Maidan

Over the last weeks, as a result of the conflict between the President and Prime Minister, the Constitutional Court of Ukraine has become the focus of heightened attention.

The proceedings in full, which began on 17 April and will continue at least until 26 April, are reported in Ukrainian by Maidan volunteers. The first day hotline in Ukrainian is available at: http://maidanua.org/static/news/2007/1176791942.html

The following are fragments from the first day which can enable the reader to gain some idea of the level of the debate.

Judge Suzanna Stanik is not voluntarily withdrawing from the proceedings as in accordance with the Rules of Procedure of the Constitutional Court which allows for this where there can be any doubt about the impartiality of the judge. During the first day court proceedings she had offered to share half of any property which the acting head of the SBU [Security Service of Ukraine] finds among her relatives [The previous day, the said official reported that preliminary investigations had found that the Judge’s mother had accumulated 12 million dollars worth of property and assets].

The dismissed Parliament - Verkhovna Rada (i.e. the ruling Coalition) is represented by Yury Miroshnychenko, National Deputy from the Party of the Regions, himself a lawyer by training

National Deputy Miroshnychenko stated during the debate: “We needed 300 votes to complete the political reform [the constitutional amendments from December 2004, which changed the balance between President and Parliament]. What’s the legal difference, where we got them from?”
[300 votes are needed to overturn a Presidential veto and to make changes to the Constitution].

Judge Dzhun: “How should the President act when Deputies violate the spirit of the Constitution, and do it so flagrantly that such acts could not even be covered in the Constitution itself (For example, when they move from one faction to another for huge amounts of money, betraying the will of their voters). So should the President be guided by the spirit or the letter of the Constitution?
Deputy Miroshnychenko: "He should be guided by the letter, the formal side. If it isn’t set down in the Constitution that it’s prohibited to move from faction to faction for money, that means that although such actions contravene the spirit of the Constitution, you can’t, for example, dissolve parliament because of them.”

Judge Lypak: “Do you consider Yushchenko’s Decree to be in force?”
Deputy Miroshnychenko: “Well, on the one hand it’s current, otherwise what are we considering here? However, on the other, the Verkhovna Rada through its resolution declared it invalid (- after the Verkhovna Rada had already been dissolved). Therefore it’s invalid at the same time.”

Judge Stetsyuk: “What is the name of the coalition you belong to, when did it change its name and on what grounds?”
Deputy Miroshnychenko: “I don’t remember”.

Judge Stetsyuk: “What is a distortion of the will of the voters?”
Deputy Miroshnychenko: “THERE WAS NOTHING OF THE SORT IN THE VERKHOVNA RADA! However in general, that’s when a deputy does not carry out the election programme. In fact, distortion of the will of the voters is not a legal category since there is no definition of this term. And therefore, even if there is such a distortion, then the voter at the next elections can vote for somebody else”.

Judge Shishkin: “Who is the Guarantor of the Constitution and how should he provide this guarantee?”
Deputy Miroshnychenko: “He [i.e. the President] should guarantee it only in the form of submissions to the Constitutional Court”.

Judge Shishkin: “And what then is to be done in the case of conflict between those in power and their source – the people?”
Deputy Miroshnychenko: “Who are the people? Who represents them? Those in power! I won’t answer these theoretical questions!”.

Judge Matsuzhak: “Nonetheless, if you deny the right of the President to defend the people in cases when, for example, the Verkhovna Rada usurps power, then who can defend them?”
Deputy Miroshnychenko: (with a gesture, pointing to the Judges)”What do you mean? You can defend them!”
Judge Matsuzhak: “And what about when the Constitutional Court couldn’t function for a year and when rights were violated”.
Deputy Miroshnychenko: “Well but now you’re working”.

Judge Dombrovsky: “Where the President is to turn to appeal against the actions of the Verkhovna Rada, we have already understood [i.e. to the CC]. But where is he to turn, for example, over its lack of action? To the Pope, to the Patriarch, to the UN or somewhere else?”
Deputy Miroshnychenko: “Well, let him hold consultations, agree his decisions with the Verkhovna Rada, let him use political mechanisms”.

Judge Dzhun: “Let’s imagine the hypothetical situation which could not of course arise in our country with such a good parliament – the Deputies block the work of the Constitutional Court, by refusing to swear in some of the Judges [laughter in the hall]. The work of the Court is blocked. Where can the President turn to over the actions of the Verkhovna Rada, since as you have repeated already 10 times, he needs first to approach the Constitutional Court?”
Deputy Miroshnychenko: : “Thank you for your high assessment of our parliamentarianism. However such a situation could not go on forever and the President would just have to wait, and when the Court began functioning again, then he could approach it.” [Prolonged laughter in the hall].

[The work of the Constitutional Court was in fact effectively blocked for more than a year in 2005-2006 with the Verkhovna Rada failing to swear in new judges. Since this blockade was lifted back in August 2006, the Constitutional Court has still not issued a single ruling, despite having received many constitutional submissions]

NB. All [comments] are translators’ notes.