EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on the constitutional
situation
in ukraine
Adopted by the Venice Commission
at its 85th Plenary Session,
Venice (17-18 December 2010)
On the basis of comments by:
Ms Angelika NUSSBERGER (Substitute Member, Germany)
Mr George PAPUASHVILI (Member, Georgia)
Mr Evgeni TANCHEV (Member, Bulgaria)
Mr Kaarlo TUORI (Member, Finland)
Mr Didier MAUS (Expert, France)
I Introduction
1. By letter dated 21 October 2010, Mr Dick Marty, Chair of the
Monitoring Committee of the Parliamentary Assembly of the Council of Europe,
asked the Venice Commission to give an opinion on the constitutional situation
in Ukraine.
2. The Venice Commission invited Ms A. Nussberger, and Messrs D. Maus,
G. Papuashvili, E. Tanchev and K. Tuori to act as rapporteurs.
3. On 29 and 30
November 2010, the Venice Commission delegation travelled to Ukraine to meet with the different authorities concerned, including the Constitutional Court, the
Presidential Administration, the Minister for Foreign Affairs, the Minister for
Justice, the Supreme Court as well as the representatives of the opposition.
The present Opinion is based on the members’ and experts’ comments as well as
on the information obtained during the study visit to Ukraine.
4. The present
Opinion was adopted by the Venice Commission at its 85th Plenary
session (Venice, 17-18 December 2010).
II. Scope of this Opinion
5. The present
request has to be seen against the background of the recent constitutional
developments in Ukraine. On 30 September 2010, the
Constitutional Court of Ukraine adopted a decision whereby it declared the Law
on the amendment to the Constitution No. 2222, adopted on 8 December 2004,
unconstitutional and required that laws subsequently
adopted be brought in line with the previous Constitution of 1996.
6. The Venice Commission was asked to give its Opinion on:
·
the constitutional
situation in Ukraine, following the Constitutional Court’s Judgment of 30
September 2010;
·
the measures to be taken
to bring the new constitutional framework in line with European standards and
norms.
7. The aim of the present assessment therefore, is not to assess
the Constitutional Court’s Decision, but to examine its consequences and point
towards the future, in particular towards a more balanced and coherent
constitutional reform.
III. Constitutional
developments in Ukraine since 1996
8. The recent constitutional history of Ukraine is marked by the
political confrontation and competition between various groups within society.
Back in 1996, despite its shortcomings from a legal point of view, the adoption
of the Constitution was seen as an important step in the establishment of the
country’s basic institutional setup and the character of the new state.
9. The 1996 Constitution has
established a presidential-parliamentary type of institutional regime. It provides for a strict separation of powers between the President and
Parliament; both are elected for a fixed four -year term and neither controls
the tenure in office of the other. The Cabinet of Ministers is subordinate to
the President and is accountable to Parliament.
10. In its 1997 Opinion on this text, the Commission said that “While the text establishes a strong executive under the leadership
of a powerful President, checks and balances are present which should prevent
recourse to authoritarian solutions. The principles of the Rule of Law are well
reflected in the text of the Constitution. The setting up of democratic local
government as well as the important role assigned to the Constitutional Court
should contribute to the establishment of a democratic culture in Ukraine”. It also pointed out however, that “several
provisions of the Constitution remain unsatisfactory from a legal point of
view. These inadequacies have political reasons and can be explained by the
fact that it was necessary to reach a political compromise to have the
Constitution adopted”.
11. The Commission thus called on Ukraine to “take into account
the opinion of the Commission as well as the relevant Council of Europe standards” when implementing these provisions of the Constitution. It stressed
that ”The Constitution will have to pass the test of practice and the
difficult economic situation of Ukraine may delay the full implementation of
the new principles and endanger the realisation of the positive achievements of
the text. Particular attention will have to be paid to the adoption of
legislation ensuring that the Transitional Provisions of the Constitution do
not lead to the maintenance of elements of the old system during a considerable
period of time (Conclusions).”
