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Strasbourg, 3 December 2003
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Restricted
CDL (2003) 96
Or. Engl.
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Opinion no. 230 / 2003
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE THREE DRAFT LAWS PROPOSING
AMENDMENTS TO THE CONSTITUTION
OF UKRAINE
by
Ms Herdís THORGEIRSDOTTIR
(Substitute Member, Iceland)
COMMENTS ON THE THREE DRAFT LAWS PROPOSING AMENDMENTS TO THE
CONSTITUTION OF UKRAINE
I. Introduction
1. Three draft amendment laws were submitted
to the Constitutional Court to review their compatibility with
Articles 157 and 158, submitting inter alia that Constitutional amendments that
limit citizens' rights and freedoms, ‘liquidate’ independence, or violate Ukraine's territorial integrity are
impermissible. The Constitutional Court has declared two draft laws
satisfactory with regard to the above criteria but not yet pronounced its
decision concerning draft law 4105 of 4 September 2003 (CDL (2003) 80), which
is almost identical to draft law 4180. Hence the following comments are
directed at draft laws 3207-1 of 1 July 2003 (CDL (2003) 79) and 4180 of 19
September 2003 (CDL (2003) 81).
2.
The draft law (hereinafter Draft law 4180) “On
Amendment of the Constitution of Ukraine”, introduced by Members of Parliament S.
Havrysh, R. Bohatyriova, K. Vashchuk and M. Hapochka, signed in April by 233 parliamentarians,
foresees changes to 28 articles of the Constitution and additions of 16 new
statutes. The draft is changing the term of office of the Verkhovna Rada
of Ukraine; theposition of individual members of parliament, the procedure for electing
President of Ukraine, the procedure for forming the Cabinet of Ministers of
Ukraine; the tenure of judges and it proposes the procedure for forming the
Constitutional Court of Ukraine. It increases the authority of the parliament for five years and envisages
the formation of a parliamentary majority that has the right to select a
government. The President will
get a right to dismiss the Parliament, if the majority is not formed or the
coalition government is not created. The person, for who not less than 300
(constitutional majority) parliamentary votes are given, becomes the new
President. The voting should be secret. The president is elected by the parliament
for a five-year term. According
to the transitional statutes, the new procedure for forming the government
comes into effect in 2006, when a new parliament is to be elected according to
party lists. The next presidential elections must take place in October 2004;
however, in 2006 the new parliament chooses a new president. The term of
the regular Presidential elections are not postponed, as proposed in draft law
4105.
3. Another draft (hereinafter referred to as Draft
law 3207-1 prepared by the Supreme Rada special commission envisions a
significant enhancement of the powers of the highest legislative and central
executive authorities. The President’s rights are to be noticeably limited, but
he remains a powerful political player. The authors see no need for changing
the presidential election procedure. Draft 3207-1 foresees a direct universal
ballot. The Constitutional Court ruled on October 30th that the
draft law does not violate human rights or endanger Ukraine's independence or territorial sovereignty.
4.
The
following comments are an assessment of the purported objective of the draft
laws to diminish the power of the President and
move to a more parliamentarian system of government with regard to the question
of constitutionality and consistency with international standards. Ukrainian
authorities have declared that they are striving to meet European standards and criteria that underpin true
democracy.
The commitment that Ukraine has undertaken by ratifying the European Convention on Human
Rights is to do its utmost to achieve the objectives set out in the preamble of
that Convention: to enhance an effective political democracy for the further
realization of human rights. It must hence be questioned whether the proposed
amendments to the 1996 Constitution are a clear commitment to these
goals? Furthermore
the draft laws’ coherence is assessed when considered in the light of
the general structure and current situation of the country. It may hence be had in mind
when scrutinizing the draft laws and the Constitutional Court’s approval that
‘constitutional law . . . is not at all science, but applied politics, using
the word in its noble sense.’
