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Strasbourg, 15 December 2003
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CDL-AD (2003) 19
Or. Engl.
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Opinion no. 230 / 2002
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON THREE DRAFT LAWS PROPOSING
AMENDMENTS TO THE
cONSTITUTION
OF UKRAINE
Adopted by the Venice Commission
at its 57th Plenary Session
(Venice, 12-13 December 2003)
on
the basis of comments by
Mr
Sergio BARTOLE (Substitute Member,
Italy)
Ms
Finola FLANAGAN (Member,
Ireland)
Ms Herdís THORGEIRSDOTTIR (Substitute Member,
Iceland)
Mr Kaarlo TUORI (Member, Finland)
Introduction
1.
In its letter dated 8 April 2003, the Monitoring Committee of the
Parliamentary Assembly of the Council of Europe asked the Venice Commission to
give an opinion on the Draft Law “On Amendments to the Constitution of Ukraine”
(hereinafter referred to as the “Draft Law”) (CDL (2003) 32).
2.
On 6 March 2003, the President of Ukraine, Mr. L. Kuchma, submitted the
Draft Law in question to the Verkhovna Rada (Parliament) and opened a
nation-wide public debate, which was scheduled to be completed on 15
May 2003.
3. The Venice Commission invited Ms
F. Flanagan, and Messrs S. Bartole, G. Batliner and K. Tuori to act as
rapporteurs on this issue.
4. On 14 May, Mr. Zadorozhniy, the Permanent
Representative of the President of Ukraine in the Verkhovna Rada informed the
Venice Commission that the Draft Law was to be revised taking into account the
proposals and opinions expressed during the nation-wide debate, and in
particular the results of the meeting of the President of Ukraine, the leaders
of the Verkhovna Rada and the Cabinet of Ministers, as well as the leaders of
the main political parties, which was planned for the beginning of June 2003.
An ad hoc commission headed by the Ukrainian Minister of Justice would then
prepare a final draft text to be submitted to the Verkhovna Rada.
5. On the request by the Ukrainian
authorities, (Mr Vasyliev, First Vice-Speaker of the Verkhovna Rada and
Co-Chairman of the Ad-hoc commission of the Verkhovna Rada on amendment to the
Constitution) to continue co-operation with the Venice Commission on the basis
of the final proposal for amendments, the Commission
decided not to adopt the opinion on the draft amendments of 6 March 2003, but
to provide its opinion on the final draft proposal for amendments to be submitted to the Verkhovna
Rada. The new proposal for constitutional amendments was submitted to the
Verkhovna Rada and to the Constitutional Court of Ukraine in late June 2003.
However, due to further developments in Ukraine, the President decided to withdraw the revised draft law.
6. Three other proposals have been
submitted to the Verkhovna Rada : the first Draft Law on amendments to the
Constitution of Ukraine, prepared by Parliamentary Deputies A. Matviyenko and
others (no. 3027-1 of 1 July 2003 –CDL(2003)79); the second Draft Law on amendments to the
Constitution of Ukraine, prepared by Parliamentary Deputies S.B. Havrish and
others (no. 4105, of 4 September 2003 –CDL(2003)80); and the third Draft Law
on amendments, prepared by Parliamentary Deputies S.B. Havrish and others (no. 4180
of 19 September 2003 –CDL(2003)81). The three Draft Laws on amendments have
also been submitted to the Constitutional Court of Ukraine for opinion.
7. The Venice Commission invited Mms Flanagan and Thorgeirsdottir, and Messrs Bartole
and Tuori to act as rapporteurs on these draft laws. As the revised proposal
submitted to the Verkhovna Rada by the President of Ukraine had been withdrawn,
the present opinion, based on the comments by the rapporteurs (CDL (2003) 94,
96, 98 and 95 respectively) concerns the three Draft Laws prepared by the
Parliamentary Deputies and submitted to the Verkhovna Rada in July and
September 2003. It was adopted by the Commission at its 57th Plenary
Session on 12-13 December 2003.
I. Background
8.
The constitution that is currently
in force in Ukrainewas adopted on 28 June 1996.
It has established a presidential-parliamentary type of institutional regime.
The national system of governance is comprised of three main institutions: the
Parliament (Verkhovna Rada), the highest legislative body, made up of 450
deputies elected for four years; the President, who is the Head of State and
the Chief Executive, elected for five years; the Cabinet of Ministers led by
the Prime Minister, who is appointed by the President and approved by the
Verkhovna Rada. The President, on the proposal of the Prime Minister, appoints
the members of the Cabinet.
9.
Leonid Kuchma, the President of Ukraine, has been in power since 1994.
Soon after being re-elected
President in November 1999, L. Kuchma launched a first initiative to amend the
1996 Constitution. Besides the President, both parliamentary factions and
individual deputies have repeatedly denounced the existing constitutional
system, proposing radical amendments to the existing constitution.
10.