12. In practice however, the 1996 Constitution resulted in a
concentration of powers in the hands of the President and in a constant
legislative-executive confrontation.
13. As from 2003, the Venice Commission has
been in favour of a comprehensive constitutional reform that strengthens the
powers of Parliament, while warning against establishing a system that is not
coherent. In its Opinion on the three draft laws that propose Amendments to the
Constitution of Ukraine, the Commission welcomed and strongly supported “efforts
aimed at strengthening the position of Parliament with respect to the President”,
and underlined that “…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” (§ 93 ).
14. The
Commission, as well as the PACE, were concerned notably about a constant power struggle between the different State organs with which the
country was confronted ever since the highly controversial All-Ukrainian
referendum in 2000. The Law on the Cabinet, drafted to clarify the status,
powers and responsibilities of the Cabinet vis-à-vis the President and
Parliament, became a symbol of executive-legislative deadlock on constitutional
issues.
15. The 1996
Constitution was amended in December 2004 by the Law on amendments to
the Constitution No. 2222. The constitutional changes provided a strong impetus
for transforming the Ukrainian political system from a
presidential-parliamentary system to a more parliamentary one. In its Opinion
on the amendments to the Constitution of Ukraine,
adopted on 8 December 2004, the Commission praised the
positive changes brought about by the amendments, in particular those “increasing
the parliamentary features of the political system”. The previous very
strong powers of the President were weakened in a somewhat unfortunate manner. According to the Commission’s Opinion on the 2004 Constitution “a
number of provisions, such as the rights of legislative initiative conferred on
both the Cabinet and the President, or the President’s role in foreign and
defence policy might lead to unnecessary political conflicts and thus undermine
the necessary strengthening of the rule of law in the country. In general, the
constitutional amendments, as adopted, do not yet fully allow the aim of the
constitutional reform of establishing a balanced and functional system of
government to be attained”.
16. The
Commission thus considered that, “in order to bring the Law on amendments
into compliance with the principles of pluralist democracy and the rule of law,
the Law should be further discussed and some improvements made.”
17. It also pointed out that the constitutional amendments were
adopted too rapidly and with some procedural violations, an opinion largely
shared by many political actors in the country. It thus stressed in its Opinion
that “taking the time necessary for finding a
real consensus among all political forces and the civil society on a
well-balanced and coherent constitutional reform would secure the legitimacy of
the new Constitution and the political system in Ukraine”.
18. The issue of further
constitutional reform remains high on the political agenda ever since.
19. In late 2007, 102 deputies applied to the Constitutional Court
of Ukraine (hereinafter: CCU) requesting it to declare the Law on Amendments to
the Constitution of Ukraine n° 2222 unconstitutional. The authors claimed that
the Law had violated the procedure for its review and adoption as it was
adopted in December 2004 without receiving the obligatory opinion of the
Constitutional Court of Ukraine regarding its conformity with articles 157 and
158 of the Constitution (as required by Article 159 of the Constitution). In its ruling of 5 February 2008, the Constitutional Court of Ukraine stated that when the Law No.
2222 took effect on January 1, 2006, its provisions and clauses became an
integral part of the Constitution, and the Law itself lost its legal force. The Court therefore
rejected the application,
based on its non-conformity with the constitutional petition requirements,
given in Article 39 of the Law on the Constitutional Court.
20. The efforts
to revise the 2004 version of the Constitution continued, and several new draft
amendments to the Constitution were prepared by various political forces in the
country. The Venice Commission was again involved in this process. In 2008, it
adopted an Opinion on the so-called “Shapoval draft Constitution” and a year later, it
gave its legal assessment of the draft constitution presented by the then President Yuschenko. In this Opinion, the Commission welcomed
the improvements contained in the presidential draft with respect to the 2004
Constitution, but considered that it does not seem to attain its main aim of
putting an end to the constant institutional conflicts between the main state
organs. This was due mainly to the fact that this draft also maintained a
semi-presidential system with a double executive and areas of potential
conflict between the President and the Cabinet of Ministers remained.