II. The question of transfer of power?
5. Art. 76 of Draft Law 4180 proposes
to increase the term of authority of the Verkhovna Rada five years from the
four-year term stipulated at present in Art. 76 (1). This amendment arouses
suspicion. It reveals reluctance to place sovereignty in the hands of the
people. In most other central and eastern European states the parliamentary
term is 4 years where Turkey is an exception with 5 years. The
voting turnout of registered votes in Ukraine has gone down from 75.6 % in 1994
to 69.4 % in 2002.
The trend is widely so that wide average turnout has in national parliamentary
elections been going down although it went up in the former Communist states of
central and Eastern-Europe in the 1990s. It is going down again in Ukraine, which means that increasing the
term from 4 years to 5 years is more likely to increase political apathy than
enhance it. As elections do not imply control over the policies that
representatives will support once they are elected, the election promises of
the parties are likely to fall further into the background the longer the term
between elections. The prevailing authorities may hence buttress their power to
the detriment of a delicate process in a developing political system. It should
therefore be recommended that the proposed paragraph (5) to Article 76 be
withdrawn and Article 76 (1) kept unaltered. Rousseau warned that people is
only free during the election of members of parliament. ‘As soon as they are
elected, slavery overtakes it, and it is nothing.’
The remote possibility of the truth of this aphorism renders any prolongation
of a period where the ‘general will’ cannot be expressed objectionable.
6. Art. 78 which states that members of
parliament shall fulfil their authority on full time basis, states in paragraph
(2) that Members of Parliament may not have another representative mandate or
be in the civil service and the requirement concerning incompatibility with
other types of activity shall be required by law. Both draft laws 4180 and
3207-1 enumerate in details the requirement of incompatibility in Art. 78 (2).
They also list exceptions to this requirement. Draft law 3207-1 submits ‘except for lecturing, scientific and creative
one’. Draft law 4180 allows the exception that
members of parliaments can be chief executives of central bodies of executive
power as well as cabinet ministers. Many parliamentary systems require
ministers to serve in parliament so that exception is not conflicting with a
parliamentary system. Making an exception for Members of Parliament to be chief
executives of central bodies of executive power infringes the distinction made
between executive power and legislative power. The apparent restriction of the above proposal does not seem to be
coherent as it grants an exception that seems highly controversial. The
proposed amendment is guardedly detailed. It might be recommended that such
details should be regulated by special law. Constitutions are concerned with
matters of substance, they embody general principles and the text is usually
rigid. It hence applies with regard to the above amendment as many others that
it seems more appropriate that details of ineligibility or incompatibility with
the office of national deputy are defined by general law.
7. It may, however, given the
atmosphere of political distrust, be advisable that incompatibilities
are regulated in detail by the Constitution. Disputable exceptions, encroaching
on legislative power, should be excluded.
8. The proposal in both Draft Laws in Art.
81 (8) in 3207-1 and Art. 81 (10) in 4180 that a deputies mandate would be
terminated on his or her leaving, or being dismissed from the parliamentary
faction from which he or she was elected, pursuant to a decision of the highest
steering body of the respective political party or terminated prematurely by a
court of law, has already been described as a “dangerous amendment”. The Venice Commission has also
emphasized that to link the mandate of a
national deputy to membership of a parliamentary faction or bloc infringes the
independence of the deputies and might also be unconstitutional (for instance
with regard to Articles 5 and 79), bearing in mind that Members of Parliament are supposed to represent the people
and not their parties. The
authority of the members of parliament commences with the oath and a refusal to
take it results in loss of the mandate, as stipulated in Art. 79. The right to vote by the representatives should be
personal.
Members of parliament are representatives of the whole people and ought hence
not to be bound by orders and instructions but be subject only to their
conscience.
9. In
representative systems sovereignty lies with the people. The proposed procedure as pointed out inCDL(2003)41 would also give the parties the power to annul electoral results. It would put the parliamentary bloc or group in some ways
above the electorate which, in return, is unable to revoke individually a
parliamentary mandate conferred through election for four years. The doctrine
of the mandate is that government programme is the implementation of election
promises that have received the consent of the electorate
10. The draft laws propose that the operational rules of the
procedure of the Verkhovna Rada is no longer established by law as stipulated
in Art. 82 (5) of the present Constitution. Draft law 4180 omits paragraph 5 of
Art. 82 and submits in Art. 83 (5) that the ‘working procedure of the Verkhovna
Rada of Ukraine shall be established by the Constitution of Ukraine and by the
Rules of Procedure of the Verkhovna Rada of Ukraine.’ Draft law 3207-1 changes
the wording in Art. 82 (5) and omits the word law.