In conformity with the Constitution (Articles 154 and 159), a
draft law on amendments to the constitution may be submitted to the Verkhovna
Rada by the President or by no fewer than one-third of the constitutional
composition of the Verkhovna Rada. A draft law on amendments will be considered
by the Verkhovna Rada upon an opinion of the Constitutional Court of Ukraine
declaring compliance of the draft law with the requirements of Articles 157 and
158 of the Constitution. Room for the Court’s discretion is however limited,
given that the Constitution specifies the exact criteria on which the review
should be based. Article 157 prohibits any amendment to the Constitution that
can be detrimental to the country’s independence or territorial integrity, or
entails the abolition or restriction of human rights and freedoms guaranteed.
As to the Article 158, it sets forth a number of technical restrictions.
11.
At present, the Constitutional Court has delivered opinions on two of
the three draft laws submitted for its consideration. In a decision of 30
October 2003,it declared two provisions of Draft Law no. 3027-1 to be contrary to Articles
157 and 158 of the Constitution. Draft
Law no. 4180 was declared constitutional although the Court expressed some
hesitation as to a number of other provisions proposed.
12.
The Ukrainian
authorities have expressed their determination to meet European standards and criteria that underpin
true democracy.
The commitment undertaken by Ukraine when it ratified the European Convention on
Human Rights (hereinafter: ECHR) was to do its utmost to ensure an effective political
democracy for the further realisation of the guaranteed human rights and
freedoms. The present opinion will examine whether the proposed amendments to
the 1996 Constitution represent a clear
commitment to these goals.
II. General
remarks
13.
The three
draft laws submitted to the Verkhovna Rada propose numerous amendments to the
text of the 1996 Constitution (CDL (2003) 86). Those amendments involve a redistribution of the
powers of the President, the Verkhovna Rada and the Cabinet and are directed
towards a more parliamentary form of government and a less presidential one.
14.
The choice between a presidential and a parliamentary system is a
political one to be freely made by each single state. However, the system
chosen should be as clear as possible, and the provisions should not create
room for unnecessary complications and political conflicts. If a
presidential system is chosen, certain minimum requirements of parliamentary
influence and control should be fulfilled. In a parliamentary system, in turn,
basic requirements arising from the principle of the separation of powers
should be respected.
15.
The Commission
will examine the main amendments proposed in the draft laws that give cause for
concern. It should be noted at the outset, that the schemes of the draft
constitutions are very difficult to follow and related provisions are often
scattered throughout the text. This difficulty
is exacerbated by the incomplete system of numbering which makes it difficult
to refer to related provisions where necessary.
Such difficulties are not conducive to a widespread general awareness of
the terms of the Constitution.
1st
Draft Law on amendments to the Constitution of Ukraine no. 3027-1 (CDL (2003) 79)
I. People’s Deputies’
mandate
16.
The Draft Law on amendments to the Constitution of Ukraine no. 3027-1 (hereinafter: the
Draft Law) provides in Article 78 that People’s Deputies shall not have another
representative mandate, whether it be a position in the civil service or
another official position in bodies of state power or in institutions or
agencies arising from such bodies. This type of prohibition appears regularly
in the laws of other states and is acceptable as it reasonably excludes an
occupation incompatible with that of being a member of parliament or dual
representation.
17.
The draft Article also prohibits People’s Deputies from engaging “in
entrepreneurial activity or other activity on a remunerative basis (except
teaching, scholarly and creative activity), and prohibits membership of a
governing or steering body of an enterprise, association or organisation that
aims to gain profit”. In the event
of a Deputy being found to be engaged in incompatible activity, he or she must
resign either from that activity or from being a Deputy. These latter
categories of prohibited activity cover a wide range of activity in which the
majority of people running for election would be engaged in one form or
another. It is unclear whether the list
of prohibited activities is intended to encompass holding shares in commercial
companies, and the meaning of “entrepreneurial activity” is uncertain.
18.
Such a broad prohibition might prove to be a significant disincentive to
potential candidates. Whilst it is a
matter of policy to be decided by individual states what category of activity
is incompatible with being a member of parliament, nonetheless it would be
important to ensure that activities deemed incompatible are not such as to
dissuade a significant section of the population from running for election.
Other parliamentary democracies have rules requiring their members of
parliament to declare interests that have the potential to compromise
independence, with appropriate sanctions where rules are breached. Whilst these regimes are not foolproof in
removing all conflicts of interest that arise or situations that compromise
independence, neither would the rules in the proposed draft Article 78. Rules
requiring declarations of interests would not have the possible disadvantages
described above where almost all gainful or entrepreneurial activity is
prohibited.
19.
In accordance with the proposed amendments, a Deputy’s mandate would be
terminated on his or her leaving or a failure to join the parliamentary faction
from which he or she was elected (Article 81.3). Whilst the idea of having this
provision in the Draft Law is presumably to promote stability and the
effectiveness of the governing party or bloc in circumstances where
fragmentation of parliamentary blocs is a problem, it would also have the
effect of weakening the Verkhovna Rada itself by interfering with the free and
independent mandate of the deputies, who would no longer necessarily be in a
position to follow their convictions and at the same time remain a member of
the Parliament.