21. Due to a lack of consensus, in
October 2009, the Verkhovna Rada of Ukraine (Parliament) removed all
proposals for changes to the Constitution from its agenda.
22. In February 2010, Mr
Yanukovich won the presidential elections in the country. However, the
formation of the new Government faced some difficulties due to the fact that
the majority coalition (consisting of President Yanukovych’s Party of Regions,
Mr Lytvyn’s eponymous bloc and the Communist Party) fell seven votes short of a
required majority of 226 members. In early March, the Ukrainian Verkhovna
Rada amended the Law on the
Rules of Procedure of Parliament with respect to the provisions for the
formation of a ruling coalition. The new provisions now stipulate that a
parliamentary majority is established on the basis of the number of individual
MPs that support such a coalition. These changes to the Rules of Procedure
allowed a new governing coalition to be established.
23. This legislative amendment however, seemed to contradict Article
83 of the Constitution according to which the governing coalition in Verkhovna
Rada must be formed by “a coalition of parliamentary factions” and not
individual deputies.
According to the Constitutional Court’s decision on the constitutionality of
Article 13 of the Law on Status of the People’s Deputies of Ukraine, given in June 2008, leaving - or even not joining - a faction of the
political party, on a list of which an MP was elected, is contrary to the Constitution. In the words of the
Court, “staying of a Deputy in a parliamentary faction of the political party
(or the electoral block of parties) on a list of which he or she was elected,
is his or her constitutional duty and not the right” (emphasis added).
24.
However, on 6 April 2010 – deciding upon an appeal from a number of opposition
deputies asking for the official interpretation of Article 83 of the
Constitution
and the review of the constitutionality of Article 59 of the Law on the Rules
of Procedure of Parliament - the CCU seems to have given a
different interpretation on this matter, which goes into the direction of
allowing individual deputies in the Verkhovna Rada to take part
in the formation of a parliamentary coalition..
25. Thereafter, in July 2010, 252 deputies of Ukraine applied to
the Constitutional Court with a request to recognise as non-conforming to the
Constitution the Law on Introducing Amendments to the Constitution No 2222 (hereinafter,
the “Law No.2222”). Again, the ground for this Law to be recognised as
unconstitutional was the fact that it had violated the constitutional procedure
for its adoption (i.e. Article 159 of the Constitution).
26. As mentioned above, on 30 September 2010, the CCU
(hereinafter, “the 30 September Judgment”) issued a Decision declaring Law No.
2222 unconstitutional “due to a violation of the constitutional procedure of
its consideration and adoption”. The main
argument is that the Verkhovna Rada has overstepped its competences
fixed in Article 159 of the Constitution, as it cannot amend the Constitution
without a Constitutional Court opinion. In fact, according to Article 159 of
the Constitution, a draft law on introducing amendments to the Constitution can
only be considered by the Verkhovna Rada “upon the availability of an
opinion of the Constitutional Court of Ukraine on the conformity of the draft
law with the requirements of Articles 157 and 158 of this Constitution”. In
this context, the Constitutional Court may analyse three questions: are human
and citizens’ rights abolished or restricted? Is the revision of the
Constitution oriented toward the liquidation of the independence or violation
of the territorial indivisibility of Ukraine? Have the amendments already been
introduced?
27. The 30th
September Judgment of the Constitutional Court is based exclusively on the
analysis of the differences between Law No. 2222 and Law No. 4180, as only the
latter, but not the former had obtained the opinion by the Constitutional Court.
The Court does not examine whether the amendments could have been declared at
the time as not being conform to the requirements of Articles 157 and 158 of
this Constitution.
28. Based on
the Constitutional Court reasoning in the 30 September Judgment, it seems that
it is the 1996 version of the Constitution that is in force in Ukraine since 1 October 2010.
