Constitutional review: Venice Commission on Law 222 and Ukraine's Constitution

I thought it is worth while publishing a reference to a review by the Venice Commission. on the changes to Ukraine's Constitutional Order.  As usual the comments of the Venice Commission lie deep within the use of text.  but the message is clear for those that have a good command of the English legal language.

Some paragraphs of note:

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”18. 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?

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.
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.
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.

The Venice Commission has rightly questioned the methodology and determination of Ukraine's Constitutional Court.  Its lack of consistency and reference to existing case law undermines the law itself.

The reports goes on to explain a number of issues that are left unaddressed. It is a report well worth reading BUT it needs to be stressed that the reader needs to look beyond the niceties of diplomatic review of a sovereign country.  It is this "Nicety" that has prevented the Venice Commission from speaking out.

The Venice Commission failed to speak out when Viktor Yushchenko, Ukraine's previous President beached Ukraine's Constitutional norms and illegally interfered with the independence of Ukraine's constitutional Court.  Its failure to speak out then and to hold Yushchenko to account has in a large extent contributed to the causal events that have unfolded in Ukraine since.    Sometimes it pays to just say exactly what they mean and place the principle of constitutional order above that of diplomatic niceties.  A stitch in time can save nine.


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