Doc. 8674

23 March 2000

Reform of the institutions in Ukraine

Communication

President of the Parliamentary Assembly

Exchange of letters between the President of Ukraine and the President of the Parliamentary Assembly

1.        Letter from the President of the Parliamentary Assembly to Mr Leonid Kuchma, the President of Ukraine, dated 31 January 2000

Dear Mr President,

As you probably know, during the last week part-session, the Assembly and its relevant bodies discussed the recent adoption of the law on political parties and the ratification of the European Charter for Regional or Minority Languages by the Verkhovna Rada, as well as the ruling of the Constitutional Court of Ukraine effectively abolishing the application of capital punishment.

It was agreed that these developments constitute substantial progress in compliance with Ukraine’s obligations and commitments as a member of the Council of Europe, about which we spoke when I met you in Kyiv at half-time of the fatal football match (!) and that, consequently, it was not necessary to start the procedure to suspend certain rights of the Ukrainian delegation, in accordance with Resolution 1194 (1999).

As positive as these developments are, I feel obliged to express my serious concern with regard to the ongoing dispute on the proposal for a national referendum on the reform of institutions of Ukraine, announced for 16 April 2000.

The Assembly recognises the sovereign right of any of its members to freely amend its constitution but insists that any such change should be carried out in full accordance with the existing constitutional provisions.

After being informed by the members of the Ukrainian delegation of the initiative to organise the referendum and their concerns in this respect, I have decided to ask the Venice Commission to prepare an opinion on the substance of the proposed reforms and the modalities for their adoption. I expect the opinion to be ready by the beginning of April.

Moreover, the Rapporteurs of the Monitoring Committee, Mrs Severinsen and Mrs Wohlwend, will visit Ukraine from 16 to 19 February and I should be grateful if you would agree to meet with them on this occasion.

Finally, the Assembly intends to debate the developments in your country at its forthcoming part-session from 3 to 7 April, on the basis of the opinion of the Venice Commission and the findings of its rapporteurs.

Considering the controversial character of the initiative, it would seem advisable and even necessary to organise a consultation between all major political forces in Ukraine and with a view to reaching as broad agreement as possible, before any further steps with regard to the organisation of the referendum are taken. I am certain that the opinion of the Venice Commission, the findings of the rapporteurs and the results of the Assembly’s debate can be helpful in this context.

I am also ready to offer any personal assistance and advice that would be deemed helpful in finding a consensual solution to this matter.

Signed:

Lord Russell-Johnston

2.        Letter from the President of Ukraine to the President of the Parliamentary Assembly, dated 14 March 2000

Dear Lord Russell-Johnston,

      I would like to thank you for your letter of 31 January 2000 in which you informed me about the positive attitude expressed at the last session of the Council of Europe Parliamentary Assembly as to the implementation of Ukraine’s commitments taken upon accession to the Organisation.

      As you are probably aware, during my meeting with the rapporteurs of the Parliamentary Assembly on 16 February earlier this year, they were informed about measures taken by Ukraine aimed at fulfilment of these obligations. We also discussed a number of other issues.

      In our opinion, significant progress achieved by Ukraine, in complying with its obligations before the Council of Europe, gives every reason to believe that the monitoring procedure currently carried out by the Parliamentary Assembly could further continue not in extraordinary but in regular manner, as applied by the Parliamentary Assembly to other countries under similar procedure.

      As regards the issue of the all-Ukrainian referendum to be held on 16 April this year, raised in your letter, I would like to share with you the following observations.

      I shall be honest with you – we are worried about the reaction of some bodies within the Council of Europe, as well as the reaction of some countries in this respect.

      We have been informed that concern and even mistrust is being expressed as to the reasons, as well as legal and political foundations of this issue of utmost importance for Ukraine.

      Our special concern has been caused by the draft recommendation of the Council of Europe Parliamentary Assembly, approved by the Monitoring Committee on 8 March this year.

      I am convinced that the content of this document is based upon incorrect evaluation of the referendum’s legal foundations, as well as a failure to perceive its real reasons and possible consequences. It is more surprising given that the rapporteurs of the Parliamentary Assembly had every opportunity to obtain objective and unbiased information on the appropriate issues during their recent visit to Kyiv.

      In this context I deem it necessary to draw your attention to the following.

      First. The initiative to hold the all-Ukrainian referendum and to bring up the issues related to the work of the Verkhovna Rada (the Parliament of Ukraine) belongs to the people of Ukraine.

      This initiative became a reaction of wide segments of the Ukrainian society to the extremely ineffective work of the parliament which, to a great extent, resulted in a significant drop in living standards of our population and stagnation in the economic and social sphere.

      Sharing the concern of my people and acting as a guarantor of the Constitution of Ukraine, ensuring human rights and freedoms, I had no right to decline this initiative put forward and supported by almost four million Ukrainian citizens (about 12% of the electorate).

      According to the constitution, the Ukrainian people are the only bearers of state sovereignty and the only source of power in our state. Therefore, the people possess the full right to express their will through referendum.

Taking my decision on the referendum, I proceeded from the assumption that the Presidential Decree on the Announcement of the All-Ukrainian Referendum on the People’s Initiative shall be in full compliance with the constitution and current legislation of Ukraine.

