Constitutional Polilogue "Constitutional amendments: theory and practice in constitutional democracy"
On December 7, 2018, the International Constitutional Polilogue "Constitutional amendments: theory and practice in constitutional democracy" was held.
Speakers of the event were the Chairman of the Constitutional Court of Ukraine Stanislav Shevchuk, Judge of the Constitutional Court of Ukraine Vasyl Lemak, Judge of the Court of Cassation in the Supreme Court Alla Lesko, Judge of the Supreme Court Dmytro Hudyma, President of the National Academy of Legal Sciences of Ukraine Oleksandr Petryshyn, President of the National School of Judges of Ukraine Mykola Onischuk, Senior Project Officer of the OSCE Project Co-ordinator in Ukraine Jeffrey A. Erlich, member of the Venice Commission, President of the Constitutional Court of Moldova (2011-2017) Alexandru Tănase, expert of the Venice Commission, President of the Constitutional Court of Georgia (2011-2016) George Papuashvili, Judge of the Constitutional Tribunal of Poland (2007-2016) Mirosław Granat, advisor of the Speaker of Lithuanian Seimas Vaidotas Verba, Head of the Committee on Constitutional Law, Administrative Law and Human Rights of the Ukrainian Bar Association Alyona Shulima, OSCE PCU national legal advisor, consultant of the Constitutional Commission Oleksandr Vodiannikov, Director of the Research Institute for Comparative Public Law and International Law of Uzhhorod National University Mykhailo Savchyn, member of the Board of the Center for Policy and Right Reforms, Head of projects on constitutional law Julia Kyrychenko.
The constitutional polilogue was attended by the Deputy Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi, judges of the Constitutional Court of Ukraine Serhiy Holovaty, Ihor Slidenko, Natalia Shaptala, former judges of the Constitutional Court of Ukraine Ivan Dombrovski, Mykhailo Kostytskyi, Petro Stetsiuk, Volodymyr Tykhyi, Viktor Shyshkin, scholars, students, representatives of NGOs and media.
The program of the event included three panel discussions, during which the participants discussed the role of the constitutional courts in controlling amendments to the Constitution, the expectations and achievements of the constitutional reform of 2016, as well as the issues of European and Euro-Atlantic integration.
The event was opened by the Chairman of the Constitutional Court of Ukraine Stanislav Shevchuk. He emphasised that the body of constitutional control of Ukraine is open to friendly communication, exchange of views and sound criticism. According to the speaker, the Constitutional Court of Ukraine follows the rule of law, the Constitution and relies on the expert opinion of the scholars. "The decisions of the Constitutional Court of Ukraine are based on the doctrine and the Fundamental Law of the state", he added.
Stanislav Shevchuk stressed the fact that the Constitution of Ukraine and the decisions of the Constitutional Court of Ukraine impose a standard on the entire legal system of the country. In his opinion, the decisions of the Constitutional Court cannot be too formalistic. "As a marble sculptor carves out sculptures, constitutional court formulates its doctrine based on the Constitution", he said. The speaker stressed that it was through the decision of the Constitutional Court of Ukraine that the content and values hidden behind the test of the Constitution have been revealed.
The Constitution is an act of the constituent power of the people, which is aimed at democracy, noted Chairman of the Court. "The basis of democracy lies in the Constitution, and the country's authorities must act in accordance with the Fundamental Law", he stressed.
Senior Project Officer of the OSCE Project Co-ordinator in Ukraine Jeffrey A. Erlich addressed the guests with a welcoming speech. He noted that "constitutional reform" is a term that describes the changes taking place in the management of the state. Thus, the speaker added, there is a "revision" of the country's legal system.
Jeffrey A. Erlich noted that amendments to the Constitution of Ukraine in the area of justice had also affected the functioning of the Constitutional Court of Ukraine. The constitutional reform in Ukraine, according to him, opened the door to the Constitutional Court of Ukraine for ordinary citizens.
