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Viche 2014 12

12, 2014

Legal Requirements for the Procedure for Amending the Constitution of Ukraine

On the basis of modern legal thinking, the latest achievements of the national science of constitutional law, the newest sources of this law, as well as an analysis of the Constitution and the laws of Ukraine, legal requirements for the procedure for amending the Basic Law of the state are examined. The stages of this procedure are presented. The comparative analysis of proper procedures concerning the Constitution and laws of Ukraine is made.
Keywords: the Constitution of Ukraine, legal requirements, procedure for amending the Basic Law

Nowadays, Ukraine is probably experiencing the most difficult times during all the period of its modern history. The crisis has affected almost all spheres of social life, including the political. However, the new political forces that have come to public power are currently working on the development of the Ukrainian state and its civil society. In February 2014, the Verkhovna Rada of Ukraine adopted the Law On Restoring the Specific Provisions of the Constitution of Ukraine and, therefore, changed the presidential and parliamentary form of government of the country to one which is parliamentary and presidential [2]. The constitutional majority (386 votes) of the Parliament of Ukraine restored the Constitution of Ukraine as worded on 28 June 1996 and amended by the laws of Ukraine 2222­IV of 8 December 2004, 2952­VI of 1 February 2011, and 586­VII of 19 September 2013 [1] initiating a new phase of the constitutional process in independent Ukraine.

The Basic Law of the state has needed and still requires further significant improvements. In order to exercise this detailed work, the authorities established the Constitutional Assembly, and now the Temporary Special Commission of the Verkhovna Rada of Ukraine on elaboration of the draft law on amendments to the Constitution of Ukraine is acting in this area. In particular, on 29 April 2014, the legislative authority held its parliamentary session in the form of public hearings to debate the constitutional reform. These legislative changes were also discussed during three all­Ukrainian round­tables on national unity to have been organized in May.

On 20 May 2014, by adopting the Memorandum of Understanding and Peace, the Verkhovna Rada of Ukraine called for the de­escalation of tensions within Ukrainian society and, on the basis of its constitutional powers, committed itself to ensuring the urgent reform of the Basic Law. This reform is based on the decentralization of power and, according to the Peoples Deputies, should envisage: confirmation of the status of Ukraine as a parliamentary and presidential republic having a balance of power between all its branches at the national and local levels; ensuring of regional powers with necessary financial resources due to equitable distribution of revenues of the state and local budgets; judicial reform to guarantee the citizens rights to fair and just trial and to strengthen independence of the judicial system; reformation of the law enforcement bodies and public prosecution service, in particular, through the elimination of the latters general supervision function; fight against corruption at all levels of state authorities and increase of control over the activities of their officials [4].

Implementation of such a comprehensive reform is possible only through the introduction of amendments to the Basic Law of the state. Constitutional provisions foresee general and special (institutional) procedures for their introduction. The first one envisages that the relevant draft law may be submitted to the Verkhovna Rada of Ukraine only by the subjects specified in the Basic Law of the state, i.e. the President of Ukraine or at least one third of the Peoples Deputies of the constitutional structure of the Parliament of Ukraine (Article 154) [1]. After that, it shall be adopted by the debating chamber according to the defined procedure for its consideration.

Special (institutional) procedure provides for constitutional amendments to certain sections of the Basic Law, including Section I General Principles, Section III Elections. Referendum, Section XIII Amendments to the Constitution of Ukraine. The relevant draft law shall also be submitted to the Parliament by the President or Peoples Deputies of Ukraine, though their number should not be less than two thirds of the constitutional structure of the Verkhovna Rada of Ukraine. Being confirmed by the positive judgment of the Constitutional Court of Ukraine this draft law shall be adopted by no less than two thirds of the constitutional structure of the Parliament and approved as the law by the all­Ukrainian referendum initiated by the President of Ukraine (Part 1 of Article 156) [1].

Researches on the procedure for amending the Constitution of Ukraine were started and are being conducted by scientists of the National Academy of Legal Sciences of Ukraine, V. M. Koretsky Institute of State and Law of the NAS of Ukraine, the Legislation Institute of the Verkhovna Rada of Ukraine, some judges of the Constitutional Court of Ukraine and scholars of the higher education establishments [Ievgrafov, 2007: 63­66; Opryshko, 1996: 340; Tatsii, 2011: 1076­1077; Rudyk, 2009: 72­75; Shemshuchenko, 2002: 680, etc.]. However, the above­mentioned problem requires systematic exploration.

