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Opinion by a group of researchers and public experts on the Draft Law on Amendments to the Constitution of Ukraine No. 4178а dated June 26, 2014

15.07.2014
Constitutional order /
Constitutional reform

The Draft Law “On Amendments to the Constitution of Ukraine” No. 4178а (the Draft Law) was submitted to the Verkhovna Rada on June 26, 2014, by the President of Ukraine, who defined it as “urgent.” On July 2, 2014, an updated version of the draft, with two provisions added thereto, was registered, substituting for the previous one.


TABLE OF CONTENTS

1. Introductory Remarks

The Draft Law “On Amendments to the Constitution of Ukraine” No. 4178а (the Draft Law) was submitted to the Verkhovna Rada on June 26, 2014, by the President of Ukraine, who defined it as “urgent.” On July 2, 2014, an updated version of the draft, with two provisions added thereto, was registered, substituting for the previous one.

The Draft Law provides for amendments to twenty two Articles and incorporation of an extra Article within eight Chapters of the Constitution of Ukraine: Chapter IV “The Verkhovna Rada of Ukraine” (Articles 81, 82, 83, 85, 88, 90), V “The President of Ukraine” (Articles 106, 107, 1071), VI “The Cabinet of Ministers of Ukraine. Other Executive Authorities” (Articles 114, 118, 119), VII “Public Prosecution” (Articles 121, 122), IX “Territorial Structure of Ukraine» (Articles 132, 133), X “The Autonomous Republic of Crimea” (Article 139), XI “Local Self-Government” (Articles 140, 141, 142, 143, 144), and XII “The Constitutional Court f Ukraine” (Article 151).

The fact that the President submitted a draft law with proposals for comprehensive constitutionalamendments deserves a positive evaluation. There is a number of reasons justifying constitutional reform in Ukraine.

At the same time, it should be emphasized that the constitutional reform should fully comply with criteria of legitimacy, transparency, publicity and competence in legal issues. The process of constitutional reform must be in line with the nature of the Constitution as a fundamental social contract. Based on lessons learned from Ukraine’s constitutional development in the past ten years and on current political background of the constitutional reform, it should be particularly stressed that it is unacceptable to sacrifice the quality of the Constitution for the sake of achieving momentary political goals or arrangements.

This opinion has been prepared on the basis of analysis for compliance of the Draft Law with the above criteria.

2. Draft Law Preparation Process

President Petro Poroshenko submitted the Draft Law to the Verkhovna Rada less than three weeks after the day of his inauguration. Political conditions under which constitutional reform has to be prepared are extremely complicated. Intentions to provide the beginning of hearing of constitutional amendments before closing of the 4th session of the Verkhovna Rada of seventh convocation are well-reasoned and worthy of support. However, the necessity for fast implementation of constitutional reform can be neither a reason nor a justification for its inadequate quality. The proper process of constitutional reform must be observed under any circumstances.

Currently it shall be admitted that the process of Draft Law preparation is characterized by lack of transparency, publicity or social debate. Before the moment of submission of the Draft Law to the Verkhovna Rada, neither the text of the Draft Law nor its concept was available to the public. Therefore, participants in the social dialogue had no opportunity to meaningfully discuss the conceptual changes or to present their own proposals.

Society is still unaware of who the author of the text of the Draft Law is. The President had not set up a Working Group or a Commission on preparation of the draft. Experience of well-established democracies shows that texts of constitutions or of amendments thereto must be drafted by reputable and impartial constitutional law experts. This guarantees preparation of a balanced and reasonable draft, and is one of key prerequisites for social confidence and support for constitutional reform.

Need for scientific and expert work on the Draft Law follows from the provisions of the Verkhovna Rada Regulations. Thus, Part eight of Article 143 provides for special requirements regarding an explanatory note to a draft law on amending the Constitution of Ukraine. Besides including some general provisions, the explanatory note must elucidate a number of additional questions specified in paragraphs 2–10 and 14 of Part two of Article 145 of the Regulations. One of such questions is: Do the scientists and experts have any doubts as to whether the draft law meets the requirements of Articles 157 and 158 of the Constitution (paragraph 7 of Part two of Article 145 of the Regulations)? The explanatory note provides no answer to this question, since the community of scientists and experts simply had no opportunity to form their view on the Draft Law prior to its submission.