The speaker emphasised that the rule of law is a guarantee of democracy, security and peace in the world. "The weakness of the legal system leads to problems not only in one country, but also in neighboring countries", he stressed.
The expectations and achievements of the constitutional reform of 2016 were discussed during the first panel discussion, moderated by a lawyer Nataliia Kovalko.
Judge of the Constitutional Court of Ukraine Vasyl Lemak analysed the results of the constitutional reform of 2016, as well as the introduction of the constitutional complaint in Ukraine.
According to the judge of the Constitutional Court of Ukraine, the constitutional reform had beeb one of the most successful in the legal sphere, in particular in the procedural aspect. "Analysis of the reform gives grounds to talk about its positive results. This is the creation of the Supreme Court and the formation of its composition on a competitive basis, competitive principles for the election of judges of the Constitutional Court of Ukraine, consolidation of real guarantees of the independence of judges and a number of other important aspects", said Vasyl Lemak.
In the context of the constitutional amendments, judge of the Constitutional Court of Ukraine also dwelt upon the institute of constitutional complaint. "The constitutional complaint is a definite challenge for society, at the same time, it is the greatest achievement of the judicial reform, since a person becomes able to appeal the law in the Constitutional Court of Ukraine", he said.
According to Vasyl Lemak, with the introduction of the constitutional complaint, the list of issues considered by the Court has considerably expanded, covering virtually all spheres of public life. He added that most often in constitutional complaints questions were raised about "quasi-social" rights and certain norms of the Criminal Procedural Code of Ukraine.
In addition, the judge of the Constitutional Court noted, the number of constitutional complaints is constantly increasing, which indicates that the society trusts the Court, people turn to the Court and look forward to resolving legal issues.
Vasyl Lemak also analysed the decision of the Constitutional Court of Ukraine, by which the Court declared the Law of Ukraine "On an All-Ukrainian Referendum" as unconstitutional. He stressed that this decision was extremely important, since the relevant law had created a danger to the constitutional system.
Judge of the Court of Cassation in the Supreme Court Alla Lesko spoke about the trust of the society in the courts, as well as the principle of the independence of the judiciary.
According to her, the legislation contains enough levers to ensure the independence of judges. Questions of independence and trust are interdependent, the speaker noted, since there will be no confidence in a judge whose independence can be called into question.
Alla Lesko also emphasised that the principle of independence should be formed in the minds of judges, the legal community, politicians and society.
Judge of the Supreme Court Dmytro Hudyma continued the discussion on trust in the judiciary. He stressed that institutional reforms, launched after the Revolution of Dignity, already provide some credibility, and trends in increasing public confidence in the courts are the result of successful judicial reform. Among the positive changes, he noted the depoliticisation in the field of appointment of judges, the formation of a three-layer judicial system, an effective mechanism for monitoring the execution of court decisions.
Also, Dmytro Hudyma stressed that the decisions of the courts should be clear to the public. "The reasonableness of the decisions and their statement in a clear language is an instrument which will increase the trust of the society in the courts," the judge of the Supreme Court noted.
Rector of the National School of Judges of Ukraine Mykola Onischuk spoke about the results of judicial reform, the implementation of the constitutional doctrine, principles, constitutional imperatives and norms.
Mykola Onischuk emphasised that the improvement of justice was identified as the main priority of constitutional creation, and the work of the Constitutional Commission was focused on making real changes in the area of justice. Without the existence of fair justice in Ukraine, the speaker stressed, it makes no sense to speak about the effectiveness or ineffectiveness of organising public power, since it is human rights and their protection, and with the protection carried out, first of all, through justice, that form the basis of our being and determine the content, expediency of the existence of all others public forms of the existence of society and state.
In his opinion, the fundamental design was chosen correctly, since it was grounded on the experience of the international community and the case law of European courts. He also spoke about the implementation of the constitutional doctrine, principles, constitutional imperatives, norms, and how effective they are when we speak about the justice system. Mykola Onischuk also noted that today, according to the normative model, the organisation of the justice system in Ukraine is one of the best.