According to the general constitutional procedure, provisions for amending the Basic Law are contained in Article 155 of the Constitution of Ukraine. It identifies the issues on preliminary approval of the draft laws concerning amendments to the following sections of the Basic Law of the state: Section II Rights, Freedoms and Duties of Man and Citizen, Section IV The Verkhovna Rada of Ukraine, Section V The President of Ukraine, Section VI The Cabinet of Ministers of Ukraine. Other Bodies of Executive Power, Section VII Public Prosecution Service, Section VIII Justice, Section IX Territorial Structure of Ukraine, Section X The Autonomous Republic of Crimea, Section XI Local Self­Government, Section XII The Constitutional Court of Ukraine, Section XIV Final Provisions, and Section XV Transitional Provisions. After that, this Article prescribes final adoption of such laws. The current Constitution of Ukraine envisages special procedures for amending these sections to be significantly complicated compared to the procedure for adopting and amending the other laws. Whilst ordinary laws are passed by the majority of the Verkhovna Rada of Ukraine (by no less than 226 votes), the constitutional laws shall be adopted by two thirds of the constitutional structure of the Parliament (by at least 300 votes) (articles 91, 155 of the Basic Law) [1].

The Constitution of Ukraine enshrines the exclusive powers of the Verkhovna Rada to amend the Basic Law as one of the first provisions. The powers of Parliament include introduction of amendments to the Constitution of Ukraine within the framework of and in the manner specified in Section XIII of the Basic Law of the state (Item 1 of Part 1 of Article 85) [1]. These powers are independently exercised by the Verkhovna Rada of Ukraine in accordance with the procedure provided by the Law of Ukraine 1861­VI On Regulations of the Verkhovna Rada of Ukraine of 10 February 2010 [3].

There are various scientific approaches to the determination of the stages to adopt the law on amendments to the Constitution of Ukraine (in particular, see [Telipko, 2008]). Some of them emphasize that its adoption is conducted in two stages: the first one includes discussion and a preliminary approval of the draft law by the majority of the Peoples Deputies of the constitutional structure of the Verkhovna Rada, and the second one envisages the final arrival at a decision (adoption of the law on amendments to the Constitution of Ukraine supported by two thirds of the constitutional structure of the Parliament) [Opryshko, 1996: 340].

Other scientists divide the procedure for amending the Basic Law of the state into three stages [Tatsii, 2011: 1076­1077]. Agreeing with this we should note that the nature of each stage is a little bit controversial. At the first stage, according to the Constitution and the Law of Ukraine On Regulations of the Verkhovna Rada of Ukraine, the draft law on amendments to the Constitution of Ukraine is submitted to the Parliament, included on its agenda, debated at the plenary session, and primarily approved. The Verkhovna Rada shall adopt its legal recourse to the Constitutional Court of Ukraine in order to receive the judgment on congruence of the draft law with the requirements of articles 157 and 158 of the Constitution of Ukraine (articles 155 and 159 of the Constitution; Article 146 of the Law On Regulations of the Verkhovna Rada of Ukraine).

So, Part 4 of Article 146 of the Regulations states that a draft law on amendments to the Constitution of Ukraine shall be included on the agenda of the session of the Verkhovna Rada of Ukraine in order to submit it (together with the legal recourse of the Parliament) to the Constitutional Court of Ukraine, and to preliminarily approve it in the debating chamber of the Parliament (Article 155 of the Basic Law). By taking the decision to include the draft law on the agenda of the session, the Parliament solves several issues which can be specified as follows: preparation of the decision to adopt the rule on a legal recourse to the Constitutional Court of Ukraine regarding this draft law; its publication for nation­wide discussion; submission of the document for scientific, legal or other expert review, as well as the conducting of scientific research or studies for a period of time lasting until the Verkhovna Rada adopts the rule on a legal recourse to the Constitutional Court of Ukraine; postponement of the adoption of the rule on such a legal recourse prior to the beginning of certain circumstances or performance of certain actions (items 1, 2, 3, 4 of Part 7 of Article 146 of the Law On Regulations of the Verkhovna Rada of Ukraine). If the draft law on amendments to the Constitution of Ukraine is included on the agenda of the session, the Verkhovna Rada may take the decision to establish a special commission to be the major institution for working on and deeply studying it (Part 9 of Article 146 of the Law).

As has been mentioned, the Verkhovna Rada considers the publication of the draft law on amendments to the Constitution of Ukraine at its plenary session. In case of a rejection of such a decision, the draft law shall be published in the official printed editions for citizens information only, and may also be published in other media. Thereupon, it is necessary to specify all the drafts people of the whole law or of its structural parts, as well as the initiator of its submission to the Verkhovna Rada of Ukraine (Part 8 of Article 146 of the Law) [3].