20.
In this regard, the Commission recalls its opinion on the Ukraine
constitutional reform project of 2001,
in which it stressed that linking “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…bearing in mind that Members of Parliament are supposed to
represent the people and not their
parties.” The oath to be taken by Deputies contained in Article 79 expresses
this clearly. Furthermore, such a rule would “put the parliamentary bloc or
group in some ways above the electorate which […] is unable to revoke
individually a parliamentary mandate conferred through election”.
21.
The requirement that the termination of the deputy’s mandate be decided
by a court judgement does not remove the problematic character of the
provision. Judges should not be entrusted with the power of adopting
decisions of a political nature that imply the use of political criteria of judgement.
22.
The Commission
therefore strongly recommends that this proposed provision be removed from the
Draft Law.
23.
According to new Article 81.1 (5), a deputy would lose his or her
mandate on the basis of being absent from the Verkhovna Rada’s meetings for
four months without a valid reason. Such a sanction seems rather severe,
particularly in the absence of any preceding lesser sanction.
24.
The Draft law also proposes that the
operational rules of procedure of the Verkhovna Rada are no longer established
by law as stipulated in Article 82.5 of the present Constitution.
II. The
Relations between the President, the Cabinet and the Verkhovna Rada
25.
The Commission welcomes the proposed Article 113.2 stating that the Cabinet
of Ministers of Ukraine would be responsible to the Verkhovna Rada and not to
the President as is the case according to the current provision. This change
would be in line with the proposed amendments concerning the appointment and
dismissal of the Ministers.
a. Appointment of the Prime Minister
26.
According to the present Constitution, the President appoints the Prime
Minister with the approval of the Verkhovna Rada. Draft Article 85.1 (12)
states that the Verkhovna Rada “on a proposal of the President” would
appoint the Prime Minister (new Articles 106.9 and 114). The Commission
welcomes these changes, as they would promote the move towards more of a
parliamentary system.
27.
New Article 114 requires the President to propose for the post of
Prime Minister :
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the candidate nominated by the largest party (or
electoral bloc of parties) or,
-
if the largest party or electoral bloc refuses to
nominate a candidate, the candidate nominated by the second largest party or
electoral bloc.
If these candidates are rejected by the Verkhovna Rada,
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the candidate nominated by a parliamentary coalition
representing the majority of the Verkhovna Rada.
28. The President would not appear to have any discretion to depart from the
prescribed procedure. The provisions on
the procedure of nomination would allow the appointment of a Prime Minister who
is not the leader of the first (largest) political party. On the other hand,
the support of a strong political party or coalition with a majority of seats
in the Parliament might secure the Prime Minister’s leadership of the
executive.
29. Such a procedure seems indeed rather
complicated. This may however be understandable, considering the difficulties Ukraine has
experienced in the past in the formation of workable political coalitions.
30.
The proposed procedure of appointment also raises the question of the
possible consequences for the Prime Minister - and Cabinet - thus chosen and
supported by a particular majority at the time of appointment, in case of loss
of the support of that majority at a later stage or of being supported by a
different majority of the Verkhovna Rada. In accordance with the proposed
amendments, the power of dismissal of the Prime Minister is given to the
Verkhovna Rada alone (Article 85.1(12) and Article 106.9).
The issue of responsibility of the Cabinet may be considered by the Verkhovna
Rada on the proposal of no fewer deputies than one-third of its constitutional
composition and a resolution of no confidence may be adopted by the majority of
the constitutional composition of the Rada (Article 87.1 of the 1996
Constitution). These modifications seem in line with the aim of the Draft Law
in moving towards a stronger parliamentary system. However, given the
particular context of the Ukrainian political situation, it might be useful to
provide for more precise rules on the resignation of the Prime Minister and the
Cabinet’s continuance in office.
b.
Formation of the Cabinet
31.
The Verkhovna Rada approves the composition of the Cabinet (with the
exception of four ministers) appointed on the proposal of the Prime Minister,
and has the power to dismiss individual members on the submission of the Prime
Minister (Article 85.1 (12)). Whilst the aim of this provision is presumably to
promote the parliamentary character of the system, it could have the effect of
complicating the nomination procedure.
32.
The proposed procedure of nomination differs for four key ministers, namely the Ministers of Internal
Affairs, Emergency Situations including the consequences of Chernobyl, Foreign Affairs and Defence
(Article 114.7). They would be appointed upon agreement by the President. Such
a difference might threaten the cohesion of the government and the exercising
of its policy, especially given the specific context of Ukrainian political
system where the relations between the President and the Prime Minister
regularly become highly competitive. Considering the powers of the President in the respective fields - although further
complicating the procedure for forming the Cabinet - this difference may be
justified only to a certain extent.
33.