IV Assessment of the present
constitutional situation
A. Constitutional
Court – The 30 September Judgment
29. It is not
the task of the Venice Commission to review decisions by national
constitutional courts, which are the institutions with the authority to provide
a final interpretation of the Constitution. The Commission therefore refrains
from taking a position on whether this Decision of the Court is justified or
not . Nevertheless, some general remarks seem appropriate.
30. There is no
generally accepted standard in comparative constitutional law regarding the
participation of constitutional courts in the constitutional amendment process.
In its recent Report on Constitutional Amendment, the Venice
Commission noted that while some European countries explicitly provide for such
a possibility,
the posterior
judicial review of adopted constitutional amendments is a relatively rare
procedural mechanism. In some countries, judicial review of constitutional
amendments is in theory possible, but has never been applied in practice. In others, it has
been rejected on the basis that the courts as state organs cannot place
themselves above the constitutional legislator acting as constitutional power.
A system which has firmly rejected judicial review of constitutional amendments
is the French system, under which this is not considered within the competence
of the Conseil Constitutionnel (or any other court), because the
constitutional legislator is sovereign, therefore constitutional amendments
cannot be subject to review by other bodies (themselves created by the
Constitution).
31. While the
Ukrainian Constitution (in its two versions, from 1996 and 2004) explicitly
provides for a mandatory preliminary review of a draft law on
constitutional amendments (see above, paragraph 24), it remains silent as to
the possibility of the CCU to review the constitutional amendments once they
have entered into force. In 2006, an amendment to the Law on the Constitutional Court specifically excluded “laws of Ukraine on introducing amendments to
the Constitution of Ukraine that entered into force” from the jurisdiction
of the CCU.
32.
Nevertheless, such a review was made possible by a decision of the CCU adopted
in June 2008, whereby the Court declared this provision of the Law on the Constitutional Court as unconstitutional.
33. In this
regard, the Venice Commission observed a certain inconsistency in the case-law
of the CCU: as mentioned above, in its Decision adopted just four months
earlier (in February 2008), the CCU considered that once they have entered into
force, the constitutional amendments become an integral part of the
Constitution and the Law on which they are based ceased to exist (see
above, paragraph 19 of the present opinion).
34. The
Commission also noted, with some surprise, that the 30 September Judgment does
not refer to the Decision of February 2008 and does not explain the difference
between the petition of 2007, and the petition of July 2010.
35. It also
considers highly unusual that far-reaching constitutional amendments, including
the change of the political system of the country - from a parliamentary system
to a parliamentary-presidential one - are declared unconstitutional by a
decision of the Constitutional Court
after a period of 6 years. The Commission notes however, that neither the
Constitution of Ukraine nor the Law on the Constitutional Court provide for a
time-limit for contesting the constitutionality of a law before the CCU.
36. As
Constitutional Courts are bound by the Constitution and do not stand above it,
such decisions raise important questions of democratic legitimacy and the rule
of law.
37. It is clear
that a change of the political system of a country based on a ruling of a
constitutional court does not enjoy the legitimacy which only the regular
constitutional procedure for constitutional amendment, and preceding open and
inclusive public debate can bring. As it stressed in its 2005 Opinion on the
amendments to the Constitution of Ukraine, “taking the time necessary for
finding a real consensus among all political forces and the civil society on a
well-balanced and coherent constitutional reform would secure legitimacy of the
new Constitution and the political system in Ukraine”.
38. In the
Venice Commission’s opinion, the jurisprudence of a Constitutional Court has to
be consistent and based on convincing arguments in order to be accepted by the
people. Changes in the case-law have to be well-founded and explained in order
not to undermine legal certainty. The principle of legal certainty, being one
of the key elements of the rule of law, also requires that when declaring a
constitutional amendment unconstitutional the time elapsed since its adoption
is taken into account. Moreover, when a court’s decision is based on formal or
procedural grounds only, the substantive effect of such a decision should also
be taken into account. In other words, the final decision should be based on a
proportionality test where the requirement of constitutionality should be
balanced against the negative consequences of the annulment of the constitutional
amendment in question.