The second stage of the procedure for amending the Constitution of Ukraine should be considered as an obtainment of the judgment of the Constitutional Court of Ukraine on congruence or noncongruence of the draft law with the requirements of articles 157 and 158 of the Basic Law of the state by the Verkhovna Rada. Existence of such a judgment is mandatory for considering the draft law by Parliament. This preliminary review prevents violations of the requirements contained in articles 157 and 158 of the Constitution of Ukraine which is prescribed by Article 159 of the Basic Law and by Part 10 of Article 147 of the Law On Regulations of the Verkhovna Rada of Ukraine.

The judgment of the Constitutional Court may be positive or indicate that a draft law violates the requirements contained in articles 157 and 158 of the Basic Law. It should promptly be submitted to the Peoples Deputies and directed to the President of Ukraine. Obtainment of the judgment should be reported by the Head of Parliament at the earliest plenary session of the Verkhovna Rada of Ukraine. If the draft law is generally recognized to be in congruence with the requirements of articles 157 and 158 of the Basic Law of the state and the sole body of constitutional jurisdiction did not enter reservations to its provisions, the issues on preliminary approval of the draft law on amendments to the Constitution of Ukraine are included on the agenda of the plenary session of the Verkhovna Rada. According to Article 155 of the Constitution of Ukraine, that should be done no earlier than 7 days after the Peoples Deputies have received the proper conclusion on the judgment of the Constitutional Court of Ukraine from the main Committee of the Parliament or during any other period specified by the parliamentarians. The main Committee and other committees of the Parliament entrusted with further work on the draft law shall prepare conclusions on its content (Item 11 of Article 147 of the Law On Regulations of the Verkhovna Rada of Ukraine). Pursuant to Part 5 of Article 149 of this Law, the Verkhovna Rada of Ukraine may consider this draft law and take decision on its preliminary approval.

In the case when the Constitutional Court declared that the whole draft law or some of its provisions are not in congruence with the requirements of articles 157 and 158 of the Basic Law, as well as entered its reservations to some provisions of the draft law, the Verkhovna Rada shall settle the issue on further work on the draft law. In particular, it instructs the main and other committees of the Parliament to complete the draft law taking into account the judgment of the Constitutional Court, and to discuss each item of and amendment to the document in accordance with the procedure for considering draft laws at the second reading (articles 119 and 120, Part 1 of Article 151 of the above­mentioned Law).

The decisions to take into account proposals and corrections to the draft law on amendments to the Constitution of Ukraine shall be made by the majority of the Peoples Deputies of the constitutional structure of the Parliament (Article 155 of the Constitution). After having taken such decisions, the legislative authority adopts the rule on a legal recourse of the Verkhovna Rada to the Constitutional Court of Ukraine in order to obtain the latters judgment on congruence of the revised draft law on amendments to the Constitution of Ukraine with the requirements of articles 157 and 158 of the Basic Law (parts 2, 3 of Article 151 of the above­mentioned Law), and submits this legal recourse to the body of constitutional jurisdiction.

It should be noted that, according to the Law of Ukraine On Regulations of the Verkhovna Rada of Ukraine, the preliminary approval of the draft law on amendments to the Constitution of Ukraine (prescribed by Article 155 of the Basic Law) cannot be considered at the last session of Parliament. The issue on preliminary approval and further consideration of such a draft law shall be included on the agenda of the first session of the newly elected Verkhovna Rada of Ukraine without voting (Part 2 of Article 149 of the Law).

However, the newly elected Verkhovna Rada of Ukraine cannot consider the issue on adoption of the draft law on amendments to the Constitution of Ukraine which, according to Article 155 of the Basic Law of the state, has preliminarily been approved by the Parliament of the previous convocation but has not been adopted as law. In this case, the Regulations prescribe that such a draft law is considered not to have been adopted by the Verkhovna Rada of the previous convocation. In line with the requirements of Part 1 of Article 158 of the Basic Law, the draft law on amendments to the Constitution of Ukraine, that has been considered by the Verkhovna Rada of Ukraine but has not been adopted as law, shall be submitted to Parliament no earlier than one year from the date when the decision on that draft law was taken (Part 3 of Article 149 of the Law On Regulations of the Verkhovna Rada of Ukraine).