Regarding the work of the Cabinet, the Commission notes that the new
Article 113.3 provides that the Cabinet would be guided in its activity not
only by the Constitution, the laws and Presidential Acts, but also by “the
resolutions of the Verkhovna Rada”. It should be stressed that if the
proposed addition means that the Verkhovna Rada would have a general power to
pass resolutions binding the Cabinet, such a power could easily lead to
confusion and to a contradiction of the principle of the separation of powers.
c.
Appointment and dismissal of certain high
officials
34.
The appointment and
dismissal of certain important heads of public bodies require the approval of
the Verkhovna Rada. For example, according to draft Article 85.1(24), the
Verkhovna Rada has to consent to appointment and dismissal by the President, of
the Head of the Antimonopoly Committee, the Chair of the State Committee on
Television and Radio Broadcasting and the Head of the Security Service. The
Verkhovna Rada would also have the power to express non-confidence in the
persons appointed to their offices with its approval (Article 85. 1(37)). Such
a power would entail a kind of political parliamentary responsibility, which is
alien to the functioning of a modern administrative system.
35.
The Commission is of the opinion that if the proposal is to be adopted,
the decision on appointment and dismissal of the aforementioned officials
should be taken by a special, qualified majority. The offices concerned are
characterised by the neutrality of their functions and require the independence
and impartiality of their holders. Persons eligible for appointment to the offices concerned cannot
be identified with the majority or with one or another political party. The requirement of the qualified, special
majority would guarantee the fairness of their election and of the bodies they are supposed to chair.
36.
Draft Article 90.2 (1) and (2) clearly defines the cases in which the
President may dissolve the Verkhovna Rada. Such a provision is welcomed from
the point of view of constitutional and political stability.
III. Right of
the Verkhovna Rada to interpret laws
37.
According to draft Article 85.1(3), the Verkhovna Rada would have the
power not only to adopt laws, but also to interpret them. In practice, draft texts put before national
assemblies contain not only the proposed legal text, but also the legislator’s
motives for the proposal. These motives, together with discussions in
the parliament and its committees can be of significance in a subsequent
interpretation of the legal acts when adopted by the Parliament. The proposed amendment risks invading on the
sphere of the judiciary. Judges use statutory interpretation to protect rights, for example by interpreting
‘value-laden’ expressions in statutes or by the use of presumptions. The power
of the Verkhovna Rada to interpret laws, whose practical scope remains
unclear, would contradict the principle of the separation of powers.
38.
In its decision of 30th October 2003, the Constitutional Court of Ukraine considered
transfering of the power to interpret laws from the Constitutional Court to the Verkhovna Rada contrary to the
Constitution in force. In line with the Constitutional Court’s decision, the Commission strongly
recommends the withdrawal of the proposed amendment from the Draft law.
IV. Election
of judges
39.
In accordance with the proposed amendments, all judges, except those of
the Constitutional Court, would be elected by the Verkhovna Rada for a period of 10 years,
with the right to re-election (Article 128). The Commission is highly concerned
with such a proposal, and recalls that time-limited appointments as a general
rule can be considered a threat to the independence and impartiality of judges.
In its Opinion on standards concerning the independence of the judiciary and
the irremovability of judges, the Consultative Council of European Judges
(hereinafter: CCJE) has stated: “European practice is generally to make
full-time appointments until the legal retirement age”.
40.
The CCJE also stressed: “when tenure is provisional or limited, the
body responsible for the objectivity and the transparency of the method of
appointment or re-appointment as a full-time judge are of especial importance.
The responsible body should decide exclusively on the basis of the professional skills of the concerned persons
and, therefore, on the basis of technical criteria only. While designating the
Parliament as a body entrusted with the task of electing and re-electing
judges, the proposed amendments do not provide guarantees that the choices will
not be politically biased. Such provision is therefore contrary to the
principles of a free and democratic government and to the
ECHR.
41. The Commission strongly recommends that the
proposed amendment be withdrawn from the Draft law.
V. Procurator
General
42.
On the basis of draft Article 85.1(25), the power of appointment and
dismissal of the Procurator General is given to the Verkhovna Rada on
submission of the President. The establishment of a requirement of
political responsibility in the relationship between the Procurator General and
the Verkhovna Rada (Article 122.1) may endanger the independence that the
exercise of the functions of the Procurator General presupposes.
43.
The Procurator, by
virtue of draft Article 121.5, is also given a significant additional role of “supervision
of the observance of human and citizens’ rights and freedoms and the fulfilment
of laws by bodies of executive power and by bodies of local self-government”.
In this respect, the Commission recalls that in its Resolution 1244
(2001) on the Honouring of Ukraine’s Obligations and Commitments, the
Parliamentary Assembly of the Council of Europe invoked the commitment of the
Ukrainian authorities to change the role and functions of the Prosecutor’s
Office (particularly with regard to the exercise of a general supervision of
legality) with the aim to ensure its conformity with the European standards.
Later on, in its Resolution 1346 (2003), the Parliamentary Assembly expressed
its deep concern with the functioning of the Prosecutor’s Office, and more
particularly, with regard to its independence and interference with the
legislative and executive power.