Apparently, in response to the requirement of paragraph 10 of Part two of Article 145 of the Regulations, the explanatory note contains the following provision: “The Draft Law will not require the adoption of any proposals or amendments to it, including any editorial adjustments.” Unfortunately, the below conclusions regarding the Draft Law, in particular regarding legal technique, cast doubts on that statement. The fact that a revised version of the Draft Law was submitted just six days after submission of the initial version makes this statement clearly untrue.

Lack of social dialogue within preparation of the Draft Law also led to insufficient understanding of strategy and scope of the reform. Thus, the Draft Law envisages no amendments to address a number of topical issues (see Section 4 of the Opinion). Hence it is unclear what the Draft Law actually is – a proposal for the first stage of the reform which is meant to respond to the most pressing challenges or a reform that the President believes to be a holistic one.

Situation where neither society nor the expert community has been engaged in the constitutional reform and when there is not even enough information for them to form their view on its development is unacceptable and must be changed.

3. Aim of the Draft Law

3.1. Decentralization: administrative-territorial structure and local self-government

(a) positive aspect

Amendments proposed in the Draft Law are sufficient for creating a constitutional basis for decentralization. This is undoubtedly a great benefit of the Draft Law.

In particular:

a) a three-level system of administrative-territorial units is being laid down: regions, districts, communities – Article 133. This makes it possible to conduct an administrative-territorial reform at the level of communities and districts;

b) executive bodies of district and region councils are being established – Article 140;

c) performance of functions of local self-government bodies by state executive bodies is being abolished – Articles 118, 119, 140 (however, total abolition of local state administrations appears to be a negative development – see subsection 2 below).

(b) negative aspect

The Draft Law contains a number of drawbacks in decentralization provisions, some of which may lead to essential problems in the functioning of public authorities in Ukraine.

In particular:

a) the title of Chapter IX of the Constitution of Ukraine, “Territorial Structure” has not been changed to “Administrative-Territorial Structure,” as suggested by its content, by general logic and terminology of the proposed changes. Terminological replacement is also necessary in paragraph 13 of Part one of Article 92 of the Constitution of Ukraine;

b) in proposed version of Article 132, it should be specified that administrative-territorial structure should be based on the principles of unity of state power and integrity of state territory. This Article should also be analyzed from the viewpoint of whether or not all the principles listed there pertain to the administrative-territorial structure;

c) Part two of Article 133 contains the following provision: “The conditions and procedure for the creation, abolishment, change of boundaries, naming and renaming of administrative-territorial units and localities within the regions shall be determined by law.” This wording of the provision can be interpreted in the sense that boundaries of regions may not be determined by law. This merely makes it harder to identify authority empowered to change boundaries of    region and procedure for doing so. This seems to be an omission in the current Constitution. There is an opinion according to which this issue can be resolved by the Verkhovna Rada pursuant to paragraph 13 of Part one of Article 92 of the Constitution.

Constitutional changes should make this issue unambiguous. Therefore, the words “within the regions” must be removed from the proposed text. Furthermore, paragraph 29 of Part one of Article 85 should be amended by adding that the Verkhovna Rada shall be empowered to change the boundaries of regions (as well), not just of districts and cities/towns;

d) the formula of “issues of local character,” which is used in Part one of Article 140 in order to outline the range of competence of local self-government, lacks substantive certainty. It fails to provide a clear answer to the question of what actually belongs to the category of issues “of local character.” It is deemed expedient to bring the provision on local self-government competence in compliance with the European Charter of Local Self-Government (having regard to Ukrainian realities) and with the principle established in Part two of Article 19 of the Constitution of Ukraine;

e) in Parts three and four of Article 140, not only the district and region councils, but also their executive bodies are referred to as authorities representing common interests of communities. This approach is misleading.The councils’ executive bodies aren`t and shouldn’t be authorities of representative nature;

f) Article 141 provides that the head of a district/region council shall also be the head of the executivebody of, respectively, the district/region council. This approach leads to some warnings. It appears that this is merely an extrapolation of the provision that a village, settlement, or city/town mayor must also be the head of the council’s executive body. However, the nature of a village, settlement, or city/town mayor differs from that of the head of a district or region council. A mayor is elected by local community at general direct elections. Alternatively, the head of a district or region council is elected by respective council among the deputies. The nature of district and region councils also differs from that of a community council. They represent common interests of communities; therefore, the procedure for appointment of officials should meet the goal of achieving a balance of interests.