The third stage of the procedure for amending the Constitution of Ukraine should include consideration of a draft law on amendments to the Basic Law of the state at the next session of Parliament and adoption of the law on this issue by the Verkhovna Rada of Ukraine. It can take place only if such a draft law is voted for by at least two thirds of the Peoples Deputies of the constitutional structure of the Verkhovna Rada (Article 155 of the Constitution). So, if at the second stage of the procedure for amending the Constitution the preliminary approval of the draft law on amendments to the Basic Law of the state has to be voted for by a simple majority of the Peoples Deputies of the constitutional structure of the Parliament (by at least 226 Peoples Deputies), at the third stage of this procedure the draft law should be supported by two thirds of the structure of the Verkhovna Rada (by at least 300 Peoples Deputies) and, thereby, it turns into the law.

We should note that consideration of the draft law at the second stage of the procedure for amending the Constitution of Ukraine should take place in compliance with the requirements of the Law On Regulations of the Verkhovna Rada of Ukraine of 10 February 2010. In particular, Parliament may pass a draft law envisaged by Article 155 of the Constitution of Ukraine only under the following circumstances: firstly, when, according to the judgment of the Constitutional Court of Ukraine, it meets the requirements of articles 157 and 158 of the Basic Law; secondly, when the Constitutional Court did not enter any reservations to it; thirdly, when, pursuant to Article 155 of the Constitution, it was preliminarily approved by the Verkhovna Rada of Ukraine of the current convocation at the previous regular or special session of the legislative authority (Part 6 of Article 149 of the Law On Regulations of the Verkhovna Rada of Ukraine) [3].

The Regulations provisions indicate the need for hugging certain rules of procedure in the case of simultaneous comprehensive amending of all the sections of the Constitution of Ukraine. Item 6 of Article 143 of the above­mentioned Law stipulates that in the case of simultaneous comprehensive amending both the sections of the Constitution of Ukraine mentioned in Article 155 (sections II, IV­XII, XIV, XV) and the sections of the Basic Law specified in Part 1 of Article 156 (sections I, III, XIII), the initiator of such amendments shall synchronously submit two separate interrelated draft laws to the Verkhovna Rada of Ukraine. This Item contains another requirement: such draft laws should also include provisions according to which their entries into force are to be combined and brought into step; and in the case when one of these draft laws has not been adopted by the Verkhovna Rada of Ukraine or approved by the all­Ukrainian referendum, the other draft law (to be related to it) shall not also take effect.

One should also analyze some of the provisions of the Constitution of Ukraine concerning its Article 155, particularly the following one: the draft law preliminarily approved by the majority of the constitutional structure of the Verkhovna Rada of Ukraine [1]. We may note that consideration of the collocation preliminarily approved to be contained in legislative acts and legal literature varies. In our view, P. Ievgrafov was competent in expressing his opinion on that issue. Based on an analysis of legislative acts he concludes that a draft law may preliminarily be approved only when the Constitutional Court of Ukraine has made its positive judgment on congruence of the draft law on amendments to the Constitution of Ukraine with the requirements of articles 157 and 158 of the Basic Law. However, in practice, the Verkhovna Rada of Ukraine has preliminarily approved draft laws without a positive judgment of the supreme body of constitutional jurisdiction [Ievgrafov, 2007: 63­66].

Other legal scientists interpret the term preliminary approval of a draft law in a restrictive way, i.e. as consideration and approval of the draft law by the majority of Peoples Deputies of the constitutional structure of Parliament without a positive judgment of the Constitutional Court of Ukraine. In their opinion, this judgment is to be provided after preliminary approval of the draft law by the Verkhovna Rada of Ukraine. Although, that does not preclude the possibility of making subsequent alterations and supplements to the draft law. Since preliminary approval is not a final decision, it is voted for by a simple majority of the Peoples Deputies of the constitutional structure of Parliament [Opryshko, 1996: 340].

The analysis of this interpretation of the term preliminary approval of a draft law points out that this concept should imply a positive attitude of the majority of the Peoples Deputies to the draft law. However, we believe that the interpretation of this term proposed by P. Ievgrafov is more acceptable, as it encourages the development of draft laws having higher quality in their content and form. Restricted interpretation of the term preliminary approval of a draft law does not always contribute to the qualitative elaboration of the document in practice. It also defers adoption of the laws on amendments to the Constitution of Ukraine, as the judgments of the Constitutional Court often contain requirements on the draft laws improvements. Thus, the procedure for preliminary approval of a draft law should be improved.