44.
The Commission is highly concerned with the proposed amendment as the
extension of the power of the Prosecutor can be considered a step backward not
in line with the historical traditions of the procuracy in a state
subject to the rule of law. In
a state like Ukraine where the purported aim is to
enhance an effective political democracy, it is of paramount importance that
the institution that supervises compliance with the rule of law is
non-political. A separate office of an Ombudsman would therefore be
highly preferable.
45.
Draft Article 106.1(16) also extends the role of the Procurator General
where the Constitutional Court finds a law suspended by the
President to be unconstitutional. In such a situation, the President may “apply
to the Procurator General”, but no elaboration of the function of the
Procurator General is given.
46.
Bearing in mind Article 156.1 of the Constitution in force, the
proposed amendment on the extension of the role of the Procurator General might
require the organisation of national referendum for its adoption.
VI. Media
47.
Given the pre-eminent role of the media in a democratic society, any
proposed amendment in the draft law that may have an impact on the freedom of the
media merits to meticulous scrutiny.
48.
Article 34 of the Constitution in force 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 any other means of his or her choice.
49.
The treatment of the press by the member states of the Council of
Europe must measure up to the principles of Article 10 of the ECHR 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.
50.
According to draft Article 85.1 (24), the Chairman of the State Committee on Television and Broadcasting and
the Head of the National Security Council would be appointed and dismissed by
the Verkhovna Rada, on the nomination by the President (see supra under
35). The Verkhovna Rada would also have the authority to issue a vote of no
confidence to persons appointed to their position upon consent of the Rada,
which would lead to their resignation from the position (Article 85.37).
Furthermore, draft Article 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. 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.
51.
In this regard, the Commission recalls the Council of Europe Committee of
Ministers’ recommendation according to which: “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”.
2nd
Draft Law on amendments to the Constitution of Ukraine no. 4105
(CDL (2003) 80)
I.
Verkhovna Rada – term of
authority
52.
Article 76.5 of the Draft Law on amendments to the Constitution of Ukraine no. 4105 (hereinafter: the Draft Law)
proposes to increase the parliamentary term of the Verkhovna Rada from the
present four to five years. There is no established European rule as to the
term of a national Parliament. In most Central and Eastern European states the
parliamentary term is 4 years. In some other countries like France, Italy or Turkey, the parliamentary term is 5 years.
II. National
Deputies’ mandate
53.
Draft Article 78.2 provides that National Deputies shall not have another
representative mandate, whether it be in the civil service or any other paid
official position “except for the offices of ministers and chief executives
of central bodies of executive power […]”. The possibility for ministers to
serve in Parliament appears also in the laws of some other states and is not in
itself contrary to a
parliamentary system of governing. Yet, making an exception for members of
parliament to be chief executives of central bodies of executive power
infringes the distinction between the executive and the legislative power.
54.
The draft Article also prohibits National Deputies from engaging in “any
remunerative or business activities (except academic, research and artistic
activities)” and prohibits membership of a governing or steering body “of
an enterprise or any profit-making institution”. In the event of a Deputy being found to be
engaged in any incompatible activity, he or she must resign either from that
activity or from being a Deputy. These latter categories of prohibited activity
cover a wide range of activity in which the majority of people running for
election would be engaged in one form or another. It is unclear whether the list of prohibited
activities is intended to encompass holding shares in commercial companies, and
the meaning of “business activities” is uncertain.
55.
Such a broad prohibition might prove to be a significant disincentive to
potential candidates. Whilst it is a
matter of policy to be decided by individual states what category of activity
is incompatible with being a member of parliament, nonetheless it would be
important to ensure that activities deemed incompatible are not such as to
dissuade a significant section of the population from running for election.
Other parliamentary democracies have rules requiring their members of
parliament to declare interests that have the potential to compromise
independence, with appropriate sanctions where rules are breached. Whilst these regimes are not foolproof in
removing all conflicts of interest that arise or situations that compromise
independence, neither would the Rules in the proposed draft Article 78. Rules
requiring declarations of interests would not have the possible disadvantages
described above where almost all gainful or entrepreneurial activity is
prohibited.
56.
In accordance with the proposed amendments, a deputy’s mandate would be
terminated on his or her leaving, not joining or being dismissed from the
parliamentary faction from which he or she was elected (Article 81.2 (7)). The
relevant decision would be taken by the highest steering body of the respective
political party (election bloc of political party). Whilst the idea for having this provision in
the Draft Law is presumably to promote stability and the effectiveness of the
governing party or bloc in circumstances where fragmentation of parliamentary
blocs is a problem, it would also have the effect of weakening the Verkhovna
Rada itself by interfering with the free and independent mandate of the
deputies, who would no longer necessarily be in a position to follow their
convictions and at the same time remain a member of the Parliament.
57.
