Last Thursday the Constitutional Court (CC) made public its conclusion to what extent the presidential draft law on changes to the Constitution resulting from the referendum comply with Articles 157 and 158 of the Constitution of Ukraine. It will be recalled that the Constitutional Court is conducting a preliminary inquiry into whether or not the constitutional amendments violate Article 157 which forbids altering the fundamental law if this cancels or restricts individual rights or freedoms or if the changes aim to undermine Ukraine’s independence or territorial integrity.
As far as these provisions are concerned, the presidential bill has gone smoothly through CC purgatory: all seventeen judges decided the bill complies with the Constitution, with only two of them, Shapoval and Selivon, dissenting. However, the judges only had no objections about the item by which the number of People’s Deputies is to be reduced from 450 to 300. As to the two other items, the CC ruled it is necessary either to modify or supplement some constitutional norms, for if the bill is approved in the proposed version, its practical implementation will obviously require additional CC explanation.
In particular, the judges thinks that if part three is simply to be deleted, as the President suggests, from article 80 dealing with parliamentary immunity, “the absence in the Constitution of an adequately clear definition of parliamentary immunity may lead in practice to ambiguous interpretation of part one” of this article. The second remark of the CC concerns introduction of the term “standing parliamentary majority.” The judges came to the logical conclusion that this provision should be supplemented with guarantees for those Verkhovna Rada members who do not make up part of the parliamentary majority and can be arbitrarily called a parliamentary minority. “Vague guarantees for the functioning of such a minority could lead to violation of one of the main foundations on which Ukraine’s public life rests, political and ideological pluralism (article 15 of the Constitution), and to restriction of the citizens’ constitutional rights set out in articles 34 and 38 of the Constitution,” the Constitutional Court conclusions say.
To include in the fundamental law the President’s right to dissolve parliament early in case the latter fails to approve the state budget within three months, one must, again from the angle of CC judges’ logic, work out, at least in general lines, the mechanism of sustaining the budget-making process should an early dissolution occur.
Thus the Constitutional Court remarks stress that the constitutional amendments in the proposed wording are unacceptable. This is what parliamentary majority representatives and political scientists have been saying, at first cautiously and then openly. For example, Mykhailo Pohrebynsky, director of the Kyiv Center of Political Research and Conflict Studies, did not rule out that the presidential bill “will be adopted in a slightly different wording to which the President will not object.” Indeed, it will hardly be something more than just a new wording. But in this case implementation could drag on because any kind of editing, even purely stylistic, will require a new CC verdict. This is the rule. But if parliament does not heed the Constitutional Court reservations and hurry up with implementation (which is, by the way, of low probability, with due account of prevailing sentiments among the Deputies), practical application of the constitutional innovations will nonetheless raise the necessity of preliminary explanation of the bottlenecks identified. The opposition will be unlikely to miss this prompt from the judges.
On the People’s Deputies’ bill on constitutional amendments, sent to the Constitutional Court, incidentally, simultaneously with the President’s draft, the CC has not yet passed judgment.
As we have learned, this decision is expected to be announced this week.