This is a discriminatory approach, since it also makes it impossible to appoint as the head of district/region council’s executive committee someone who is not a deputy of the council.

Moreover, combining functions of head of a district or region council with the function of head of an executive committee enhances the risk of excessive concentration of power in the region in the hands of one person, which may generate pressure on local self-government as well as lead to a confrontation with the Cabinet of Ministers (the Government). Election by a district/region council of different persons to the positions of head of the council and head of its executive body will promote further development of local self-government;

g) Part one of Article 142 raises a worrying question regarding the definition of subjects and objects of property. It appears that it more proper to use the term of “land plots” instead of “land.” It is unclear what is meant by the formulation of “objects of property of district and region councils.” Generally, the idea of defining district and region councils as subjects of property (owners) looks questionable;

h) the Draft Law contains a proposal to establish regional self-government, inasmuch as executive committees of region councils are to be established. This is a resolute step, which, as noted above, deserves a positive evaluation. However, regarding the time period for establishing regional self-government, it (regional self-government) must not be introduced until a capable local self-government has been established. The logic and step-by-step pattern of the public authority reform must be observed, otherwise the consequences may be unpredictable and highly destructive. Unfortunately, the Draft Law fails to reflect that logic and that step-by-step pattern. According to the Transitional Provisions, all of the provisions aimed at power decentralization are to take effect simultaneously, on the day of inauguration of the village, settlement, city/town mayors and local councils which will be elected at the next regular elections.

3.2.   Liquidation of local state administrations and establishing the institute of Presidential Representatives in regions and districts

The Draft Law provides for total liquidation of local state administrations. Instead of them, it is proposed to introduce the institute of Representatives of the President of Ukraine, who will be appointed personally by the President and who will operate in regions and districts. Pursuant to Article 1071, “In the respective territory, the Presidential Representatives shall:

1) supervise compliance of acts of local self-government bodies and of territorial bodies of central executive bodies with the Constitution and laws of Ukraine;

2) coordinate the interaction between territorial bodies of central executive bodies;

3) direct and organize activities of all territorial bodies of central executive bodies and local self-government bodies under conditions of state of emergency or martial law;

4) exercise other powers provided for by the Constitution and laws of Ukraine.”

The exercise of such powers is truly necessary for proper functioning of local self-government and for supporting performance of functions of the state at the local level. However, the model ofbodies responsible for the performance of these functions seems to be inadequate to these functions; it is illogical and is likely to create essential problems for public authority functioning.

Thus, according to this model, the Cabinet of Ministers has absolutely no way to influence appointment of the Presidential Representatives or their activities. This means that the Cabinet of Ministers cannotbe responsible for ensuring observance of the Constitution and laws in the functioning of local self-governmentbodies and for implementing state policies within the entire territory of the country (which is one of its functions, pursuant to paragraph 1 of Article 116 of the Constitution). Alternatively, the Cabinet of Ministers will have to create in districts and regions its territorial branches (bodies) ofnearly all the central executive bodies, which would be irrational and ineffective.

Reasonable ground of the provision according to which the Representatives appointed by the President must perform the functions of coordinating and directing activities of territorial bodies of central executive bodies appears to be highly questionable.

Officials entitled to exercise the abovementioned powers must be appointed and dismissed with participation of the Cabinet of Ministers. In addition, these officials must be answerable, accountable, and subordinated to the Cabinet of Ministers.

Therefore, it appears to be much more reasonable to preserve the institute of local state administrations while changing their functions to the ones specified above.

In addition, there is a reservation to be made about the formulation of the very functions of these bodies, which are empowered to provide for the performance of the state’s functions at local level. Paragraph 1 of Part two of the proposed Article 1071 provides for the function of supervision over compliance of acts of local self-government bodies with the Constitution and laws of Ukraine. Such a formulation carries the risk of being interpreted too widely and contains no safeguards against its abuse.

