Constitutionalism or mockery of the Constitution?

In adopting the Constitution in 1996, the citizens of Ukraine had every reason to see the beginning of a qualitatively new stage in the life of the state, a decisive step on the path of democratic development, where law would prevail and there would be no arbitrariness of power.

Instead, the Constitution of Ukraine is now weak; it does not play its proper role. This weakness is due to the fact that, instead of becoming something almost sacred for society, the Constitution fell into the hands of political hucksters, who care little about what will happen after them.

The Constitution's fate has included violations by President Kuchma of constitutional limits on power, the Constitutional Court's decision on a third presidential term, the introduction of chaotic amendments in 2004 for purely political reasons...

And then there was the letter-bound interpretation of the Constitution during Yushchenko's presidency, the legalization of a "coalition of deputy factions and people's deputies," whereas the Constitution directly refers to a coalition of deputy factions, plus a whole series of less resonant but no less destructive blows to the Fundamental Law.

And now here is another trial — the Constitutional Court's consideration of the constitutionality of the amendments introduced to it in 2004.

For the most part, the same people's deputies who adopted Law No. 2222-IV have today filed a constitutional petition to have it declared unconstitutional, justifying their petition by the fact that, in adopting the law, they violated the procedure.

Was there a procedural violation?

The Constitution provides that a draft law on introducing amendments to it is considered by the Verkhovna Rada provided there is an opinion of the Constitutional Court, which must determine whether the proposed changes provide for the abolition or restriction of human rights and freedoms.

Whether they are not aimed at eliminating independence or violating the territorial integrity of Ukraine, and also whether the constitutional conditions regarding the time of introducing amendments have been observed.

The logic of the constitutional order for introducing amendments presupposes that the opinion of the Constitutional Court must be provided specifically on the provisions of the draft in the wording that becomes law.

When Law No. 2222-IV was adopted in 2004, the people's deputies of Ukraine did indeed violate the procedure, at least in that, after the Constitutional Court provided its opinion on the draft law, amendments were introduced to it, but the draft law was not sent for a repeat opinion.

Let us recall that back in 1998, the Constitutional Court established by its decision that mandatory review applies not only to the draft law on introducing amendments to the Constitution of Ukraine, but also to "all possible amendments introduced to it in the process of its consideration."

Why is this issue being considered six years later?

The procedural violation in adopting Law No. 2222-IV is not a newly discovered circumstance. Scholars and experts, including experts from the Centre for Political and Legal Reforms, and the Venice Commission unanimously condemned the content and manner of introducing the amendments to the Constitution in 2004.

The problem of the dubious legitimacy of the introduced amendments did not arise now. However, for some reason the issue of the law's constitutionality was not considered at the first opportunity, but is being considered by the Constitutional Court only six years later. It is clear that a state cannot develop successfully under conditions where it is unknown whether the order by which it lives is legitimate or not.

If events had developed in the direction of affirming the supremacy of the Constitution, this issue should have been resolved at the first opportunity. And such an opportunity certainly existed. In 2007, 102 people's deputies appealed to the Constitutional Court with a petition to declare the law unconstitutional, motivated by the same arguments as today's repentant people's deputies.

However, on February 5, 2008, the Constitutional Court issued a ruling refusing to open proceedings in the case, since "the constitutional petition incorrectly states the full name, number and date of adoption of the legal act whose provisions are being contested."

The ground was formalized to the point of absurdity. But the greatest irony is that today's subjects of the constitutional petition indicated the same details of the law, yet this time the Constitutional Court opened proceedings in the case.

The solution to this simple logical problem is obvious: either proceedings should have been opened then, or they should be refused now.

In addition, the Constitutional Court could have considered the issue of the constitutionality of Law No. 2222-IV when providing interpretation of the relevant constitutional norms, or when establishing the conformity of laws with these constitutional norms. The Law on the Constitutional Court grants it such authority.

As it stands now, since the Constitutional Court both provided interpretation of constitutional norms that appeared after Law No. 2222-IV entered into force and assessed laws for conformity with these norms, it accepted them as constitutional, as a source of supreme law.

Therefore, by now adopting a decision on the unconstitutionality of the introduced amendments, the Constitutional Court would in fact be acknowledging that throughout the entire period of the new wording of the Fundamental Law, it ensured not the supremacy of the Constitution but the supremacy of lawlessness.

Instead, consideration of the issue of the constitutionality of Law No. 2222-IV then and now are radically different things. In the first case, when the introduced amendments had not yet produced legal consequences for the activity of state institutions, it would have been a defense of the supremacy of the Constitution.