The proposed procedure would also give the parties the power to annul
electoral results. In this regard, the Commission recalls its opinion on the
Ukraine constitutional reform project of 2001,
in which it stressed that linking “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…bearing in mind that Members of Parliament are supposed to
represent the people and not their
parties.” The oath to be taken by Deputies contained in Article 79 expresses
this clearly. Furthermore, such a rule would “put the parliamentary bloc or
group in some ways above the electorate which […] is unable to revoke
individually a parliamentary mandate conferred through election”.
58.
The Commission therefore strongly recommends to withdraw the proposed
provision from the Draft Law.
59. The Draft law also proposes that the
operational rules of the procedure of the Verkhovna Rada are no longer
established by law as stipulated in Article 82.5 of the present Constitution
(new Article 83.4).
III. The Relations between the President, the
Cabinet and the Verkhovna Rada
a. Appointment of the Prime Minister
60.
The
Draft law provides for the appointment of the Prime Minister by the Verkhovna
Rada on a proposal submitted by the President. The candidate for the Prime
Minister is to be nominated by “the coalition of deputies’ factions and groups of deputies” representing a
parliamentary majority. Such a coalition is to be formed following “the results of elections and on the
basis of coordination and bringing together of political positions”. The formation
of the coalition should take place within a month after the opening session of
a newly elected Verkhovna Rada or the termination of the activities of a
previous coalition. Complementary provisions on formation and organisation of
the coalition, as well as of the termination of its activities would be included
in the Rules of Procedure of the Verkhovna Rada.
61. According to Article 83.5, the coalition
which nominates the candidate for the office of the Prime Minister is also
supposed to “form” the Cabinet and
to be “responsible for
its performance”. What these expressions mean remains unclear.
62. One can assume that the central idea behind
these provisions is to oblige the Verkhovna Rada to form a majority and a
government as a basis for stability. In this respect, the Commission recalls
that the Constitution of Ukraine guarantees the political parties the freedom
of choice and decision in conformity with European standards. In addition,
whether such a formalised procedure for forming a parliamentary majority would
contribute to enhancing political stability is very uncertain. At any rate, if
the proposal is to be adopted, the role and functioning of the “coalition”
should be more precisely regulated in the Constitution itself, and not be left
to a statute of lower rank.
b. Formation
of the Cabinet
63.
Regarding most Cabinet ministers, the Verkhovna Rada approves the
composition of the Cabinet nominated by the Prime Minister (85.1 (12)). The
amended constitution would draw a distinction between the procedure in relation
to the Ministers for Defence and Foreign Affairs and the remainder of the
Cabinet. The Verkhovna Rada on the President’s nomination would appoint the
Ministers for Defence and Foreign Affairs. The Verkhovna Rada would also have
the power to terminate the authority of these persons (Article 85.1 (12)).
64.
The nomination procedure and differences in status for such an important
political organ as the Cabinet of Ministers raise concerns with regard to the
necessary cohesion of the Cabinet and risk reducing the authority of the Prime
Minister (Article 114). The reasons behind the proposed amendments are more
questionable than those behind the Draft Law no. 3027-1. Both the President and the Prime Minister
would be elected by the Parliament. Any
such provision needs to be clearly
justified.
65.
The Commission also notes that proposed amendments give the power of
initiating the procedure of no confidence in the Cabinet also to the President
(Article 87.1). Such a proposal does not seem coherent with the aim of
diminishing powers of the president and strengthening the parliamentary traits
of governing in Ukraine.
c.
Appointment and dismissal of some high officials
66.
The power of appointment and dismissal of some important heads of public
bodies is altered. For example, under draft Article 85.1(12) the President’s
existing power of appointment of the Head of the Antimonopoly Committee, the
Chair of the State Committee on Television and Radio Broadcasting and the Chair
of the State Property Fund is given instead to the Verkhovna Rada on the
nomination of the Prime Minister. The President would keep the authority to
nominate the Head of the National Security Service.
67.
The Commission is of the opinion that if the proposal is to be
adopted, the decision on appointment and dismissal of the aforementioned
officials should be taken by a special, qualified majority. The concerned offices
are characterised by the neutrality of their functions and require the
independence and impartiality of their holders. The persons eligible for the
mentioned offices cannot be identified with the majority or with one or another
political party. The requirement of a qualified, special majority could guarantee
the fairness of their election and of the bodies they are supposed to chair.
IV. Election
of the President
68. The most significant amendment in the Draft
Law is contained in new Article 103 that would have the President elected by
two-thirds of the Verkhovna Rada in a secret ballot. This would replace the
current constitutional provision that the citizens of Ukraine directly elect the President. The President would
continue to be elected for a five-year term.
69. A decision to alter the way of election of
the President is a political one. Nevertheless, the Commission notes that
whether elected directly by the citizens of Ukraine or indirectly by the Verkhovna Rada, the President
would retain the same degree of independence, being removable from office only
in accordance with the provisions of Articles 108, 109, 110 and 111. The powers
of the President terminate prematurely only on resignation, inability to
perform his or her role for reasons of health, removal by impeachment for state
treason or another crime or on death.
