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The article analyzes the current problems of implementation of the constitutional and legal status of the Verkhovna Rada of Ukraine, which occur while performing the parliament’s functions in the relations with the Constitutional Court of Ukraine.
Key words: parliament, constitutional jurisdiction body, system of checks and balances.
Problem statement. Establishing the legal statehood, strengthening the principles of rule of law (Constitution) and the need to ensure a real separation of powers and, eventually, constitutional rights and freedoms of an individual in the modern Ukraine actualizes the necessity to study the problem of ensuring apolitical status of the constitutional jurisdiction body in the system of checks and balances [ 3; 124].
Analysis of the latest studies. Scope of the study is reflected in the works of such native scientists as V. Shapoval, A. Sovhyri, V. Telipka, H. Fedorenko, R. Martynyuk, V. Kovalchuk, Yu. Barabash, and others.
Objective of the study is to analyze the current problems of implementation of the constitutional and legal status of the Verkhovna Rada of Ukraine in relations with the Constitutional Court of Ukraine and the search for ways and means to overcome these problems.
Presentation of the main material of the study. First of all, we consider it appropriate to draw attention to the issue of normative regulation of the Court’s formation agenda. Verkhovna Rada of Ukraine, as well as President of Ukraine and the Congress of Judges of Ukraine elect a third of the members. However, situation when some of the authorized bodies fail to appoint judges timely remains unregulated. Definitely, it jeopardizes the exercise of their constitutional powers. The history if Ukraine already knows such case, when in October 2005, in connection with the expiration of the nine-year term of office of sixteen judges, the President of Ukraine and the Congress of Judges of Ukraine appointed its quota of judges (in sixes). However, the Verkhovna Rada of Ukraine, which was to appoint four judges, was unable to make these appointments, because most of the people’s deputies avoided voting procedure for political reasons. In such a way, the parliamentary faction, opposing the President of Ukraine, sought to prevent the possibility of viewing amendments as of December 8, 2004 introduced to the Main Law of Ukraine by the newly formed Constitutional Court of Ukraine by request of the President of Ukraine [4; 19]. The activity of the Constitutional Court during 2005 and early 2006 was actually locked and such a precedent is absolutely unacceptable, because the lack of control power may lead to a situation, in which legislative and executive powers would become immune to any control. Therefore, to ensure the real independence of the Constitutional Court of Ukraine in the system of checks and balances, we consider it appropriate to draw attention to a proposal of R. Martyniuk who offers to secure regulations (preferably at the level of the Main Law of Ukraine and in the Law of Ukraine «On the Constitutional Court of Ukraine») concerning the fact that «the judges of the Constitutional Court of Ukraine shall continue to perform their duties until the inauguration of newly elected judges» [3; 124].
Judge of the Constitutional Court of Ukraine assumes the office on the day of taking the oath of a judge of the Constitutional Court of Ukraine during the meeting of the Verkhovna Rada of Ukraine. This procedural point is important, because in 2006 there was a situation, when the people’s deputies blocked taking the oath by newly appointed judges of the Constitutional Court of Ukraine. Scientists propose to resolve this issue by deleting the rule of necessity to take oath when assuming a position from the Law of Ukraine «On the Constitutional Court» or provide the procedure of taking office, when it is impossible to take the oath in the meeting of the Verkhovna Rada by taking the oath in some other place or without taking it [6; 421]. Such reasoning is not entirely justified, because, firstly, the fact of taking the oath by a newly appointed judge allows to bring him or her to responsibility for its violation, and secondly – logically, if the oath is taken exactly in the meeting of the legislative authority, which, according to John Stuart Mill, functions as eyes, ears and voice of the people in a representative democracy. If some contradictions arise concerning individual candidates, then it is necessary to provide mechanism of coordination of contradictions.
It is also important to pay attention to the possibility of the Verkhovna Rada of Ukraine and the President of Ukraine not only to elect but to dismiss judges. If to consider it possible that the dismissal of the Constitutional Court of Ukraine is not carried out on the grounds under Art. 126 of the Constitution of Ukraine, then it clearly denies equal status, independence and balance of all branches of government, violates the system of checks and balances and unduly expands the prerogatives of the Parliament and the President of Ukraine in the sphere of constitutional justice. In fact, it denies the principle of the independence of justice, because the possibility of removing judges can be applied in the event of dissatisfaction with the decision for political reasons. To avoid this situation, we consider it appropriate to provide a clear list of reasons for early termination of a judge of the Constitutional Court of Ukraine or transfer powers to the early termination of office of judges to the competence of the court.