Today, however, under conditions where for several years the people and the authorities lived under the new constitutional order, elections took place, the president as guarantor of the Constitution and all other power subjects recognized the new order, and the international community recognized the people's deputies and president elected under the new constitutional order, these norms have in fact already undergone their legitimization.

What are the legal consequences of a procedural violation?

Not every procedural violation in the adoption of an act must entail its annulment. The criterion here is whether it affected the content of the act. If so, then such a violation should serve as grounds for annulment of the act. If not, then at a minimum one must weigh which decision is more socially beneficial.

In electoral law, there is also a principle according to which voting results are annulled only if there were violations of electoral legislation that affected the election result.

If, for example, we are talking about violations that could have led to an error of five percent, while the gap between candidates is ten, then this should not be grounds for annulling the voting results.

A similar weighing of the degree of procedural violation, the content of the adopted law, and the social consequences of its annulment should also be present when considering the case on constitutional reform.

In the author's view, if the provisions of Law No. 2222-IV, on which the Constitutional Court did not provide an opinion, had been aimed at abolishing or restricting human rights and freedoms, at eliminating independence or the territorial integrity of Ukraine, then, of course, this law should have been declared unconstitutional, since the procedural violation affected the content of the norms.

Therefore, it would be logical if now, when considering this case, the Constitutional Court were to acknowledge the procedural violation and then determine what opinion it would have provided in 2004 on the draft law that became the law on introducing amendments to the Constitution of Ukraine and later became an organic part of the Constitution.

If it is determined that the opinion would have been positive, then, given all the political upheavals and other negative consequences that declaring the law unconstitutional would entail, one must think carefully about whether there is legal and social expediency for such a decision.

In fact, here a conflict arises between the principle of strict adherence to procedure and the principles of legal certainty and stability of the Constitution and the entire legal system.

In the event that Law No. 2222-IV is declared unconstitutional, it will be difficult to speak of any legal certainty and stability of the legal system.

The answers to the following questions depend on the Constitutional Court's decision: when to hold the next regular elections, whether elections held under unconstitutional provisions are legitimate, what to do with treaties, laws and other normative acts adopted during this time if they were adopted under an unconstitutional order.

And ultimately, whether appointed officials are empowered if the legal basis for their appointment was unconstitutional norms, and so on.

Moreover, such a decision by the Constitutional Court would create a dangerous precedent. It is unlikely that since 1996 one could gather even a dozen laws that were adopted without any procedural violation, since the constitutional requirement of voting at sessions of the Verkhovna Rada by a people's deputy personally is violated in practice at virtually every vote.

Not to mention other violations, when, for example, deputies holding multiple offices vote (more accurately, their cards vote), when laws are adopted in violation of the Rules of Procedure, and so on. What would these laws then represent?

The 1996 wording of the Constitution or the gaps in it?

Equally important is the question of what will happen if the Constitutional Court does declare Law No. 2222-IV unconstitutional.

The option whereby, after Law No. 2222-IV is declared unconstitutional, we return to the 1996 wording of the Constitution, seems to have a right to exist. For this it would be necessary for the Constitutional Court to be able to annul the law from the moment of its adoption, which would lead to a return to the legal state that preceded the adoption of the law.

Instead, the Constitution clearly and unambiguously establishes that laws recognized as unconstitutional lose force from the day the Constitutional Court adopts a decision on their unconstitutionality, including on grounds of procedural violation in their adoption.

Therefore, there are no more grounds for restoring the 1996 wording of the Constitution than for restoring the Constitutional Agreement, or even the wording of the Soviet Constitution.

But until now, when provisions of a law amending a law were declared unconstitutional, the previous wording of the law's provisions did not resume its effect. And not once until now has the Constitutional Court indicated in its decision that such provisions resume their effect, because it has no authority to restore something that once was in effect. The function of lawmaking is the exclusive competence of the Verkhovna Rada.

Thus, in the event that Law No. 2222-IV is declared unconstitutional, gaps in legal regulation of the activity of the highest state authorities will form in the Constitution.

That parliament will be able to fill these gaps by introducing the necessary amendments to the Constitution is highly doubtful. At the same time, the constitutional procedure for amending the Fundamental Law is quite lengthy in time.

If, however, the Constitutional Court, contrary to its previous legal positions (as already happened regarding the opening of proceedings in the case on constitutional reform), somehow restores the effect of the 1996 wording of the Constitution, then this will no longer be about legal relations, not about protecting the Constitution from politicians, protecting society from their usurpation of power, but on the contrary — about the Constitutional Court serving political power.