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Restricted
CDL (2003) 34
Engl. only
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Opinion no. 230 / 2002
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE DRAFT LAW ON
AMENDMENTS
TO THE CONSTITUTION OF
UKRAINE
by
Mr Sergio BARTOLE
(Substitute member, Italy)
The draft of the law "on
amendments to the constitution of Ukraine" is basically aimed at reforming
the government of that Republic substituting a quasi-parliamentary government
for a quasi-presidential government, but it also implies many changes which
modify the balance of the relations between the constitutional bodies of the
State and would not be required by the apparent adoption of the main features
of the parliamentary model. The most important feature of these modifications
is the introduction of a bicameral Parliament with the transfer to the new
Chamber of Regions of some functions which are presently entrusted to the
Supreme Rada. Another important change affects the membership of the
Constitutional Court whose appointment will be reserved to the President of the
Republic and the new Chamber of Regions without any intervention of the
judiciary: the adoption of such a change would cancel the present balanced
arrangement of the membership of the Court which guarantees the constitutional
judge against the danger of being completely controlled through appointments
made by political bodies or political parties only. Also the procedure of the
revision of the Constitution should be changed.
1. In dealing with the proposal of creating a Chamber of Regions
(Articles 75 - 76 of the draft) we have to keep in mind that the Regions
(oblasts) don't have a clear constitutional coverage in the Constitution which
provides for the existence of their deliberative bodies and for some functions
of them (Articles 140 - 143). Article 141 provides for the election of the
chairman of an oblast council (who leads the executive staff of the council) by
the respective council, but Article 140 does not necessarily require the direct
election of an oblast council as far as it states that oblast councils are
bodies of local self-government that represent the common interests of
territorial communities of villages, settlements and cities. If this is the
political basis of the Chamber of Regions, the representative authority of the
new body shall not be comparable to the authority of the National Assembly -
that is the other Chamber of the Supreme Rada which has to be directly elected
by the people. The novelty could modify the balance of the power in the
government of the Republic of Ukraine with some advantages for the President
and the Cabinet of Ministers. Notwithstanding the pro-parliamentary choice of
the draft, which should emphasize the powers of the directly elected Chamber of
the Supreme Rada, the National Assembly will not any more concur (Article 85 of
the draft) in the appointment of some constitutional judges, the Human rights
Representative, the Chairman and the Board of the national Bank, the national
Council on television and radio broadcasting, central electoral Commission, the
relative functions being transferred to the Chamber of Regions as well as the
functions of electing judges for permanent term, granting consent for the
appointment of the general Prosecutor and withdrawing confidence from him. It
is evident that the proposed modifications will not affect only the relations
between the superior bodies of the State, but also the internal functioning of
the concerned organs and institutions.
As a matter of fact, the draft does
not take the chance of clarifying the meaning of some provisions of the
Constitution presently in force, or it creates new problems about their
compatibility with the European standards. For instance, it is still difficult
to understand whether the President and the new Chamber shall of Regions be
bound by the proposals on the appointment of judges submitted by the High
Council of justice (Article 131 of the constitution), while - on the other side
- the independence of the judges of the Parliament is endangered by the
provision limiting the term of the elected judges to ten years (Article 85
third alinea no. 13 of the draft).
Moreover it should be underlined
that the draft does not give any suggestion with regard to the election of the
members of the Chamber of Regions, therefore it does not exclude the
possibility of their appointment by the executive bodies of the oblasts without
any intervention of the parties which are in the minority in the oblast
councils.
2. It is evident that the draft is aimed to deal with the
problem of the political difficulties of Ukraine, but it offers solutions which
don't still convince the author of this comment and look contradictory.
It provides for the election of
the National Assembly on a proportional basis (Article 76 of the draft), which
is not a useful mean to avoid the present fragmentation of the Supreme Rada. It
is still not clear the real meaning of the rule providing for the establishment
of a permanent parliamentary majority (Article 83 of the draft), which is
apparently disconnected from the election of the Premier and the appointment of
the Ministers, even if it is aimed to give continuity and coherence to them.
The permanent majority looks as a stable association whose formation,
organization and activities shall be ruled by three different sources of law
(Constitution, the relevant statute and the law on the parliamentary
procedure). We can imagine that the purpose of the provision is insuring the
stability of the relations between the political parties concurring in the
formation of the permanent majority, but it is difficult to understand how it
can be coordinated with the freedom of choice and decision which is insured to
the political parties by the Constitution according to the European standard.
Alliances between political parties depend on the free choice of the parties
concerned, and they last as long as the governing bodies of the political
parties find convenient to stick to the negotiated agreements. The
establishment of a legal association does not add anything to the stability of
a parliamentary majority.
On the other side, the draft is
very severe in providing for the pre-term termination of the staying in office
of a member of the Parliament in the event of his/her expulsion or leaving from
the parliamentary faction of his/her party (Article 81 of the draft). The
provision is evidently aimed at strengthening the power of the political
parties, but it certainly conflicts with the principle of the free mandate: it
is true that this principle is not explicitly stated in the Constitution, but
it should be derived by the overall interpretation of the text.
