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Constitutional Process in Ukraine
Special Contribution
By Volodymyr Belashov
Ukrainian Ambassador to Seoul
Mr. Volodymyr Belashov, Ukrainian ambassador to Seoul

The Constitutional Court of Ukraine has declared unconstitutional the law No.2222-IV of December 8, 2004 amending the Constitution of Ukraine (the so-called political reform of 2004) due to the violation of the procedure for its consideration and adoption. According to the ruling, the law on the constitutional amendments is deemed invalid from September 30, 2010, the day the ruling was passed.

1996: 1st Constitution of Independent Ukraine

From 1991 through June 1996, the Parliament of Ukraine was working on the new Constitution for Independent Ukraine. The best world experts and specialists were involved in this work.

With the adoption of the Constitution in June 1996 the process of social, political and economic situation in the country started to stabilize. According to the Constitution of Ukraine of 1996, Ukraine is a presidential republic. The Constitution of Ukraine fixed a clear distribution of two branches of power: strong concentration of executive power in the hands of the President, and the legislature – in the hands of the Parliament.

Adoption of the Constitution of Ukraine of 1996 was recognized as the event of the year in the sphere of European constitutional law. "The Constitution establishes a strong executive power [...] and envisages a system of checks and balances that make the return to authoritarianism impossible. The rule of law is very well implemented in the text of the Constitution. The introduction of democratic local self-governance, and the important role given to the Constitutional Court, will promote the establishment of a democratic culture in Ukraine", – this was the final conclusion of the European Commission for Democracy through Law (the Venice Commission).

By the assessment of many constitutional legal experts, the Ukrainian Constitution of 1996 was and will be considered as one of the best constitutions in Europe. This constitution was not only one of the youngest but one of the best and the most effective Constitutions in the world.

The Venice Commission pointed out with satisfaction that a long time taken by Ukraine as an independent state to develop its own Constitution was used for continuous improvement of the text. The final revision took into account many comments made by the Commission on previous drafts of the document. The Commission findings also pointed out that the Constitution established a strong executive branch, controlled by a strong president, while the text, provided for a system of checks and balances, prevented the return to authoritarianism. The conclusion on the Constitution of Ukraine was approved at the 30th plenary session of the Commission in Venice on March 7-8, 1997.

2004 Political Cirsis Changes to Constitutions — 2004 (Law No. 2222)

In December 2004, at the time of an acute political crisis connected with the results of the presidential election-2004, the Ukrainian Parliament changed the Constitution of Ukraine. Unlike the lengthy and thorough process of creation of the 1996 Constitution that lasted many years, the amendment of the Constitution in 2004 had a hasty, biased, unsystematic and unscientific nature.

The Parliament of Ukraine adopted the Law of Ukraine no. 2222 "On Amendments to the Constitution of Ukraine», some provisions of which had to do with the government system in Ukraine. Ukraine became a parliamentary-presidential republic.

In particular, the authority of the Verkhovna Rada of Ukraine was expanded. Unlike its role under the Constitution of Ukraine of 1996, the Verkhovna Rada assigned the Prime Minister and majority of ministers of the Cabinet of Ministers based on the submission of their candidatures by the coalition of deputy factions and the President of Ukraine; on President's initiative, the Parliament of Ukraine might consider the responsibility of the Cabinet of Ministers of Ukraine and pass a no-confidence vote to it, etc.

At the time of adoption of amendments to the Constitution of Ukraine, the Parliament allowed a CONSCIOUS and FLAGRANT violation of the constitutional procedure of adoption of amendments to the Constitution of Ukraine.
Amendments to the Constitution were adopted without CONSTITUTIONAL CONTROL. The Parliament removed the Constitutional Court from analysis and control over changes to the Constitution itself. The Parliament deliberately ignored the Constitutional Court of Ukraine, although the constitutional control is a mandatory element of the constitutional process.