Lets pay attention to the following provision of Article 155 of the Constitution of Ukraine: the final decision on the draft law on amendments to the Basic Law of the state is taken only at the next regular session of the Verkhovna Rada of Ukraine. In accordance with Part 1 of Article 83 of the Constitution of Ukraine, regular sessions of the Parliament are held twice a year: one of them begins on the first Tuesday of February and the other one starts on the first Tuesday of September each year [1]. The provision of the Constitution on adoption of the law at the next regular session of the Verkhovna Rada of Ukraine is aimed at its balanced consideration which is carried out without any hurry. This provision implies that such a draft law cannot be considered by the Verkhovna Rada during its special sessions. In line with Part 2 of Article 83 of the Constitution of Ukraine, special sessions of Parliament are convened by the Head of the Verkhovna Rada of Ukraine at the request of the President of Ukraine or at least one third of the Peoples Deputies of the constitutional structure of Parliament. In our view, special sessions of the Verkhovna Rada of Ukraine should be held during the inter­sessional periods in order to solve global problems of social, economic, environmental, and international nature which occur suddenly and unpredictably and require immediate settlement. However, we should note that the Law of Ukraine On Regulations of the Verkhovna Rada of Ukraine leaves open the possibility of preliminary approval of the draft law on amendments to the Constitution of Ukraine not only at the regular, but also at the special sessions of Parliament (Part 6 of Article 149 of this Law) [3].

Analyzing the provisions of Article 155 of the Constitution of Ukraine, one should pay attention to another important aspect. Pursuant to their powers, the President of Ukraine should sign the law on amendments to the Constitution of Ukraine adopted by at least two thirds of the constitutional structure of the Verkhovna Rada of Ukraine. However, Section XIII of the Constitution of Ukraine does not establish the period for signing this law by the head of the state. According to the Basic Law (Part 2 of Article 94), an ordinary law shall be signed by the President of Ukraine within fifteen days from the date when it was submitted by Parliament. It shall take effect in ten days from the date of its official divulgation, unless otherwise provided by the law itself, but no earlier than the date of its publication (Part 5 of Article 94) [1]. The same principle can similarly be applied to the law on amendments to the Constitution of Ukraine; however, that issue needs clearer legal regulation. Thus, the analysis of the provisions of the Constitution of Ukraine indicates the sophistication of constitutional and legal requirements of the procedure for amending the Basic Law of the state in comparison with the procedure for amending ordinary laws of Ukraine.

 

References

1. 28 1996 . , 2222­IV 8 2004 ., 2952­VI 1 2011 ., 586­VII 19 2013 ., 742­VII 21 2014 . [The Constitution of Ukraine, 28 June 1996, as revised by laws 2222­IV, 8 December 2004; 2952­VI, 1 February 2011; 586­VII, 19 September 2013; 742­VII, 21 February 2014], <http://zakon4.rada.gov.ua/laws/show/254%D0%BA/96­%D0%B2%D1%80>

2. 䳿 . 742­VII 21 2014 . [On Restoring the Specific Provisions of the Constitution of Ukraine. The Law of Ukraine 742­VII, 21 February 2014], <http://zakon4.rada.gov.ua/laws/show/742­18>

3. . 1861­VI 10 2010 . [On Regulations of the Verkhovna Rada of Ukraine. The Law of Ukraine 1861­VI, 10 February 2010], <http://zakon4.rada.gov.ua/laws/show/1861­17>

4. . 1280­VII 20 2014 . [On the Memorandum of Understanding and Peace. The Rule of the Verkhovna Rada of Ukraine 1280­VII, 20 May 2014] (2014), , 24 May.

5. Ievgrafov P. (2007) : (20042007). : ­ [The Constitution of Ukraine: Comments on changes (2004­2007). Theoretical and practical aspects: Scientific and practical handbook]. : .

6. Rudyk P. (2009) : 2­ . [Comments on constitutional changes: 2nd ed.]. : .

7. Telipko V. (2008) : [Mechanism of adoption of the Constitution of Ukraine: In search of the ultimate solution], ³ 20: 1216.

8. : ­ [Comments on constitutional changes: Scientific and popular edition] (1996), Opryshko V., and others (eds.). : ­ .

9. : ­ : 2­ . [The Constitution of Ukraine: Scientific and practical comments: 2nd ed.] (2011), Tatsii V., Petryshyn O., Barabash I., and others (eds.). : .

10. [Legal encyclopedia] (2002): in 6 volumes: Volume 4, Shemshuchenko I. (ed.). : . .

Petro RUDYK