In fact, however, this function should involve supervising observance by local self-government bodies over the limits of their powers established by the Constitution and laws of Ukraine. In other words, what the local state administrations (or, using the Draft Law terminology, Presidential Representatives) must supervise is whether local self-government bodies stay within the limits of their powers (functional supervision). Appealing against the content of an act of a local self-government body that was passed within the limits of its competence should be the prerogative not of state bodies but of the person whose rights and interests are affected by this act.

Nor can we agree with the mechanisms proposed in the Draft Law for ensuring observance of the Constitution and laws by local self-government bodies. Pursuant to the proposed amendments to Articles 107, 144, and 151, the President of Ukraine, acting upon a submission of the Presidential Representative from a particular region, can suspend a decision of the Verkhovna Rada of the Autonomous Republic of Crimea or of a local self-government body for reasons of non-compliance with the Constitution of Ukraine while simultaneously appealing its constitutionality to the Constitutional Court of Ukraine; should the Constitutional Court establish that the decision violates the Constitution, the President of Ukraine can terminate the powers of the Verkhovna Rada of the Autonomous Republic of Crimea or of the local self-government body that passed the decision in question; decisions of local self-government bodies can be suspended for reasons of non-compliance with the laws of Ukraine by Representatives of the President of Ukraine from a respective region or district, with simultaneous filing of an appeal to a court.

In this context, it should be emphasized in the first place that observance by local self-government bodies of the limits of their competence established by the Constitution and laws of Ukraine should be heard in an administrative proceeding. The proposed resolution of such issues in a constitutional proceeding is highly questionable.

The fact that the President can terminate the powers of a local self-government body only if the Constitutional Court finds its decision unconstitutional appears to be an ineffective and inadequate mechanism for ensuring observance by local self-government bodies of the limits of their competence. It follows from the proposed provisions that systemic violations of laws by a local self-government body may not be a ground for terminating its powers (it should be noted here that the Constitution outlines the limits of competence of local self-government bodies in very general terms; a specific list of powers is established by law). Taking into account the number of local self-government bodies – there are in fact thousands of them, it looks doubtful whether the Constitutional Court will be able to ensure due and timely consideration of such sort of cases. This additional function may have an adverse effect on the Constitutional Court’s capacity in general.

On the one hand, the constitutional mechanisms for ensuring observance by local self-government bodies of the limits of their competence established by the Constitution and laws of Ukraine should be sufficient for timely detection of violations these bodies have committed and to effectively stop them; on the other hand, the mechanisms must be formulated in such a way that government bodies would not have been able to use them for restricting rights of local self-government or for other kinds of abuse. In this part, the Draft Law is extremely poor thought-out and needs to be reworked considerably.

 

3.3. Parliamentary coalition and procedure for the formation of the Cabinet of Ministers

Amendments to Article 83 of the Constitution envisage formation in the Verkhovna Rada of a parliamentary coalition instead of a coalition of deputies’ factions, as provided by the current Constitution. The Draft Law also contains a proposal for a new provision, which guarantees activities of parliamentary opposition in the Verkhovna Rada.

Pursuant to the Draft Law, the parliamentary coalition submits to the President a proposal nominating a candidate for the post of the Prime Minister. Not later than on the fifteenth day after receiving such proposal, the President makes a submission to the Verkhovna Rada on the appointment of the Prime Minister. A submission on the appointment of other members of the Cabinet of Ministers is filed with the Verkhovna Rada by the Prime Minister. A submission by the Prime Minister seeking the appointment by the Verkhovna Rada of the Minister of Defense and the Minister of Foreign Affairs must be agreed with the President.

Making a general assessment of the changes concerning the coalition in the Verkhovna Rada and the procedure for the formation of the Cabinet of Ministers, one can describe them as steps in the right direction. That is, in this aspect the proposed regulation appears to be better than the one currently in force. However, it is still far from optimal and hence fails to resolve the existing problems.

Thus, it is necessary to completely remove from the Constitution the provisions on coalitionin the Verkhovna Rada. These provisions became part of the Constitution following its revision in 2004, causing quite a few problems pertaining to their use. The formation of a parliamentary majority is a political process related to support for the Cabinet of Ministers (the Government). Regulating this process, especially on a constitutional level, granting a subjective status to parliamentary majority – while bringing no positive result, these things inherently involve a lot of risks and problems of a casuistic nature.