11. The departure from establishing by law the rules of
procedure of the Rada during a period of political instability may deprive the
national representative body of real power. The rules of procedure of
Verkhovna Rada ought to continue to be determined by law.
12. Draft law 3207-1 proposes a change
in Art. 85 (3) adding to the power of the Verkhovna Rada of adoption of laws ‘and
their interpretation’. Legislative authority is the power to make law and legal
interpretation may be expressly provided by the legislator. It is a truism that
legislation requires explanation. Bills put before national assemblies contain
not only the proposed legal text, but also the legislator’s motive for the
proposal. These motives, together with discussions in the parliament and
its committees can be of significance in a subsequent interpretation of the act
when passed. The proposed amendment seems
superfluous and might infringe on the sphere of the judiciary as Courts of law
do not operate in a valueless vacuum. Judges use statutory interpretation to protect rights, for
example by interpreting ‘value-laden’ expressions in statutes; secondly by the
use of presumptions. The greater bulk of legislation consists of statutory
instruments, which parliamentary committees may endeavour to supervise, but
which national assemblies cannot hope to consider. Much legislation in today’s
world emanates from the permanent bureaucracy rather than from elected representatives
of the people.
13. The risk of oppressive exercise of
power by the political branches of government is grave enough without granting
these branches tools for absolution as entrenching in the Constitution, in the
hands of the legislator, the instrument of the third branch of government, that
of ‘interpretation’. At the end of the litigating day, the translation of
political, social and ethical values into legal principles must be articulated
by the judge.
III. Parliament, President and the Government
14. As
the Venice Commission has repeatedly stated, the choice between a presidential
and a parliamentary system is a political issue, to be decided by the country
in question.
15. The
government must however be according to the Constitution with separation of
powers and popular sovereignty. The government must be democratically
accountable to its own people. An effective safeguard in this respect is
provided in Art. 113 (2) in both draft law 3207-1 and 4180 submitting that the
Cabinet of Ministers of Ukraine shall be responsible before and controlled by
the Verkhovna Rada of Ukraine, and be accountable to it within the limits
provided for by the Constitution.
16. Art.
85 (12) in draft law 3207-1 provides that following a proposal of the President
of Ukraine, the Verkhovna Rada will appoint the Prime Minister, dismissal from
the office and acceptance of resignation and approve appointments of members of
the Cabinet of Ministers by proposal of the Prime Minister, and termination of
his/her authority and ‘approval of appointment and dismissal for the office of
some members of the Cabinet of Ministers.’ According to Art. 106 (11) of draft
law 3207-1 the President appoints to and dismisses from the offices, by
proposal of the Prime-Minister and upon consent of the National Assembly, Head
of the Antimonopoly Committee of Ukraine, Head of the State Border Guarding
Service, Head of Security Service, Head of State Committee for Television and Broadcasting.
According to Art. 114 (7) the appointments of Ministers of Foreign affairs,
Home affairs and Defense must be preliminarily agreed by the Prime Minister
with the President.
17. Draft
law 4180 proposes in Art. 85 (12) that the President nominates the Prime
Minister, Minister of Defense, Minister of Foreign Affairs along with the head
of the National Security Service. The same provision the National Assembly
appoints to office other members of the Cabinet as well as the head of the Antimonopoly
Committee, the Chairman of the State Committee of Television and Radio
Broadcasting following their nomination of the Prime Ministers.
18. Political
power is accordingly highly centralized. If the President’s nominations of key
ministers of the government, i.e. that of Minister of Defense and Foreign
Affairs is to underline the division between his power of being in charge of
foreign affairs while the National Assembly is in charge of internal affairs,
it clashes with this principle that the President is also nominating key
figures within the political system, such as Head of Security Service and Head
of the State Committee for Television and Broadcasting and the Minister of Home
Affairs (Art. 114 (7) draft law 3207-1).
