Analytical Brief by CPLR and RPR
on Conducting the Constitutional Reform (February2016)
The constitutional reform isunderway in Ukraine, involving constitutional amendments in 3areas: human rights, decentralization and reform of the judiciary.
1.Human rights
At present, public debates continue on the constitutional protection of fundamental human rights and freedoms, with the view towards developing a coordinated version of the draft constitutional amendments concerning human rights issues. Constitutional reform in the area of human rights, freedoms and duties follows a transparent process and adequately engages the public in the constitution-buildingprocess.
2.Decentralization
On 3 February 2016,draft amendments to the Constitution of Ukraine (on decentralization of power)were added to the Parliament’s agenda according to theParliamentResolution No974-VIII“On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation”.As a reminder,the draft amendments to the Constitution of Ukraine (on decentralization of power) were submitted to Parliament by the President andapproved by the second session of 8th convocation of the Ukrainian Parliament on 31 August2015.
The issue of constitutionality of adoption of constitutional amendments at two non-consecutive sessions of Parliament is currently being reviewed by the Constitutional Court, following 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”.Throughout February2016 (on February3,4,8and15), the Constitutional Courtwas reviewing this in a closed plenary session.As of today, the rulingis yet to be issued.
The CPLR and the RPR’s Constitutional Reform Group believe that the language of the Constitution is unambiguous.Article155 of the Constitution of Ukraine clearly establishes the timeframe for amending the Constitution: it must occur during two consecutive sessions of the Parliament’s one convocation. Article155 of the Constitution has always been unambiguously interpreted in priorinstances of amending the Constitution and in the Constitutional Court’s opinions. The Constitutional Court, in itsOpinion of 17 October2002 (case No1-6/2002),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 (Article155 of the Constitution of Ukraine)” (section3 of the Opinion’sreasoning part).
3.Judicial Reform
On 2 February 2016,the Parliament, during its third session,provisionally approved draft amendments to the Constitution of Ukraine (on reform of the judiciary) and added it to the agenda of the fourth session.
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 comply with many other recommendations.
Parliament Resolution No974-VIII“On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation” of 3 February 2016 addedthe draft amendments No1776to the Constitution of Ukraine (on the immunity of the members of Parliament and judges) to the agenda of the Parliament.
This draft deals with parliamentary and judicial immunity and is now awaiting consideration by the Parliament.
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 belimited, but not lifted entirely, as envisionedby the draft law No1776. Parliamentary immunity is an essential feature of parliamentarianism.
4.The procedure for amending the Constitution
On 3 February 2016, draft Law No3781“On the Procedure for Drafting the New Constitution of Ukraine” was added to the agenda of the Parliament.
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.
As of February2016, the Law of Ukraine “On All-Ukrainian Referendum” of6 November2012, which was adopted in violation of constitutional procedures and in the interests of V.Yanukovych, 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.
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. The relevant petition was introduced by a group of MPs and representatives of a coalition of civic organizations “For Fair Referendum”back on 1 December2014; however, the Court, to date, has not moved forward with reviewing this case.
Additionally,a new version of the Law of Ukraine No2145а“On All-Ukrainian Referendum” has been registered in the Verkhovna Rada. Ithas been prepared by leading independent experts in the field of electoral law. Parliament Resolution No974-VIII“On the Agenda for the Fourth Session of the Verkhovna Rada of the 8th Convocation” added the draft was to the agenda of the Parliament.
The CPLR and the RPR’s Constitutional Reform Group call on the Parliament to urgently put into place a democratic legal regulation of the national referendum institution and repeal the unconstitutional procedure for amending the Constitution.
Constitutional Amendments Procedure
Circumstances that makeamending the Constitution impossible
Constitutional Courtis vested with the right to monitor compliance with the constitutional provisions which make constitutional changes impossible. The Parliament may consider the draft law which amends the Constitution only after the Constitutional Court rules that these constitutional provisions have not been violated.