Oleksandr Petryshyn, President of the National Academy of Legal Sciences of Ukraine, dedicated his speech to peculiarities of introducing amendments to the Constitution of Ukraine.
He noted that the Constitution is not only a text; it is what is laid down in it. When one talks about the Constitution, he often underestimates such component as principles, Oleksandr Petryshyn emphasised. At the same time, he noted that the preamble of the Basic Law is an integral part of it.
In his speech, he also cited examples of the countries that often amend their constitutions, noting that the relevant amendments do not contribute to economic growth or improvement of other indicators of state development.
Judge of the Constitutional Tribunal of the Republic of Poland (2007-2016), Mirosław Granat, highlighted that Poland had a special way to join the European Union and NATO. When the new Constitution was adopted in 1997, its authors still had no idea where the country would move, since the Soviet Army was still confidently holding its positions.
As the former judge remarked, the Polish Constitution did not make any comments regarding the EU or NATO, and in this way, in his opinion, the Polish approach differs from the Ukrainian one. "Poland has fixed the European course by interpreting the Constitution by the Constitutional Tribunal," the speaker stressed. According to him, thanks to the activities of the Constitutional Tribunal of the Republic of Poland, international agreements were adopted and recognised as being in compliance with the Basic Law of the country.
Mirosław Granat emphasised the fact that the Constitution of Poland defined its higher legal force in the legal system of the country. According to him, European legislation is applied in accordance with the legal doctrine.
Advisor of the Speaker of Lithuanian Seimas Vaidotas Verba spoke about Lithuania's experience of the country’s membership in the European Union. According to him, legal proceedings and legal changes took place in the country after accession to the EU. "Thus, there was adaptation to the new legal platform," he added.
Vaidotas Verba stressed that the processes of integration into the EU began immediately after Lithuania had gained independence. He noted that in the referendum of 2004, 95% of Lithuanian citizens voted for EU membership. "This was a personal choice for every citizen of the country," added the spokesperson.
According to Vaidotas Verba, the issue of EU membership is a matter of civilization's choice of the country. And today, he added, Ukraine understands where it wants to be.
President of the Constitutional Court of the Republic of Moldova (2011-2017) Alexandru Tănase noted that Ukraine is passing through the dramatic period of history - the annexation of the Crimea and Russian aggression in the East. He underlined that Moldova supports Ukraine in this difficult time.
The speaker stressed that Ukraine faces many challenges, in particular, strengthening constitutional values, moving in the European direction and strengthening the military-defense potential of the country. "Strengthening the system of constitutional values is of paramount importance today," he added.
According to Alexandru Tănase, it is important to consolidate the European aspirations of the Ukrainians in the Constitution of Ukraine. Thus, he said, Ukraine is a European country with a common history and values with Europe.
Alexandru Tănase stressed that Ukraine, Moldova, Georgia, and Poland - the countries that have always been at the crossroads of the interests of the great powers that have sought to trade. "Therefore, Ukraine has made an important strategic step forward in order to secure its European aspirations and withdraw from Soviet traditions," he concluded.
George Papuashvili, expert of the Venice Commission, President of the Constitutional Court of Georgia (2011-2016), pointed out that Ukraine was a unique example when people died under the banners of the European Union. "The events of the Revolution of Dignity demonstrate a clear choice of the country," he added.
George Papuashvili spoke about the challenges faced by Georgia in view of the European integration. Thus, the expert said, the Georgian Parliament has already taken a number of steps in order to join Georgia to the EU; in particular, the relevant amendments to the Constitution of Georgia are currently being introduced.
Director of the Research Institute for Comparative Public Law and International Law of Uzhgorod National University Mykhailo Savchyn focused on the importance of socio-political debate. The scholar expressed the opinion that the implementation of the Constitution begins precisely with the socio-political debate, but society must be prepared for this.