39. Finally, it
is also important for such a decision to include unambiguous transitory
provisions and set a precise time-limit for bringing lower-order norms and the
functioning of state institutions into harmony with the Constitution in force.
B. Legal
consequences of the Constitutional Court’s Judgment
40. The main
consequence of the 30 September Judgment of the Constitutional Court is the
reinstatement of the pre-existing legal contents of the 1996 Constitution.
41. In some
countries, the principle of automatic restoration of the pre-existing legal
norms has been explicitly entrenched in their constitutions. In some others,
with constitutional review systems that are similar to the Ukrainian system,
such as Bulgaria for example, the automatic restoration effect was proclaimed
through the Constitutional Court’s case-law.
In both cases however, it refers only to the lower-level norms and not the
constitution itself.
42. Although
the Ukrainian Constitution does not contain any specific provision on this
issue, the 30 September Judgment gave an answer to this question in its
motivational part, where it stated that “…the recognition of Law No. 2222 as
unconstitutional in connection with a violation of the procedure of its
consideration and approval means the renewal of the previous wording of the
norms of the Constitution of Ukraine, which were amended and excluded by Law
No. 2222 (p. 12)”.
43. A number of
ambiguities concerning implication of the 30 September Judgment
remain. For example, the CCU did not provide an answer to the issue of the
functioning of the state institutions; the Prime Minister, who was nominated
according to the procedure given in the 2004 version of the Constitution can
now be dismissed by the President, without consent of Parliament.
44. However,
only two main issues are addressed in the present Opinion: the length of the
parliamentary term and bringing national legislation into conformity with the
1996 Constitution.
a) Length of the parliamentary term
45. Both the President and Parliament had been elected on the basis
of the Constitution of 2004: the Parliament in September 2007 for a term of
five years, and the President in January 2010 for a term of five years.
According to the 1996 Constitution, which, according to the CCU’s Judgment is
now in force, the parliamentary term is four years, which would mean that the
next parliamentary elections should be held in the Spring of 2011, i.e. the
last Sunday in March of the fourth year of the mandate of the deputies (Article
77 of the Constitution). On the other hand, according to the 2004 version of
the Constitution, regular elections of the Verkhovna Rada take place on
the last Sunday of the last month of the fifth year of the mandate of the
deputies (Article 77 of the Constitution), i.e. in September 2012.
46. This situation was at the origin of two recent constitutional
petitions:
47. In early October, the parliamentary majority submitted a project
to amend the Constitution, extending the length of the term of Parliament and
local government bodies by one additional year (from four to five years). This
action of Parliament might be interpreted as implicitly acknowledging the fact
that, under the present circumstances, the length of the parliamentary term of
office is four years.
48. In conformity with the constitutional provisions on amendment,
this draft constitutional amendment has been sent to the CCU for review. The
Court gave its positive opinion on this draft amendment on 19 November 2010.
However, the final approval of this constitutional amendment will not be given
until the beginning of February 2011 (when the next session of Parliament will
begin).
49. In parallel
to this, the Central Election Commission (hereinafter, the “CEC”), which should
initiate the formal start of the elections 105 days before the election date
(i.e. on 22 November 2010, in case the 1996 Constitution applies) requested the
Constitutional Court’s interpretation of Article 77 of the Constitution. At the moment of
writing this Opinion, the case is still pending before the Constitutional Court,
and the CEC has not yet declared the start of the election campaign.
50. It is not
the task of the Venice Commission to speculate on the future decision of the
CCU on this matter. It wishes to stress, however, that it is of the utmost
importance to re-establish legal certainty, overcome the constitutional crisis
and provide for a legitimate basis for the exercise of power in the country.
51. The
Constitution itself does not specify who should determine the date of the
parliamentary elections. The Verkhovna Rada is empowered to set the date
for the presidential and for the local elections, but not for its own. The CCU
is the only authority competent to give the official interpretation of the
constitution. Last year, the CCU was requested to pronounce itself on the then
President Yushchenko’s constitutional petition regarding the date of the
presidential elections.
