No. 2127.

2. Respective authorities counter-point/argument

According to the Submission signed by the Chairman of the Committee for the Organization of State Power, Local Self-Government, Regional Development and Urban Development, the grounds for early termination of powers of the entire CEC are “repeated manifestations by the Central Election Commission during the 2019 early elections of people’s deputies of the lack of prudence and even political bias in resolving particular issues within its mandate, which resulted in numerous court cases, where decisions, actions or omissions of the Central Election Commission have been declared unlawful by a court. At the same time, the President of Ukraine points to more than twenty resolutions of the Central Election Commission on the refusal of registration of twenty-eight candidates for deputies of Ukraine, which were canceled by the courts.”

3. CPLR assessment of the authorities counter-point

Article 33-1 of the Law of Ukraine “On the Central Election Commission” provides for the possibility of early termination of powers of the entire composition of the Commission by the Verkhovna Rada of Ukraine upon a motivated submission of the President of Ukraine.

Some profile organizations, in particular, the Committee of Voters of Ukraine and ”Opora” Civic Network, raised a number of questions regarding the motivation of such a submission. Their common conclusion is the following: there were no reasonable grounds for implementing the provisions of Article 33-1 of the Law.

Constitution of Ukraine provides for the individual nature of the appointment and dismissal of members of the CEC. The provisions of Article 33-1 of the Law of Ukraine “On the Central Election Commission” stipulate the collective constitutional responsibility of the CEC, which is not provided for by the Constitution of Ukraine. Such provisions are questionable in terms of constitutionality.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Central Election Commission”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The provisions of Article 33-1 of the Law of Ukraine "On the Central Election Commission" are questionable from the point of view of constitutionality, since they imply the collective constitutional responsibility of the CEC, which is not provided for by the Constitution of Ukraine.

Parliament should exclude Article 33-1 of the Law of Ukraine “On the Central Election Commission” and, when forming the next CEC composition, adhere to the principles of proportional representation of factions within the CEC and the professionalism of the CEC members nominated for appointment.

Pursuant to part three of Article 209 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, the appointment of members of the Central Election Commission shall be by open ballot for each candidate separately. Parliament must strictly comply with parliamentary procedures when selecting the composition of the CEC.

Попередня новина 11 december 2019
Наступна новина 18 september 2019