Analogously, it is deemed inexpedient to raise at constitutional level the issue of status of parliamentary opposition, since the latter is, by its very nature, the parliamentary minority and may display high political diversity. Therefore, the provisions on parliamentary coalition as well as those on parliamentary opposition must be removed in the process of subsequent Draft Law finalization.

The rationale for the fifteen-day period within which the President makes a submission to the Verkhovna Rada on the appointment to the post of the Prime Minister of the candidate nominated by the parliamentary coalition is quite unclear. There seem to be no reasons for such a long term. This problem will be eliminated, however, in the event of removal of provisions on parliamentary coalition and on ensuring participation of the President in dialogue with the heads of parliamentary factions for the purpose of nominating a candidate for the post of Prime Minister who will be able to form the Government and get the majority of votes in the Verkhovna Rada in its support.

Changes related to the procedure for making submissions on the appointment of the Minister of Defense and the Minister of Foreign Affairs deserve a positive evaluation. Pursuant to the current Constitution,these submissions to the Verkhovna Rada are made by the President. The procedure proposed in the Draft Law is better at providing for the integrity and unity of state policy in the respective spheres.

3.4. Constitutionalization of new government bodies and removal of provisions on some of existing ones

Changes proposed in the Draft Law include removal of the provision on the procedure of appointment of the Head of the State Committee of Ukraine for Television and Radio Broadcasting and of the Head of the State Property Fund of Ukraine. These bodies are not mentioned elsewhere in the Constitution. Apparently, these bodies must be liquidated when the constitutional changes take effect. It is deemed necessary to indicate in the Transitional Provisions the deadlines for the liquidation of these bodies and probably address other issues in order to ensure unambiguous application of this part of constitutional changes.

The provisions of paragraph 122 of Part one of Article 85 and of paragraph 142 of Part one of Article 106 establish procedure for appointment and dismissal of the Head of the State Bureau of Investigation. This is a new body, proposed by the Draft Law. The range of competence of this bodyis indeterminate. If this implies the establishment of a special body for conducting anticorruption investigations in the higher government bodies, then it is necessary to specify this – at least in the name of the body. If a different range of competence for this body is implied, then its creation appears to be inexpedient.

The Draft Law envisages new provisions on the procedure for the appointment and dismissal of the Head of the External Reconnaissance Service. It is deemed justified to constitutionalize this body.

Another Draft Law novelty is a proposal to constitutionalize national commissions for state regulation of natural monopolies. The idea itself seems to be a good one; however, its implementation pattern proposed in the Draft Law is not quite good as regards to both the procedure for the formation of these commissions (see subsection 3.5) and indication their spheres of action .

Paragraph 92 of Part one of Article 105 presents an exhaustive list of spheres of natural monopolies that are subject to state regulation by the national commissions: “in the spheres of communication and informatization, stock markets and markets of financial services.” This list gives rise to some concern, because it is by no means an exhaustive one. For example, the power industry and the sphere of municipal services are also natural monopolies requiring the existence of independent regulators. When finalizing the Draft Law, it is necessary to choose one of two possible options: either (1) to specify an exhaustive list of natural monopolies or (2) to establish a single national commission that will conduct state regulation in all the spheres of natural monopolies.

3.5. Appointing powers of the President and of the Verkhovna Rada

In the Draft Law:

a) the Prosecutor General of Ukraine is to be appointed by the President with consent of the Verkhovna Rada. Both the President is empowered to personally dismiss the Prosecutor General and the Verkhovna Rada can pass a nonconfidence vote against the Prosecutor General, which entails dismissal of the latter. Such a procedure for the appointment and dismissal of the Prosecutor General is unacceptable. It merely aggravates the problems of political dependence of the Prosecutor General;

b) a procedure of appointment and dismissalsimilar to the one for the Prosecutor General is proposedforthe Head of the State Bureau of Investigation.Irrespective of the types of investigations that this body will perform as its function, it is clear that the Head must have maximum political independence. Therefore, the procedure proposed by the Draft Law for the appointment and dismissal of the Head of the State Bureau of Investigation is unacceptable.