19. The
result of the proposed reforms is an ambiguous regime. The draft amendments
seem to hide more than they illustrate about the distribution of political
power. The political institutions do not seem parliamentary. The state
administration does not seem in the hands of individual ministers as the
President appoints and dismisses chief executives of central bodies of
executive power (who may also be members of the National Assembly according to
Art. 78 (2) of draft law 4180 see above III. 2). The President has much more
real power than the Prime Minister, which, may be a question of political
choice of the relevant country as long as it is not in variance with
international democratic standards. It is however hard to assess whether the
government is according to the Constitution if the separation of powers is not
absolutely clear as well as popular sovereignty and democratic governance.
IV. Election of the President by the National Assembly
20. Article 103 in force submits that
the President of Ukraine is elected by the citizens of Ukraine for a five-year term, on the basis
of universal, equal and direct suffrage, by secret ballot. Draft law 4180
proposes in a new Art. 103 that the President of Ukraine is elected by the
National Assembly if not less than two-thirds of the constitutional composition
of the Assembly has voted in his/her favour by secret ballot. The Constitutional Court did not consider this change to
contradict the constitutional guarantees since the bearer of power in Ukraine are its citizens who exercise this
right through its elected bodies.
21. The government is to be according to
the Constitution. Art. 5 of the Constitution submits that the people are the
bearers of sovereignty and the only source of power in Ukraine, they exercise their power and
through bodies of state power and bodies of local government. The right to
determine and change the constitutional order in Ukraine belongs exclusively to the
people and shall not be usurped by the State. No one shall usurp state power. Art.
69 states: ‘The expression of the will of the people is exercised through
elections, referendum and other forms of direct democracy. Art. 38
specifies that the citizens have the right to participate in the administration
of state affairs, in All-Ukrainian and local referendums, to freely elect and
to be elected to bodies of state power and bodies of local self-government. Art.
71 envisages that elections to bodies of state power and bodies of local
self-government are free and held on the basis of universal, equal, direct and
secret ballot. Voters are guaranteed the free expression of their will.
22. The proposal to elect the president
in the Verkhovna Rada does not seem to comply with these provisions. The people
(the exclusive source of state power) are being deprived of their
constitutional right to elect one of the state power institutions in a free and
direct election. This, in turn, infringes on another constitutional right - the
right to participate in public administration. Articles 38 and 71 both
stipulate the citizens’ right to take part in electing the state power
institutions. As per the Constitution, there are two institutions of this kind:
the Supreme Rada and the President. If the National Assembly elects the President,
there will be only one institution directly ‘accessible’ to the people.
Therefore, not only does the draft contradict the spirit of Article 157 but its
letter as well. This amendment is not desirable; in particular not in the
context of another proposed amendment in the same draft law (see III. (1)
above). The President as Head of State
should be elected directly by the citizens of Ukraine.
V. Prosecutor’s Office
23. The draft laws in question propose
an amendment to vest the Prosecutor’s office with supervision over the
observance of human and citizens’ rights and freedoms, compliance with the laws
on such issues by the bodies of state power, bodies of local power and their
offices and civil servants (Art. 122 (5)).
24. The powers of the Prosecutor’s
office vest it with considerable authority, but they only become a source of power
if they are abused. The establishment of administrative watchdog procedure to
encourage good government, to oversee that public authorities respect the laws
and do not violate human and citizens’ rights should be independent from the
executive branch of government, and mandated by the legislature. Hence it would
be better if such supervision was consigned to an Ombudsman-type of institution
as a protector of justice and citizens’ rights that would communicate criticism
to public authorities and to the media. Such an institution could also be
vested with prosecutorial powers. In a state like Ukraine where the purported aim is to
enhance an effective political democracy, it is important that the institution
that supervises compliance with the rule of law is non-political in order to
re-educate the public sector to do things in a different way, as compared with
the past. Such a task implies confrontation with other societal institutions
and hence requires independence from the executive branch of government.