In its Decision, the CCU stated that in setting the date for elections, it was
guided by the norm of the Constitution current on the day that the judgment
was taken. As Article 17.1 of the Law on Presidential Elections and the Verkhovna
Rada Resolution on setting regular elections for President of Ukraine
reproduced the wording of the 1996 version of the Constitution, the Court
declared both acts as contrary to Article 103.5 of the 2004 version of the
Constitution in force.
52. The Venice
Commission wishes to recall the importance of the role of constitutional courts
in putting into practice democracy, the rule of law and the protection of human
rights. The state constitutional courts are the institutions which can, by
interpreting the wording of the constitution prevent the arbitrariness of the
authorities by giving the best possible interpretation of the considered
constitutional norm at the given time.
53. The Commission strongly hopes that the
CCU, as the only authority competent to give the official interpretation of the
state constitution, will take its decision on this matter very soon and
preferably before the end of the year, thus contributing to ensuring the rule
of law and the stability of the country in a difficult moment of its
constitutional history.
b) Bringing the legislation in
line with the 1996 version of the Constitution
54. In
conformity with 30 September Judgment, the state authorities are required to
“urgently” harmonise normative legal acts with the 1996 Constitution. Again,
the lack of transitional provisions or a specific time-limit provoked legal
uncertainty and became the subject of controversy between the majority and the
opposition.
55. During its
visit to Ukraine, the representatives of the Ukrainian authorities informed the
Commission that the process of legislative reform is almost finalised with most
of the relevant laws being already modified to conform to the 1996
Constitution. The recently adopted Law on the Cabinet of Ministers addresses
the main issues in this regard.
56. Among
others, the Law on the Cabinet empowers the President to appoint the Prime
Minister, with the consent of more than half of the constitutional composition
of Parliament (Article 8), and the Cabinet members, upon proposal by the Prime
Minister (Article 9). The Cabinet is responsible to the President of Ukraine
and is under the control and accountable to Parliament (Article 1.3). The Government can be dismissed
as a result of the adoption of the no-confidence motion against the Cabinet,
the President's decision on the resignation of the Cabinet, the resignation of
the Prime Minister or his/her death (Article 12). In addition, the Government
must resign after the new President is elected (Article 11). The Cabinet
programme is based on the electoral programme of the President, to be submitted
for consent to the Verkhovna Rada (Article 10.1 and 10.2).
57. The Law on
the Cabinet of Ministers of Ukraine is of crucial importance for the
functioning of the executive branch in the country. It is therefore
particularly important that its provisions reflect a proper co-ordination with
the Constitution in force. The Venice Commission did not have the opportunity
to assess this new Law in detail. It wishes to note, however, that a number of
provisions of the Law appear to give rise to concern. These are threefold.
58. First, according
to Article 25.2, the Cabinet of Ministers is obliged, inter alia, to
ensure the implementation of acts issued by the President as well as of the
“instructions” (“doruchennya”) by the President. A number of
interlocutors met during the November visit to Kiev informed the Commission
that in practice, this kind of “instructions” may be given to both the Cabinet
as a whole and the individual ministers within the Cabinet. This prerogative
however, is not contained in Article 116 of the 1996 Constitution.
59. Second, the
presidential acts issued within the limits of the defined powers must be
“confirmed” by the premier and the responsible minister “by appending their
signatures” to the act within a five-day term (Article 25.3). In this regard,
the Commission recalls that the countersignature requirement allows the setting
of limits to the discretionary power of the President in certain fields and
prevents him or her from pursuing his or her own personal policy. While this
provision explicitly refers to the mechanism of countersignature envisaged by
the Constitution (Article 106.2), its wording and the very short deadline may
undermine its relevance in practice. In addition, the Law on the Cabinet
remains silent as to the possible legal consequences of the Prime
Minister/responsible minister refusing to sign an act of the head of state.