None of these provisions is amended by the Draft Law. The President
would also retain certain powers that do not seem congruous with the position
an indirectly elected president traditionally has in a parliamentary system of
governing.
70. It is also noted that the Verkhovna Rada
would elect the President by secret ballot. The current Constitution does not
otherwise provide in any way on the issue whether ballots should be open or
secret. The issue of whether election of the President should be by secret
ballot or not is a significant matter of policy. There are precedents in other
constitutional regimes for a secret ballot being used for election of
individuals to positions in parliament and, more often, for occasional
particularly sensitive votes.
V. Procurator
General
71.
By draft Article 85.1(25) the power of appointment and dismissal of the
Procurator General is given to the Verkhovna Rada on submission of the
President. The establishment of a requirement of political
responsibility in the relationship between the Procurator General and the
Verkhovna Rada (Art. 122 par 1) may endanger the independence that the exercise
of the functions of the Procurator General presupposes. As in the case of the
appointment and dismissal of certain other high officials, a special, qualified
majority should take the decision on appointment and dismissal of the
Procurator General.
72.
The Procurator, by virtue of draft Article 121.5, is also given a
significant additional role of the “supervision of the observance of human
and citizens’ rights and freedoms and the fulfilment of laws by bodies of
executive power and by bodies of local self-government”. In this
respect, the Commission recalls that in its Resolution 1244 (2001) on the
Honouring of Ukraine’s Obligations and Commitments, the Parliamentary Assembly
of the Council of Europe invoked the commitment of the Ukrainian authorities to
change the role and functions of the Prosecutor’s Office (particularly with
regard to the exercise of a general supervision of legality) with the aim to
ensure its conformity with the European standards. Later on, in its Resolution
1346 (2003), the Parliamentary Assembly expressed its deep concern with the
functioning of the Prosecutor’s Office, more particularly, with regard to its
independence and interference with the legislative and executive power.
73.
The Commission is highly concerned with the proposed amendment, as the
extension of the power of the Prosecutor can be considered a step backward not
in line with the historical traditions of the procuracy in a state of
law. In a state like Ukraine where the purported aim is to
enhance an effective political democracy, it is of paramount importance that
the institution that supervises compliance with the rule of law is
non-political. A separate office of an Ombudsman would therefore be
highly preferable.
74.
Having in mind Article 156.1 of the Constitution in force, the
proposed amendment on the extension of the role of the Procurator General might
require the organisation of the national referendum for its adoption.
VI. Election
of judges
75.
In accordance with the proposed amendments, all judges except the judges
of the Constitutional Court, would be elected by the Verkhovna Rada for a period of 10 years,
with the right to re-election (Article 128). The Commission is highly concerned
with such a proposal, and recalls that the time-limited appointments as a
general rule can be considered a threat to the independence and impartiality of
judges. In its Opinion on standards concerning the independence of the
judiciary and the irremovability of judges, the Consultative Council of
European Judges (hereinafter: CCJE) has clearly stated: “European practice is
generally to make full-time appointments until the legal retirement age”.
76.
The CCJE also stressed: “when tenure is provisional or limited, the
body responsible for the objectivity and the transparency of the method of
appointment or re-appointment as a full-time judge are of especial importance.
The responsible body should decide exclusively on the basis of the professional
skills of the concerned persons and, therefore, on the basis of technical criteria only. While designating
the Parliament as a body entrusted with the task of electing and re-electing
judges, the proposed amendments do not provide guarantees that the
choices will not be politically biased. Such provision is therefore contrary to
the principles of a free and democratic
government and to the ECHR.
77. The Commission strongly recommends the
withdrawal of the proposed amendment from the Draft law.
78. Regarding the appointment of judges of the
Constitutional court, one-half of the judges would be appointed by the
President and one-half by the Verkhovna Rada (new Article 148. 2). In the
Commission’s view, the proposal to withdraw the right to nominate one-third of
the constitutional judges from the High Council of Judges is highly
criticisable as it entails the risk of the possible politicising of this
important judicial body. If such a proposal is to be adopted, it should at
least provide for the parliamentary election of the constitutional judges by a qualified, special majority. Such a provision would oblige the majority
and the minority in the Parliament to
find an agreement in the selection of
the constitutional judges and would ensure a more balanced membership of the Court.
79.
Having in mind Article 156.1 of the Constitution in force, the
proposed amendment on the election of the judges of the Constitutional court
might require the organisation of the national referendum for its adoption.
VII. Media
80.
Given the pre-eminent role of the media in a democratic society, any
proposed amendment in the draft law that may have an impact on the freedom of
the media merits meticulous scrutiny.
81.
Article 34 of the Constitution presently in force 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 any other means of his or her choice.
82. The treatment of the press by 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.
83.
According to draft Article 85.1 (12), the Chairman of the State Committee on Television and Broadcasting would
be appointed by the Verkhovna Rada, on
nomination by the Prime Minister. The Verkhovna Rada would also have the
authority to terminate the authority of persons appointed to their position
upon its consent.