25. As supervision over the observance
of human and citizens’ rights entails the un-rewarding task of criticizing
those in power it is pointless to consign such a role to somebody proposed by
the Head of State or ‘who is appointed to office and dismissed from office,
with the consent of the Verkhovna Rada of Ukraine, by the President of Ukraine’
as proposed in draft law 4180 (Art. 122).
VI. Justice
26. Art. 126 (4) in force states that
judges hold offices for permanent terms, except judges of the Constitutional
Court of Ukraine, and judges appointed to the office of judge for the first
time. Draft law 4180 in Art. 126 (2) proposes that ‘judges are elected to their
offices for a period of ten years, except for justices of the Constitutional
Court of Ukraine, and judges appointed to the office of judge for the first
time.’ The other draft law 3207-1 proposes that Art. 126 (4) be excluded and
that Article 128 (1) instead shall provide that the first appointment to the
position of professional judge for the period of five years shall be done by
the President of Ukraine. All other judges, except for judges of the Constitutional Court, shall be elected by the National
Assembly for the period of 10 years, with a right to re-election in line with a
procedure established by law.
27. These amendments seem
unconstitutional as Art. 126 in force submits that the independence and
immunity of judges are guaranteed by the Constitution. Establishing the
independence of the judiciary and co-equality with other branches of government
helps to guarantee a system based on the supremacy of the rule of law envisaged
by Art. 8 of the Constitution.
28. The Constitutional Court of Ukraine
remarked in its reasoning that the election of judges by the Rada for 10 years
is a significant change compared to the present Constitution which establishes
that judges are elected for permanent terms.
29. Life tenure assures judges that they
will not lose their jobs in the event of an unpopular decision. This change is
hence a threat to the independence of the judiciary and goes up against the
practical demand of moving towards a democratic rule of law.
30. The impact of these amendments is
not to establish the credibility of the court system as well as the respect due
to the judiciary. The impact will be to impair the capacity of the judges to
perform their role.
VII. Media
31. Given the pre-eminent role of the
press in democratic society any proposed
amendment in the draft laws that may have an impact on the performance of the
media, without which democracy is hardly perceivable, must be scrutinized
meticulously.
32. There is no section in the
Constitution or a provision, which protects press freedom. Art. 34 guarantees
everyone the right to freedom of thought and speech, and the expression of his
or her views and beliefs. Everyone has the right to freely collect, store, use
and disseminate information in written or other means of his or her choice.
Unlike Art. 10 of the European Convention the right to receive, which in
Convention jurisprudence has become a general principle confirming the public’s
right to receive implying a positive state obligation to guarantee an
independent and responsible press, the Ukrainian Constitution does not
guarantee the right to receive. The instrumental aspect of freedom of
expression underpinning the press as the public watchdog, recognized widely in
other member states of the Council of Europe, is not affirmed in Art. 34 of the
Constitution. The enforcement mechanisms of the European Convention have
succeeded in enhancing its significance within the member states as it
represents a kind of European ius commune. Press performance in
the member states of the Council of Europe must measure up to the principles of
Article 10 and the relevant case-law. The free and unhindered exercise of
journalism is enshrined in the right to freedom of expression and is a
fundamental prerequisite to the right of the public to be informed on matters
of public concern.
33. ‘Ukrainehas the worst record in Europe for violence against
journalists’, according to the Reporters sans Frontiers.
On July 9, 2003, theVerkhovna Rada adopted a new law, condemned by the International Federation of
Journalists, which allow that journalists suspected of revealing State secrets
may be detained. This law will apparently give excessive levels of power to the
Ukrainian Secret Service, including the investigation of 'illegal' usage of
special technical means (recording telephone conversations, use of information
technologies, etc.) to get information from anonymous sources. Such laws seem in conflict with European
Convention jurisprudence.
34. In light of the above described
situation, regard must be had to the fact that (see IV. (4) above) the
President nominates the Head of the National Security Council and the Chairman
of the State Committee on Television and Broadcasting (Art. 85 (12) draft law
4180 and Art. 106 (11) of draft law 3207-1), albeit with the issuance of
consent by the National Assembly.