Violations of the constitutional procedure in reviewing and making changes to the Basic Law were also pointed out by the Parliamentary Assembly of the Council of Europe (PACE), which is reflected in its documents. Thus, paragraph 14 of PACE Resolution no. 1466 (2005) "On Implementation of Obligations and Commitments by Ukraine" dated October 5, 2005 reads as follows:

"The Parliamentary Assembly is concerned that the new constitutional changes were adopted without prior review by the Constitutional Court as provided for in Article 159 of the Constitution of Ukraine and as construed in the CCU (Constitutional Court of Ukraine) resolution of 1998. The Parliamentary Assembly therefore urges the Ukrainian authorities to correct these issues as soon as possible to ensure the legitimacy of constitutional amendments and their conformity with the European standards."

The Venice Commission issued an opinion dated June 13, 2005 no. 339/2005 on amendments to the Constitution of Ukraine adopted on December 8, 2004, which noted, in particular, that "the transitional provisions making the entering into force of the amendments dependent on the adoption of another set of amendments clearly reflect the context in which the amendments under examination have been adopted. Indeed, although the constitutional reform has been pending for several years, the Law on amendments was adopted in a hurried way, with the aim of solving the acute political crisis" (paragraph 49). The Commission concluded: "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" (paragraph 50).

The amended Constitution was criticized by everybody: the government, the opposition, scholars and ordinary citizens. Only the lazy did not join the critics of the current Constitution. Meanwhile, Ukraine was heading nowhere, being bogged down in the quagmire of an unbalanced government system.

Constitutional amendments of 2004 demonstrated to the whole world the priority of political expediency over the legal obligation of the Parliament to adhere to the requirements of the Constitution of Ukraine during the consideration of bills and passing laws.

Ruling of Constitutional Court of Ukraine (CCU)

The first attempt to use the CCU to abolish the constitutional amendments made in 2004 was made by Yulia V. Tymoshenko. On March 28, 2007 she personally along with 101 MPs submitted a written pleading to the Constitutional Court of Ukraine requesting to rule Law No.2222 unconstitutional. Due to improper filing of documents submitted to the Court, the CCU decided not to consider the case until all materials are duly filed and substantiated.

On July 13, 2010, 252 people's deputies of Ukraine appealed to the Constitutional Court of Ukraine to rule the Law of Ukraine "On Amendments to Constitution of Ukraine" (dd. December 8, 2004, no. 2222-IV) as unconstitutional.

This decision was not an easy choice for the politicians, but it was necessary, because it puts at stake the prosperity and stability of the nation. It is no longer acceptable to stand aside and watch the process of application of temporary patches to fix the discrepancies of the current Constitution; we can no longer look the other way ignoring the deficiencies of the Basic Law and, most importantly – the fact that the constitutional procedure of amending the Constitution was ignored at the time of adoption of Law no. 2222.

Therefore, people's deputies of Ukraine decided to appeal to the Constitutional Court of Ukraine and request that the Court review and provide its assessment of the procedure of amendments to the Constitution of Ukraine during the adoption of Law no. 2222 and rescind the rules that have been destroying the governing principles of the Ukrainian state for five years.

Eventually, the Constitutional Court of Ukraine has declared unconstitutional the law No.2222-IV of December 8, 2004 amending the Constitution of Ukraine (the so-called political reform of 2004) due to the violation of the procedure for its consideration and adoption. According to the ruling, the law on the constitutional amendments will be deemed invalid from the day the ruling was passed, which is September 30, 2010.

Consequences of the CCU Ruling

The reaction of the Ukrainian society to the Constitutional Court of Ukraine ruling is not unanimously positive. However, the majority of people, institutions and politicians are in favour of it.

Restoration of the Constitution of 1996 does not mean any change in Ukraine’s foreign policy and its commitment to democratic reforms. Strengthening of democracy in Ukraine is an irreversible process; European integration remains a strategic priority of Ukraine’s development, its foreign policy and guidance for the implementation of system reforms. It is reflected in the Law of Ukraine on domestic and foreign policy, priorities in foreign policy and internal development of Ukraine, outlined in the Message of the President of Ukraine to the Ukrainian nation of 3 June 2010, in the mainframe policy documents of the President and Government of Ukraine.






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