60. This last
point is particularly relevant, as the Commission was told by some
representatives of Ukrainian authorities and the opposition, that in practice,
the mechanism of countersignature is very rarely used, if at all. It thus
strongly recommends the effective use of this important principle in practice.
61. Third,
Article 42.1 gives the President also the right to appoint “deputy ministers”,
upon the proposal of the Prime Minister. Again, this novelty seems to transcend
the bounds of the 1996 version of the Constitution.
62. These
changes clearly lead to diminishing the influence of Parliament and
strengthening the President’s control over the activity of the Government. In
addition, the new Law on the Cabinet of Ministers as well as the whole process
of harmonisation of the legislation with the 1996 version of the Constitution
encounters a rather strong criticism from various actors in the country. During
the Commission’s visit to Kyiv, several interlocutors met denounced the haste
in adopting and implementing legislative reforms, which apparently resulted in
several violations of regular legal procedures. It was thus pointed out that
among others, the above-mentioned new Law on the Cabinet entered into force on
7 October 2010, only six days after the CCU’s Decision, apparently without
respecting all the procedural stages. This seems to indicate that the new draft
Law was prepared in advance.
63. Without
having seen the Rules of Procedure and more detailed information on the various
stages in the adoption procedure in Parliament, it is not possible for the
Venice Commission to comment on this matter. It must be recalled however, that
the 2004 version of the Constitution was annulled because of the non-observance
of procedure in making amendments to it. The rush in adopting
legislative reforms to conform to the Constitution currently in force should
not come at the cost of proper democratic procedures and proper consultative
process. It has to be kept in mind that all laws passed violating certain rules
of procedure can be abrogated at any time by the Constitutional Court. This
creates legal uncertainty and is incompatible with European standards in
particular, the rule of law.
C. Further steps to be taken to bring the
new constitutional framework in line with European standards and norms
64. The fundamental problem in Ukraine for more than a decade has
been dysfunctional institutions, a lack of checks and balances especially with
respect to the powers of the President, constant clashes between the State
organs and intense disputes over the Constitution. Considering current
political realities, the strengthening of the powers of the President can
become an obstacle for building genuine democratic structures and may
eventually lead to an excessively authoritarian system, as already pointed out
in the Venice Commission’s opinion on the draft constitution of Ukraine as approved on 11 March 1996.
65. Therefore, the present constitutional situation and the 30
September Judgment should not be used as a reason to avoid a comprehensive
constitutional reform called for by, inter alia, the Parliamentary Assembly of the Council of Europe and the European
Union.
It is clear that the current constitutional framework based on a ruling of the Constitutional Court does not enjoy sufficient legitimacy, which only the regular
constitutional procedure for constitutional amendments in the Verkhovna Rada
can ensure.
66. In the Venice Commission’s opinion, a comprehensive
constitutional reform in Ukraine should strengthen the stability, independence
and effectiveness of state institutions through a clear division of
competencies and effective checks and balances. It should also introduce
additional mechanisms and procedures of parliamentary control over the actions
and intentions of the executive.
67. Moreover, a genuine constitutional reform is crucial to ensure
that the legislative reform packages that are currently being developed are
fully consistent with European standards and values. This concerns, first of
all, the reform of the judiciary. The recent Opinion of the Venice Commission identifies a number
of problematic provisions in the Constitution which are an obstacle to a more
comprehensive reform. Moreover, constitutional amendments should also
facilitate the urgently needed reform of local self-government. Finally, while
the return to the 2004 version of the Constitution should make reform of the Prokuratura
- a commitment of Ukraine to the Council of Europe - easier, further amendments
might also be advisable in this respect.
68. Indeed, the
transitional provisions of the 1996 version of the Constitution can no longer
be used as a justification for maintaining the state of affairs that was
supposed to be changed by this very text. This regards the reform of Prokuratura
of course, but also the reform of the criminal procedure.
