Tuesday, February 20, 2007

The Constitutional Court: Problems of Amending the Constitution of Ukraine

by Vasyl Panfilov, for UP

Source: Original article in Ukrainian by Vasyl Panfilov, UCIPR analyst (www.ucipr.kiev.ua), for UP

Another intrigue surrounding the future of the political reform concerns the Constitutional Court of Ukraine. Specifically, the Kommersant-Ukraina published information that on February 15, 2006, the Constitutional Court of Ukraine voted on the law "On Amending the Law of Ukraine "On the Constitutional Court" prohibiting the Constitutional Court from reconsidering the political reform provisions."The draft decision on reversal of the law was supported just by six judges out of the required minimum of ten votes. Despite the fact that voting did not produce a final result, it is safe to conclude that the Constitutional Court will not allow reconsideration of the constitutional reform," the newspaper wrote. Nevertheless, the next day, at his first press conference as Chairman of the Constitutional Court, Ivan Dombrovsky denied information of voting on abolition of prohibition on the political reform’s reconsideration.

Hasten Slowly…

Presently, the Constitutional Court actually takes the lead by the number of references in different political statements, reports and speeches. It is appealed on the occasion of possible dissolution of the Verkhovna Rada or recognition of 10% of presidential decrees unconstitutional or the law on the Cabinet of Ministers and its compliance of its actions with the established procedures etc.

Needless to say, the Constitutional Court is the only governmental agency that can and has to dot the "i’s" and cross the "t’s" deciding the future of Ukraine’s political system in the context of the constitutional reform, ensuring balanced actions of government departments and explaining documents that regulate powers and relations within the Verkhovna Rada – the government – the President triangle. It is difficult to forecast both the price for the answer to these questions and consequences, which will depend on the decisions of the Constitutional Court and the decision-making period. Most likely, the revolution will not occur in the near future, while cases will be considered for long. The above conclusion is based on recent activities of the Constitutional Court.

It has to be stated that the Constitutional Court of Ukraine has not been working properly for nearly two years. The Verkhovna Rada of the 4th convocation could not (and, probably, didn’t want to) hold by-elections of the Constitutional Court judges by its quota and swear them in. The major sticking point in this issue was the political reform or rather the opportunity it gave to interpret its provisions that came into effect from January 1, 2006. After the parliamentary elections, MPs also were not in a hurry to decide on by-elections and adjuration of the Constitutional Court judges. Legal motivations were limited to the absence of the Head of the Verkhovna Rada, who could sign the parliamentary decision on adjuration of constitutional judges. The situation was paradoxical also because in summer 2006, the number the constitutional judges appointed by the Congress of Judges of Ukraine was enough to secure a quorum in the Constitutional Court or the beginning of its proper work.

Vice Speaker A. Martynyuk once commented on the first decisions of the Constitutional Court as saying, "The presidential entourage spares no effort to make the December 8, 2004 voting (when 402 votes were for amending the Constitution) the first case to be considered by the Constitutional Court." Yet, it was the Verkhovna Rada or rather the anti-crisis coalition that invented a method to pass a respective judgment not in the first turn.

On August 4, 2006 – simultaneously with adjuration of the constitutional judges – the Ukrainian parliament made changes to the law "On the Constitutional Court of Ukraine", under which issues of constitutionality of the enacted laws on constitutional amendments are beyond the competence of the Constitutional Court. Specifically, the August 4, 2006 law No. 79–V deprived the Constitutional Court of jurisdiction to revise changes to the Basic Law made in December 2004. Subparagraph 1, Paragraph 3, Section IV of the law "On the Constitutional Court of Ukraine" reads, "The Constitutional Court makes decisions and provides conclusions on cases regarding constitutional compliance of laws, save laws on amendments to the Constitution of Ukraine in force, and other legal acts of the Verkhovna Rada of Ukraine, acts of the Cabinet of Ministers of Ukraine, legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea passed after the Constitution of Ukraine came into effect." In the same August 2006, the Verkhovna Rada should have raised the issue of whether such the decision runs counter to the letter and the spirit of the Fundamental Law, especially, its Article 126 that guarantees the independence and immunity of judges and prohibits from influencing them in any manner. So, don’t the August changes in the law on the Constitutional Court mean the same "prohibited influence" that actually deprives the Constitutional Court of the right to interpret the Constitution? However, answering the question about the pressure of the above law, Mr. Dombrovsky said, "I will never refer to adoption of the law by the Verkhovna Rada as pressure… I do not perceive the very fact of enactment as pressure" (the UNIAN, February 16, 2006)...

Yet, the Constitutional Court seemingly has found itself in a rather delicate situation. In view of the ongoing "cold war" between the government and the President, constitutional judges have chosen a respective tactics: to hasten slowly… Of course, they had every reason to act that way. According to official information available on the site of the Constitutional Court, there are 49 constitutional petitions in the Court, of which 23 are pending as of February 12, 2007. 6 out of the 9 constitutional submissions by the President of Ukraine are under consideration by the Collegium of Judges and 1 – by the Secretariat of the Constitutional Court. 4 constitutional petitions are filed by the Cabinet of Ministers of Ukraine.

Some Things about Terms…

As the media reported, on September 19, 2006, MP Mykhailo Pozhyvanov of Our Ukraine faction registered a constitutional claim by 47 MPs against unconstitutionality of the anti-crisis coalition’s brain-child – the law that actually prohibited the Constitutional Court considering legitimacy of the December 2004 changes. Interpretation of amendments to the law on the Constitutional Court as unconstitutional offered, at least, a theoretical possibility of raising the issue of constitutionality of the political reform. Nevertheless, the situation stood still for six months.

Under Article 57 of the above law, proceedings on constitutional claims shall not exceed three months. In case of constitutional claims recognized urgent by the Constitutional Court, the duration of proceedings shall not exceed one month. In its turn, the duration of proceedings on constitutional petitions shall not exceed six months. Though, these strict provisions have a minor but very important nuance: time of constitutional proceedings shall be kept from the date, on which the procedural decision to open constitutional proceedings in the case is made...

According to information on the site of the Constitutional Court of Ukraine, on the consent of the Collegium of Judges, constitutional proceedings in case of constitutionality of the August 4, 2006 law No. 79–V "On Amending Section IV "Final and Transitional Provisions" of the Law of Ukraine "On the Constitutional Court" were initiated on January 18, 2007. So, the Constitutional Court has, at least, another two months to pass its verdict. Should these changes be found constitutionally compliant, it would be vain to hope for proceedings on legitimacy or illegitimacy of the political reform.

Even today it is obvious, this, in the opinion of Ivan Dombrovsky, will not create a legal precedent for the Constitutional Court’s interference with changes to be made in the Constitution of Ukraine. And the Verkhovna Rada may decide to abolish presidency or, say, grant Russian the status of the second national language through making relevant amendments to the Basic Law...

Chairman of the Constitutional Court Ivan Dombrovsky believes that revision of the law on the Constitutional Court and/or drafting of a new act with regard to the new Constitution may be a solution. However this would again take time and raise paradoxical or tricky questions, e.g. to what extent is the law on the Constitutional Court constitutional, if it is drafted on the basis of the Constitution, changes to which it may recognize unconstitutional?

Yet, the longer legal casuistry lasts, the deeper Ukraine’s political crisis will be and the more work the Constitutional Court will have