c) the Head of the Security Service of Ukraine is to be appointed by the President with consent of the Verkhovna Rada and dismissed by the President’s personal decision. Pursuant to the current Constitution, the Head of the Security Service of Ukraine is both appointed and dismissed by the President with consent of the Verkhovna Rada. The Security Service of Ukraine is functionally related to the powers of the President. The President’s ability to dismiss the Head of the Security Service of Ukraine, in the event of undue performance of obligations by the latter, is a necessary tool for the exercise of presidential powers. Therefore, the change proposed in the Draft Law appears to be well-founded;

d) the Head of the External Reconnaissance Service is to be appointed and dismissed by a personal decision of the President. In view of the nature and functions of this body, such an approach is deemed to be the right one;

e) the Head of the Antimonopoly Committee of Ukraine, the heads and members of the nationalcommissions conducting state regulation of natural monopoliesare to be appointed by a personal decisionof the President. Such a proposal cannot be supported. It is understandable that these bodies must be independent from the Cabinet of Ministers and from the parliamentary majority. However, concentrationof control over bodies empowered to interfere on behalf of the state in the conduct of business in the hands of the President is bound to create great risks of abuse of respective powers. Currently prescribed joint appointment and dismissal of the Head of the Antimonopoly Committee by the President and the Verkhovna Rada creates better conditions for the Head’s independence from political influence. As to theregulatory bodies the very idea of their collegiate character is that they must include representatives of different participants in relevant legal relations. Therefore, they should be formed by different subjects. Appointment of all members from the same political center undermines their collegiate character.

3.6. New language status: “special status” that can be granted to the Russian language and other languages of national minorities

Part two of Article 143 contains the following provision: “Village, settlement, city/town, district,region councils can, in the manner prescribed by law, confer a special status, within the limits of the respective administrative-territorial unit, to the Russian language and other languages of national minorities of Ukraine.”

Such proposal contradicts Article 10 of the current Constitution of Ukraine, which determineslanguage statuses in Ukraine (in structural terms, Article 10 is part of Chapter І of the Constitution, which can be modified in accordance with a complicated procedure with an all-Ukrainian referendum as its final stage). Chapter І of the Constitution of Ukraine establishes the main principles of constitutional system. In order to protect these principles, the giver of the Constitution established a special procedure for amending the provisions in this Chapter. The giver of the Constitution determined principles for using languages in Ukraine as one of issues addressed by Chapter I of the Constitution of Ukraine. This means that the constitutional principles for the use of languages in Ukraine can be changed only in the manner prescribed for amending Chapter І of the Constitution of Ukraine.

Chapter 10 provides for two possible language statuses in Ukraine: the state language and the languages of national minorities. Parts one – three of Article 10 of the Constitution establish the following: “The state language of Ukraine is the Ukrainian language. The State ensures the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory of Ukraine. In Ukraine, the free development, use and protection of Russian, and other languages of national minorities of Ukraine, is guaranteed.” Pursuant to Part five of Article 10 and paragraph 4 of Part one of Article 92 of the Constitution of Ukraine, the detailed procedure for the use of languages in Ukraine is established by law.

Thus, Article 10 of the Constitution of Ukraine does not provide for the existence in Ukraine of the concepts of “special language” or “language with a special status.” The peculiarities of use of the Russian language and other minority languages within the limits of the statuses established by the Constitution must be determined by law. Moreover, as Ukraine ratified the European Charter for Regional or Minority Languages, it established, in a separate law, a list of languages recognized by the state as “regional or minority” ones and specified the procedure for their protection.

Proposal for such provision in the Draft Law can be interpreted as amounting to empowering local self-government bodies to determine peculiarities of application in the respective territory (within the limits of a village, city/town, or region) of the principle of separation of powers (which is secured in Article 6), or the principle of rule of law (Article 8) or any other norm established by Chapter I of the Constitution of Ukraine.

Therefore, the proposed provision is unacceptable and must be removed from the Draft Law. It carries great risks for the constitutional reform in general. The Draft Law on amending the Constitutionof Ukraine must in no way give rise to doubts as to its legitimacy.

3.7. Other amendments

A positive aspect of the Draft Law is the removal of the provisions on the “imperative party mandate” of an MP of Ukraine (paragraph 6 of Part two and Part six of Article 81 of the Constitution of Ukraine).

Equally positive is our evaluation of the proposal to remove paragraph 5 of Part one of Article 121, which confers the function of general supervision on the Public Prosecution Service.