V. Conclusion
69. The recent constitutional history of Ukraine has involved
constant challenges and attempts to find the right balance of powers between
the President, the Cabinet and Parliament. It soon became apparent that the
text of the 1996 Constitution did not, taking into account realities in Ukraine, provide for sufficient checks and balances and that there was a risk of
authoritarian presidential system. The Venice Commission therefore supported,
already in 2003, the efforts for constitutional reform. These efforts led to
the adoption of the 2004 constitutional amendments. The change brought about by
these amendments was welcome, in principle, but neither coherent nor well
thought through. The amendments therefore led to increased tension, especially
between the President and the Cabinet of Ministers.
70. The
reinstatement of the 1996 version of the Constitution by a judgment of the
Constitutional Court of Ukraine raises questions of the legitimacy of past
actions, as the institutions of Ukraine worked for several years on the basis
of constitutional rules later declared unconstitutional. It also raises
questions of legitimacy with respect to the present state institutions, since
the President and the Parliament were elected under constitutional rules that
are no longer recognised as valid. The President of Ukraine, as from this judgment,
enjoys far more powers than could be foreseen by the voters when he was
elected. The working of the main state organs is now based on rules changed by
a court and not on rules changed by the Verkhovna Rada, as a
democratically legitimate body.
71. The issues
around the terms of office and elections are rather complex and equivocal, and
every decision in this respect must be based on clear and convincing arguments
in order to be accepted by the people. To the extent that an authoritative
interpretation of the provisions of the Constitution with regard to the next
date of the parliamentary elections seems to be required, the Venice Commission
believes that a decision by the Constitutional Court of Ukraine could provide
the answer to this issue.
72. The Commission also considers it to be of the utmost importance
for the Ukrainian authorities to adhere to the rule of law and to observe all
rules of procedure when adopting and revising national legislation to implement
the Constitution, including by fully involving the opposition parties in this
process. Such legislation should not be used to enlarge competences of state
institutions beyond what is envisaged by the text of the 1996 version of the
Constitution, as it was the case with the Law on the Cabinet of Ministers
recently.
73. In the Venice Commission’s opinion, the recent political and
constitutional crisis in Ukraine once again revealed how urgently a true and
comprehensive constitutional reform is needed in that country. The Commission
has called for such a reform several times already, and has underlined
the need to secure the legitimacy of any constitutional reform in Ukraine. Such legitimacy can only be achieved if constitutional amendments are made after
extensive, open and free public discussions involving the opposition and civil
society, and in strict accordance with the constitutional provisions on
amendment through decisions of the Verkhovna Rada by a qualified
majority. A Constitution which is not based on large agreement of all relevant
political players in the country cannot lead to political stability, as we have
seen over the last years.
74. The Venice Commission strongly encourages
the Ukrainian authorities to ensure that such a constitutional reform results
in an effective strengthening of the stability,
independence and efficiency of state institutions through a clear division of
competencies and effective checks and balances. It should also introduce
additional mechanisms and procedures of parliamentary control over the actions
and intentions of the executive. Such a constitutional reform should also
include changes in the provisions on the judiciary aiming at “laying down a
solid foundation for a modern and efficient judiciary in full compliance with
European standards”.
75. Finally, as
the Commission pointed out in its recent Report on constitutional amendment, “as long as the special requirements for amendment in the
constitutions of Europe are respected and followed, then these are and should
be a sufficient guarantee against abuse. In most countries such decisions
require a qualified majority of the elected representatives in parliament, as
well as other requirements. Constitutional decisions adopted following such
procedures will in general enjoy a very high degree of democratic legitimacy –
which a court should be extremely reluctant to overrule”.
76. The Venice Commission therefore strongly
encourages the Ukrainian authorities to engage in a process of constitutional
change that is based on the regular constitutional procedure for constitutional
amendments and on the democratic participation of all actors of society
concerned.
77. The Venice Commission is ready to assist in this important
task, should the Ukrainian authorities make a request for such assistance.
