Politics vs. the law in Ukraine, which holds precedence? Prosecution of Ukraine’s Constitutional Court

Press release of the press conference given by Yevhen Zakharov and Vsevolod Rechytsky on June 22

Despite all Ukraine’s efforts to become a European civilized country and enter the EU, the steps in this direction will remain only good intentions until our politicians learn to act according to principles of rule of law, and not political expediency. The idea that complicated political processes can be easily solved through simple means with force or pressure on opponents is deceptive and only makes these problems more difficult.  Examples of this are given by the Law reinstating the force of particular provisions of Ukraine’s Constitution from Feb 21 2014; the Law on Government Cleansing (lustration); and the so-called ‘decommunization’ laws; the Supreme Court ruling which revoked the ruling from the High Administrative Court “regarding the finding unlawful of the Verkhovna Rada resolution of Feb 24 2014 on the early termination of the powers and dismissal of Constitutional Court judge Viacheslav Ovcharenko “.  Unfortunately one can give more and more examples.

Lustration is needed, but the chosen model is unclear, unrealistic, with an excessively broad circle of people falling within its scope, and the procedure does not envisage independence. Under such circumstances lustration turns from being an instrument for defending democracy into selective persecution of government officials.

Decommunization is also needed, and one can only welcome the condemnation of the communist regime for the crimes of the Soviet period. However for condemnation, parliamentary acts are insufficient, there needs to be judicial, and not parliamentary, procedure for the confirmation and qualification of specific crimes of communism, and then you can speak of liability for denial of these crimes.

The Law reinstating the force of particular provisions of Ukraine’s Constitution from Feb 21 2014 violates the Constitution, Article 85 of which does not envisage any « reinstatement » of the Constitution by parliament. Furthermore, as stated in Article 5 of the Constitution, “the right to stipulate and change the constitutional order in Ukraine is held solely by the people and cannot be usurped by the state, its bodies or officials”.  The latter means that where amendments to the Constitution affect elements of the constitutional order, they must be passed solely by the people, that is at a nationwide referendum.

Since a change in form of government in the state is at the same time a change in one of the elements of its constitutional order, the move by Ukraine from the model of a presidential republic to a parliamentary republic has to be carried out through the direct consent of the Ukrainian people, that is solely at a nationwide referendum. This circumstance alone is quite enough for the Constitutional Court to not have been able to agree with the adoption of the constitutional (political) reform of 2004. As we know, this notorious “blue” reform was voted on as part of a package with an ordinary law and Verkhovna Rada resolution which resulted in a kind of backwards government, where the content of current normative acts directly affected the content of the Constitution.  This flagrant violation of procedure for making amendments to the Constitution was confirmed by the Constitutional Court in its judgement No. 20 / 2010 of 30 September 2010. This judgement did not at all mean, as is claimed, “the revoking of a parliamentary republic in Ukraine”, but was merely recognition of the illegitimacy (procedural weakness) of the relevant constitutional text. It is therefore not correct to link this judgement with usurpation of power by Yanukovych. Viktor Yanukovych had usurped power long before this judgement and continued the usurpation after the judgement was passed.

Attempts to punish Constitutional Court judges for legal “betrayal” demonstrates only the low level of legal culture of the expert community and Ukrainian politicians. At the higher levels of power they don’t even understand what negative consequences for the Ukrainian state will be caused by the dismissal of constitutional judges for violation of their oath and criminal proceedings against them over the adoption of a wrongful Constitutional Court judgement.