35. Draft laws 3207-1, further recommend
that Art. 85 (20) is changed so that the Verkhovna Rada has the authority to
appoint and dismiss all 8
members of the National Council of Broadcasting.
It is furthermore proposed that the
National Assembly can issue a vote of no confidence to persons appointed to
their position upon consent of the Assembly, which leads to their resignation
from the position (Art. 85 (37) draft laws 3207-1).
36. Incompatibilities
or conditions for dismissing members of national broadcasting councils are
usually not specified in the law of the older member states of the Council of
Europe.
37. Based
on the law on National Television and Broadcasting Council of Ukraine
a declaration of no confidence can be made by the Supreme Council to a member
of the National Council appointed by it or by the President of Ukraine to a
member of the National Council appointed by him/her. The Chairman may be
dismissed during his/her term of office by a Resolution of the Supreme Council
on the basis of an application of the President of Ukraine. Conditions for
dismissing a member of the authority before the end of his/her term are apt to
wide interpretation, such as ‘if a member fails to carry out his duties or
turns out professionally inadequate’.
38. Most
Council of Europe member countries have one broadcasting regulatory authority
that supervises and regulates all kinds of broadcasting: television, radio,
cable and so forth. In others, there are two different bodies, one issuing
licenses and dealing with the more technical aspects of broadcasting, the other
supervising the content of programmes and dealing with complaints. The National
Council for Television and Broadcasting in Ukraine is the body that deals with
the technical aspects of broadcasting and issues licenses but it is also responsible
for the development and quality of Ukraine's television and radio broadcasting,
as well as for an increase of the professional, creative, and ethical level of
radio and television programs and broadcasts of TV/radio organizations.
39. The
State Committee of Television and Radio Broadcasting
supervises the contents of programmes and adherence to relevant laws (Law on
Television and Radio Broadcasting, Law on Advertising etc.). According to the
final provisions of the Law on Television and Radio Broadcasting chapter IX (1),
in the period of general or partial mobilization and/or state of martial law in
Ukraine or in its separate regions, a special regime of TV/radio broadcasting
shall be introduced, under which only TV/radio organizations of the State
Committee of Television and Radio Broadcasting shall be allowed to broadcast
using only channels of enterprises subordinated to the State Communications
Committee of Ukraine and to the specifically authorized central body of
executive power for television and radio broadcasting.
40. It
is not inconsistent with European Convention jurisprudence that states are
permitted to regulate by licensing system the way in which broadcasting is
organized in their territories, particularly in its technical aspects but also
with regard to other considerations but the compatibility of such interference
must be assessed in the light of its necessity in a democratic society.
The public interference reflected in the proposed amendments, taken on the
whole, with regard to broadcasting authorities seems to conflict with
Convention jurisprudence and directly with the Committee of Ministers’
recommendation that: ‘Member states should ensure the establishment and
unimpeded functioning of regulatory authorities for the broadcasting sector by
devising an appropriate legislative framework for this purpose. The rules and
procedures governing or affecting the functioning of regulatory authorities
should clearly affirm and protect their
independence.’
VIII. Concluding remarks
41.
The
home of contemporary constitutional adjudication is post-authoritarian systems.
One thing that such systems have in common is the judges that are still on the
bench are implicated to some extent, in the practices of previous regimes. The
citizenry in such circumstances have every sociological reason to be suspicious
of how those officials would go about their business. There exists a
characteristic circumstance of distrust of the lawmakers as well as the judges.
The model of parliamentary sovereignty – one in which the parliament is
superior both to the judiciary and executive where acts of the legislature are
the supreme expression of the people’s general will, has been the dominant
model of constitutionalism throughout the world.
Apparently it is the wish of the Ukrainian authorities to gradually move to
parliamentarianism where the proposed amendments to the Constitution are an
incremental step. Regard must however be had to the fact that there are
differences in legal values between unlike systems although that should not
stand in the way of finding measures to improve the legal framework and give to
the people of Ukraine what ‘the people are entitled to against every government
on earth’.
International legal standards require states to have appropriate national
constitutions.
A society where rights are not secured and the separation of powers established
has no constitution at all.