3. The rigidity of the provisions concerning the permanent
parliamentary majority is evident if we look at the rules governing the
relations between the President, the Cabinet and the Parliament. The Prime
Minister is elected by the national Assembly on the basis of a nomination
submitted by the President on the proposal of the permanent parliamentary
majority (Article 114 of the draft): therefore the draft requires the previous
formation and organization of a permanent majority, which can waste time
without coinciding with the immediate election of the Premier and the
appointment of the Ministers. Why don't it provide for the formation of the majority
at the same time of the election of the Premier? Probably the draft is aimed at
giving a say to the President in all the procedure, but, perhaps, a less
baroque solution could have been envisaged. Another complicating element is the
exclusion of the Supreme Rada from the appointment of some important Ministers
(Internal affairs, Emergency situations, Foreign affairs, Defence) which is
left in the hands of the President on the basis of a proposal of the Prime
Minister (Article 106 of the draft): apparently these Ministers should not be
removed from the office individually, but only through a vote of no confidence
regarding all the Cabinet, therefore they have a constitutional status
different from that of the other Ministers.
Moreover Article 87 of the draft
entrusts to the President or to a group of members of the Parliament the power
of asking the National Assembly to consider the issue of responsibility of the
Cabinet and adopt a resolution of no confidence. Such a provision is unusual in
a parliamentary government and strengthens the position of the President who
may dissolve the National Assembly if a permanent majority is not formed within
the termination of the previous one, or if after the resognation of the members
of the Cabinet new members are not elected to replace them within sixty days,
or the State budget is not approved before December 1st.
But the President is allowed to
interfere with the functioning of the Parliament without the cooperation of the
Cabinet also in many other ways which are unusual in a parliamentary
government: for instance, by requesting special sessions of the Supreme Rada
(Article 82 of the draft), by exercising the right of the legislative
initiative (Articles 82 and 93 of the draft), by defining a draft law as not
postponable and obliging the two Chambers to consider it at joint meeting
(Article 93 of the draft). And eventually his veto can be overcome only by no
less than two-thirds of the constitutional composition of the National Assembly
when he asks a repeat consideration of a law by this body.
Taking into account all these
elements and the fact that the Cabinet is responsible to the President and not
only to the Parliament, we can argue for the conclusion that the President has
substantial powers to control or stop the political initiatives of the Cabinet,
while this is not the case for the Cabinet itself with regard of the
initiatives of the President, whose acts don't always apparently require the
countersignature of the Premier or of a Minister: the provision of the last
alinea of Article 106 of the Constitution is not amended but as far as some
details are concerned. The Cabinet is responsible to the President and not only
to the Parliament. Moreover the draft does not imply the abrogation of the
previous alinea of the same article according to which " the President of
Ukraine, on the basis and for the execution of the Constitution and the laws of
Ukraine, issues decrees and directives that are mandatory for the execution on
the territory of Ukraine ": the meaning of this provision is still
ambiguous, it is not clear if it adds some new powers to the presidential
functions listed in Article 106 of the Constitution, or if it only states a
general rule about the presidential acts which are adopted in the exercise of
those presidential functions.
As a matter of fact the Ukrainian
government could develop as presidential government only partially corrected by
the adoption/addition of some provisions reminding us the model of
parliamentary government. Therefore, if the aim of the legislator is to put at
the centre of the system of government the Parliament, we can say that the
draft is not completely satisfying and it is still keeping the leadership of
the President in the relations between the superior bodies of the State.
These conclusions can be better
appreciated if we take into account the fact that the President has still the
power of taking part in the appointment of the membership of some important
bodies of the State, and, therefore, he concurs - mainly with the Chamber of
Regions (or - only sometimes - with the National Assembly) - in the exercise of
powers which are specially relevant in designing the main features of the State
in action. Obviously the relevance of the President' role would have been emphasized
if he were elected before the elections of the Parliament, and his election
could influence the choice of the electors with regard the members of the two
Chambers. According to the draft the President shall be elected after the
election of the Parliament, and therefore his election will not have the effect
which is well known to the French constitutional experience where it frequently
happened that the results of the parliamentary elections conformed to the
results of the presidential elections. The solution adopted by the draft
(Article 77) may cause political conflicts between the Parliament and the
President which will not be settled very easily.
4. With regard to the sources of law, two points deserve some
remarks.
The rigidity of the relations
between the Parliament, the Cabinet and the President will be increased by the
provision requiring the determination through law of the principles of domestic
and foreign policy, which can become mandatory even for the individual subjects
while they should be aimed at binding the Cabinet and the Parliament only while
giving to the first the necessary freedom and flexibility in implementing the
will of the second.
But the most worrying provision
of the draft is the second alinea of Article 74. It explicitly states that
"laws and other decisions adopted by an All-Ukrainian referendum has the
highest legal force and do not require approval by the bodies of state power or
officials". My guess is that such a provision can imply that the adoption
by an All-Ukrainian referendum of a law aimed at revising the Constitution does
not require any intervention of the parliamentary bodies of the Republic of
Ukraine. The only exceptions apparently are the amendments to Chapters I, III
and XIII of the Constitution which should require the adoption by all-Ukraine
referenda "in the order provided for by Chapter XIII of the Constitution
of Ukraine", according to the rule introduced in the second alinea of
Article 74 itself of the draft.
Therefore at the same time the
draft suggests the amendment of the ordinary procedure for the adoption of the
amendments of the Constitution and keeps the special procedure to amend
Chapters I, III and XIII of the Constitution. It should require to be adopted
with the special procedure required by the Chapter XIII presently in force. It
should be obvious that the proposed reform cannot be applied to the draft under
consideration.
In any case the proposal of
enlarging the role of the All-Ukrainian referenda in the field of the
constitutional amendments is apparently conflicting with the purpose of
introducing a quasi parliamentary government because it emphasizes the
plebiscitary features which are present in the Ukrainian government reducing
the deliberative powers of the Parliament even if Article 85 of the draft
entrusts to the Supreme Rada the function of calling an All-Ukrainian
referendum "on the issues stated by article 73 of this Constitution".
University of Trieste, May 26th,
2003 (prof. Sergio Bartole)