84.
In this regard, the Commission recalls the Council of Europe Committee of
Ministers’ recommendation according to which: “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. Transitional arrangements regarding
elections
85.
The Draft Law also contains provisions on the entering into force of the
constitutional reform. According to new Chapter XVI to be added to the
Constitution, the presidential elections due in 2004 (in conformity with the
1996 Constitution) would be held in conformity with the existing provisions (by
universal suffrage). However, the presidential term would be curtailed with the
new President being
elected by the new Verkhovna Rada in 2006. Thereafter, both the ordinary terms
of the Verkhovna Rada and President would be for 5 years.
86.
Furthermore, the proposed transitional provisions also establish that in 2006,
the Verkhovna Rada shall be elected following the “principles of proportional system, whereby National Deputies shall be
elected in the multi-mandate national election district according to electoral
list of candidates nominated by political parties, election blocs of political
parties in line with the law”. Such ad
hoc constitutional provisions should be replaced by permanent provisions in
Chapter IV of the Constitution.
87. Transitional arrangements of this kind can
often present political difficulties. The constitutional reforms and their
entering into force should not be subject to short-term political calculations.
3rd Draft Law
on amendments no. 4180 (CDL (2003) 81)
88.
The Draft Law on amendments no. 4180 is identical to the Draft Law on
amendments no. 4105 except for transitional provisions regarding the scheduling
of elections and entering into force of the constitutional reform. The
preceding comments on the amendments proposed by the Draft Law no. 4105
therefore also apply to this Draft law.
Transitional
provisions regarding elections
89.
According to new Chapter XVI to be added to the Constitution, the
presidential elections due in 2004 would take place under the new provisions
and therefore the new President would be elected by the Verkhovna Rada. A
further presidential election would take place in 2006, and the parliamentary
elections, in 2007.
90.
It should be born in mind that the present Verkhovna Rada was elected in
2002 for a four year term. The Commission have strong doubts as to whether the
decision taken by the Verkhovna Rada itself to prolong its own term of
authority may be considered to conform to European democratic standards.
91. Furthermore, the proposed transitional
provisions also establish that in 2007, the Verkhovna Rada shall be elected
following the “principles of proportional system, whereby National Deputies
shall be elected in the multi-mandate national election district according to
electoral list of candidates nominated by political parties, election blocs of
political parties in line with the law”. Such ad hoc constitutional
provisions should be replaced by permanent provisions in Chapter IV of the
Constitution.
92. Transitional arrangements of this kind can
often present political difficulties.
The constitutional reforms and their entering into force should not be
subject to short-term political calculations.
CONCLUSION
93.
Ever since the highly controversial All-Ukrainian referendum in 2000, Ukraine has been confronted with a power
struggle between the different State organs. It is therefore understandable
that constitutional reform remains very much on the agenda and the Commission
can only welcome and support efforts aimed at strengthening the position of
Parliament with respect to the President. All drafts examined try to achieve
this aim. However, any reformed system of government chosen should be as clear
as possible, and the provisions should not create room for unnecessary
complications and political conflicts. The drafts examined do not really
succeed in establishing such a clear and coherent system.
94.
Draft Law no. 3027-1 proposes a number of amendments that go in the
desired direction of providing for additional powers to the Verkhovna Rada.
However, the provisions on the appointment of the members of Government may
lead to conflicts between the organs of state power. Other provisions, such as
those on the status of the deputies, the election of judges and on extending
the powers of the Prosecutor’s Office are problematic from the point of view of European democratic standards.
95.
Regarding Draft Laws no. 4180 and no. 4105, the proposal to adopt a system of
indirect election of the Head of the State would in principle be conducive to
establishing a parliamentary system of government. It is therefore surprising
that these drafts maintain stronger powers for the President than provided for
by Draft no. 3027-1. The logic behind a system of dividing executive power between
two organs, the President and the Government, both deriving their legitimacy
from Parliament is not apparent and seems not conducive to effective
governance. Moreover, these drafts also contain similar problematic provisions
on the judiciary, the public prosecutor’s office and the status of deputies as
draft no. 3027-1.
96.
As regards particular aspects of the drafts, the Commission strongly
recommends:
-
ensuring
that the provisions on the National Deputies do not link an individual Deputy
to membership of a parliamentary faction or bloc in a way infringing his or her
free and independent mandate;
-
withdrawing
the proposed amendment on the limited tenure of judges; and
-
ensuring
the conformity of the role and functions of the Prosecutor’s Office with
European standards.
97.
The Commission recognises and welcomes the efforts in Ukraine to reform the system of government
in a way bringing Ukraine closer to European democratic
standards. The precise solutions chosen in the various drafts do not yet seem
to have attained that aim and introduce other amendments to the Constitution
that would appear to be a step backwards. Further work and discussion seem to
be required, and the Venice Commission remains at the disposal of the Ukrainian
authorities for further co-operation in the field of constitutional reform.