Mykhailo Savchyn also described the role of the state and its bodies in ensuring human and citizen’s rights and freedoms, as well as some aspects of the discretion of the Constitutional Court of Ukraine in applying international law.
Oleksandr Vodiannikov, OSCE PCU national legal advisor, consultant of the Constitutional Commission, delivered a speech on constitutional populism as a threat to the constitutional values underlying contemporary constitutionalism. According to him, the idea of modern constitutionalism lies in the fact that there are material guarantees against the abuse of power, totalitarianism and the seizure of power.
In addition, he noted the fundamental values on which modern constitutionalism was built, in particular, the state in which constitutional rights and freedoms should acquire legal content, there should be a body responsible for protecting the Constitution and constitutional values, etc.
The speaker warned that violation of these values may lead to the fact that the nation will not have future.
Member of the Board of the Centre for Policy and Legal Reform, Manager of the Projects on Constitutional Law Yulia Kyrychenko noted the role of the constitutional courts in controlling amendments to the Constitution. Yulia Kyrychenko stressed that the Constitutional Court must be strong in order to become a so-called "barrier". She also pointed out that the role of the Constitutional Court of Ukraine in terms of constitutional populism is extremely important.
Yulia Kyrychenko dwelt upon the issues of transparency of the Court, promotion of its decisions and other important aspects of the activity of the Constitutional Court.
The third panel discussion was moderated by professor of the Department of Constitutional Law of the Law Faculty of Ivan Franko Lviv National University Serhii Riznyk, who noted, among other things, that amendments to the Constitution are not always good, and therefore there should be applied a very balanced approach.
During the third panel discussion, the Chairman of the Constitutional Court of Ukraine Stanislav Shevchuk pointed out that the Constitution of Ukraine combines the normative part, as well as is a collection of fundamental principles and values that together provide freedom of the person against the arbitrariness of the state power.
The Chairman of the Court stressed that the Constitutional Court of Ukraine protects the Constitution of Ukraine as an act of the highest legal force. According to him, constitutional values are disclosed precisely through the decisions of the body of constitutional jurisdiction.
The speaker noted that the Constitutional Court of Ukraine is undergoing a new stage in its activities. Decisions of the body of constitutional control, he said, are conceptual in their nature. In his opinion, the society needs a professional, authoritative and independent Constitutional Court of Ukraine, which will act as the guarantor of constitutional justice, strengthen democracy and the state as a whole.
The Chairman of the Court told that during this year, the Constitutional Court of Ukraine provided four opinions in cases upon the constitutional appeals of the Verkhovna Rada of Ukraine for providing an opinion on compliance of the draft law on introducing amendments to the Constitution of Ukraine. "The opinions of the Constitutional Court of Ukraine are not only consultative, they are mandatory," he stressed. Thus, referring to the Opinion of the Constitutional Court on the compliance of the draft law on introducing amendments to the Constitution of Ukraine (on abolishment of parliamentary immunity) the Court noted that one should be cautious as to the restriction of parliamentary immunity, since it is important to ensure the ability of people's deputies to freely and effectively exercise their powers.
In conclusion, the Chairman of the Constitutional Court of Ukraine emphasised that the introduction of amendments to the Constitution of Ukraine is sometimes a real need, and at the same time, we need to learn to live according to the Constitution of Ukraine, instead of trying to amend it. He noted that the Basic Law of the country is responsible for all the values, and therefore cannot be equated with ordinary law. According to the speaker, the Constitution may be amended, but fundamental rights proclaimed therein cannot be attacked. Stanislav Shevchuk cited the words of Thomas Jefferson who believed that every generation should amend the constitution, because "the dead cannot rule the live", yet James Madison reversed it.
The Chairman of the Constitutional Court of Ukraine thanked national and international experts for their participation in the Constitutional Polilogue, fruitful dialogue and constructive discussions. "Serving the Constitution is our common mission," he concluded.