It is also important to note that the possibility of objective attitude to the President of Ukraine not only on the part of the Constitutional Court of Ukraine, but on the part of the Supreme Court of Ukraine in the process of impeachment is increasingly questioned. This is primarily due to the influence of the President of Ukraine on the formation of state bodies. As mentioned, the President of Ukraine appoints 6 judges of the Constitutional Court of Ukraine and also has the ability to dismiss them. Thus, in accordance with the Law of Ukraine «On the Constitutional Court», to decide in a proceeding of a respective constitutional petition of the Verkhovna Rada of Ukraine and provide the necessary conclusions, it is necessary to present votes of not less than 10 judges of the Constitutional Court of Ukraine. As for the Supreme Court of Ukraine, the situation seems simpler, because usually the judges of the Supreme Court of Ukraine are those who have 15 years of experience and have already been elected by the Verkhovna Rada of Ukraine in perpetuity. However, such a position may be assumed by the judge of the Constitutional Court of Ukraine, and this also allows for the President to form the needed team of committed people who will take the decision in favor of the Head of the state for the time necessary. In this case, it is unwise to rely on the impartiality of judges. Indeed, in such circumstances, they cannot carry out their activities independently, and it certainly does not help Verkhovna Rada of Ukraine resolve political crisis that may arise in the state under certain conditions.
It is necessary to pay special attention to question the quality of draft laws adopted recently. The people’s deputies have repeatedly had the opportunity to appeal to the Constitutional Court of Ukraine on the recognition of the unconstitutionality of legal acts of the Verkhovna Rada of Ukraine. In particular, the constitutional ruling on termination of proceedings concerning the unconstitutionality of Acts of Parliament adopted in the premises of the «Ukrainian House» on January 21 and February 1, 2000 (resolution No.2-уп as of June 27, 2000), the court found these acts being beyond consideration, as this question «has a regulational, procedural, political and moral meaning, and decisions made in the «Ukrainian House» are, in fact, a part of the political process» . Some researchers in the field of constitutional law believe that this statement of the Court is at least controversial, and for good reason. They point out that the Constitutional Court of Ukraine as the sole body of constitutional jurisdiction, which provides protection of the Constitution of Ukraine and provides an interpretation of its rules, has exclusive competence to determine the legitimacy (origin and activity) of any constitutionally established authority. And the Verkhovna Rada of Ukraine is entitled by delegated legitimacy based on the fundamental act of the people – the Constitution, so that in certain circumstances it is able to lose it. And just when it acts completely unconstitutional, violating p. 5, Art. 83 of the Constitution of Ukraine, which provides that the procedure of work of the Verkhovna Rada of Ukraine is established by the Constitution and Regulations of the Verkhovna Rada of Ukraine. Therefore, the Constitutional Court of Ukraine, considering its vocation, is entitled with the power not only to establish the legitimacy of the acts of the highest authority in the state, but also its activity . On the decision of the Constitutional Court of Ukraine in case of the procedure of voting and reconsideration of laws by the Verkhovna Rada of Ukraine as of July 7, 1998 No. 11-рп/98, the Court determines that «a people’s deputy of Ukraine has no right to vote for other people’s deputies of Ukraine during the meeting of the Verkhovna Rada of Ukraine» [5; 257-263]. However, this conclusion is no longer applied when considering the submissions of the unconstitutionality of acts of the Verkhovna Rada of Ukraine for this reason. The main reason for rejection of the Constitutional Court to institute proceedings in such cases is the lack of evidence of the presence of the people’s deputies in the courtroom during voting
1. Barabash Yu. H. Democracy in System of Values of the Constitutional Order (based on Practice of the Constitutional Court of Ukraine) / Yu. H. Barabash // Bulletin of the Constitutional Court of Ukraine. – 2009. – No.5. – P. 91-92.
2. Kovalchuk V. B. The Role and Place of the Constitutional Court of Ukraine in the System of Government of Ukraine: [Digital resource]. / V. B. Kovalchuk. – Retrieved from : http://naub.org.ua/?p=740
3. Martyniuk R. S. Constitutional Jurisdiction. Problems of the Constitutional Court in Ukraine / R. S. Martyniuk // Political Reform as Viewed by Experts: meaning of Public Consultations. – Kyiv, 2007. – 180 p.
4. Rudyk P. A. Constitutional Reform in Ukraine: Problems and Perspectives / P. A. Rudyk. – Kyiv: Atika, 2006. – 256 p.
5. Ruling of the Constitutional Court of Ukraine as of 27.06.2000 No. 2-уп/2000 : [Digital resource]. – Retrieved from: http://zakon4.rada.gov.ua/laws/show/v002u710-00.
6. Sovgyria O. V. Constitutional Law of Ukraine. Complete course: textbook/ O. V. Sovgyria, N. H. Shuklina. – 2nd ed., revised and added. – К. : Yurinkom Inter, 2012. – 544 p.
7. The Constitutional Court of Ukraine: Ruling. Conclusions. 1997-2001 / Execut. edit. Cand. Sc. (Law) P. B. Yevgrafov. – К. : Yurinkom Inter, 2001. – P. 257-263.