The Draft Law also contains a number of editorial adjustments. Thus, the term “deputies’ faction” is replaced with “parliamentary faction,” which is really more appropriate. Pursuant to amendments to Article 82, the Verkhovna Rada shall be deemed competent if no less than two thirds of the number of MPs of Ukraine prescribed by the Constitution (“constitutional composition”) have been elected and sworn in. The current Constitution of Ukraine provides only for the conditions for being elected. Furthermore, the Draft Law brings back the requirement which was included in the 1996 version of the Constitution of Ukraine, that the Regulations of the Verkhovna Rada of Ukraine must be approved as a law.

4. Issues not reflected in the Draft Law, although needed to be subject of the Constitutional Reform

As noted above, it is unclear what the Draft Law actually is – a proposal for the first stage of constitutional reform or a holistic and systemic reform in its own right.

In either case, it shall be emphasized that there is a number of issues that were not reflected in the Draft Law.

Thus, there is a necessity for an amendment to the Constitution towards recognition of the binding jurisdiction of the International Criminal Court. This is a highly pressing issue. It must be resolved as fast as possible.

The Public Prosecution Service needs to be radically reformed. One may say that the creation of a constitutional basis for a systemic reform of the Public Prosecution Service is not an issue to be addressed by the Draft Law. It appears that the two changes related to the activities of the Public Prosecution Office have been proposed for other reasons.

There is a need to improve the procedure for the formation of the Constitutional Court of Ukraine – at least as regards the establishment of a qualifications-based selection of candidates for positions of Judges of the Constitutional Court.

Long overdue is the need for restricting the scope of MP immunity. Extremely topical and important is the question of what must be done to ensure compliance with the requirements of the legislative process in the Verkhovna Rada. One of the manifestations of permanent violation of the legislative process is the problem of MPs’ non-personal voting, which partially results from the procedure for adopting decisions in the Verkhovna Rada. These questions should also be addressed by the constitutional reform.

No less topical is the need for a well-ordered system of bodies of executive power on the central level and for establishing the constitutional principles for public service.

There are quite a few other issues that probably require constitutional amendments; only an open expert discussion and further consultation with society during public debate will reveal whether relevant changes are really necessary.

In addition, it is unclear why the Transitional Provisions of the Draft Law contain no proposal for the calling of preterm elections of the MPs of Ukraine. Constitutional changes regarding the authority of the higher government bodies should take effect as of the day of the first meeting of the Verkhovna Rada of the new convocation. Moreover, the resolution of the issue of scheduling preterm elections of the MPs precisely in the Law on Amending the Constitution appears to be the most reasonable step to take both from the legal viewpoint and from the viewpoint of the current political process.

5. Conclusions and Recommendations

The process of preparation of the Draft Law that was submitted to the Verkhovna Rada of Ukraine by the President of Ukraine fails to meet the criteria of transparency, publicity, and competence in legal issues. Scientific and expert circles were not engaged in the work on the Draft Law. No public discussion of the Draft Law was conducted.

It is inadvisable to send the Draft Law in its currently proposed form to the Constitutional Court of Ukraine that has to provide an opinion on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution. The Draft Law requires essential conceptual, technical and legal reworking.

In order to finalize the Draft Law, it is deemed necessary to involve reputable, highly qualified, and politically unbiased experts in constitutional law.

The constitutional reform must be developed and implemented with maximum involvement of civil society.

Drafters of the Opinion:

Volodymyr Vasylenko, Professor of National University of Kyiv-Mohyla Academy, Doctor of Legal Sciences, Extraordinary and Plenipotentiary Ambassador of Ukraine

Serhii Holovatyi, member of the International Association of Constitutional Law, Doctor of Legal Sciences

Yaryna Zhurba, expert in constitutional law, Center for Political and Legal Reform

Yulia Kyrychenko, manager, Working Group on Constitutional Reform, coalition “Reanimation Package of Reforms”

Yurii Kliuchkovskyi, President, Election Law Institute

Ihor Kohut, Chairman of the Board, Laboratory for Legislative Initiatives

Ihor Koliushko, Chairman of the Board, Center for Political and Legal Reform

Svitlana Kononchuk, Head, Political Institutes Democratization Program, Ukrainian Center for Independent Political Research

Oksana Syroyid, Director, Ukrainian Legal Foundation

Anatolii Tkachuk, Science and Development Director, Civil Society Institute