      Second. We are fully aware about the cautious attitude of many European states and politicians as regards referendums. However, in Ukraine, as a newly democratic state, which has just freed itself from hard consequences of its totalitarian past and is just approaching European democratic and legal standards, a referendum can and will provide a way to resolve some important issues of public and state life.

      Another way, as we have already experienced, is a slow evolution towards nowhere, stagnation and an increasing threat of a return to the past.

      Third. Referendum will not ruin the existing balance between the branches of power, but, on the contrary, will serve to restore it.

      Such lack of balance was proved by the two-year long inefficiency of the Verkhovna Rada of Ukraine and its sole preoccupation to settle inner conflicts between parties and factions, instead of adopting important laws vital for future social progress. For instance, year after year the state budget was adopted with considerable delay, not mentioning the delay in adoption of the Civil, Criminal, Tax and other Codes of Ukraine.

      Unfortunately the constitution in force, approved as a wholesome compromise between political forces within the parliament after its unprecedented 28-hour long plenary meeting, has not been able to provide a proper balance.

      As you may know, the draft constitution which had been under preparation by specialists for many years, was at that time largely revised, particularly regarding the provisions on the two-chamber parliament, the terms of its formation and dissolution.

      Therefore, the referendum is not aimed at limiting parliamentarism as such, but, on the contrary, at promoting the establishment of more clearly defined and generally accepted principles of parliamentary democracy.

      Fourth. I have a feeling that not enough has been done on the part of executive authorities to clarify the purposes and consequences of the all-Ukrainian referendum both in Ukraine and abroad.

      In this context, I would like to share my personal view regarding the implementation of the referendum results:

1.       First of all, according to the current legislation, the four provisions defined as direct changes and amendments to the Constitution of Ukraine (regarding the grounds for the dissolution of parliament, limiting the scope of deputies’ immunities, reducing the number of parliamentarians in the Verkhovna Rada) will be implemented by way of official publication of the text of the constitution, including the changes approved by the referendum.

      At the same time, as repeatedly stated, the President does not have any intention to dissolve the Verkhovna Rada following the referendum. It should be emphasised that the first issue brought up for the referendum is defined in such a way that it gives the President of Ukraine additional powers for the dissolution of parliament. However, it does not oblige him to do so.

      In this connection, I would like to confirm that the Verkhovna Rada shall continue its work till its powers expire in 2002.

2.       Regarding the immunity of parliamentarians, I proceed from the idea that in the case of an affirmative reply to the third question of the referendum, the status of people’s deputies will be brought into conformity with the existing international standards. Therefore, we are not talking about a wholesome lifting of immunities, but rather about the reducing of their current unjustifiably wide scope.

      Unfortunately, today, parliamentary immunities in Ukraine look more like diplomatic ones. Such “extraterritoriality”, along with the insufficiently established parliamentary culture and traditions, and given some widely known examples, including those related to criminal offences, cost our people too much.

3.       Reduction of the number of deputies of the Verkhovna Rada.

      Should the people support this provision, a relevant constitutional norm reducing the number of parliamentarians will have no retroactive effect. Therefore, implementation of this provision with appropriate amendments to the current electoral legislation will be possible only in the future, when new people’s deputies are elected to the Verkhovna Rada.

4.       As mentioned above, the idea of creating a two-chamber parliament in Ukraine is not entirely new. The existence of the upper chamber would enhance the accountability of the parliament for the decisions it takes, and would also provide for more thorough consideration of regional (and not only party-related) differences and interests of a 50-million nation.

      Therefore, if our people support at the referendum the two-chamber parliament, the President, the government and the Verkhovna Rada of Ukraine shall be committed to start work on its implementation. However, the implementation of this provision will take considerable time, since it will require substantial changes to the legislation in force. The constitution itself would require changes and amendments to more than 30 articles.

5.       According to Article 5 of the constitution, the Ukrainian people are the only bearers of state sovereignty and the only source of power in our state. That is why I fully support the idea that in future the constitution should be approved by a nation-wide referendum, as outlined in the sixth question of the referendum.

      It goes without saying that future implementation of this provision will be possible only when a new draft constitution has been elaborated, certainly with the participation of the parliament, the government, other state institutions, NGOs, scientists and representatives of all segments of society.

      You may probably know that on 29 February 2000 the Constitutional Court of Ukraine began consideration of the appeals submitted by two groups of people’s deputies (being, without doubt, interested parties, while the author of one of the appeals is the Vice-President of the Venice Commission) about the compliance to the constitution of the Decree on the Announcement of the All-Ukrainian Referendum on the People’s Initiative. According to the current legislation, the court’s decision will be final and will not be subject to any appeal.

      I would like to assure you that, acting as a guarantor of the Constitution of Ukraine, I shall fully comply with the court’s decision.

      At the same time, I have been informed that the Venice Commission also addresses the issue in question.

      Being confident that the Commission will express a balanced and impartial opinion regarding the Ukrainian people’s initiative I, however, express concern that this opinion could possibly not coincide with the decision of the Constitutional Court of Ukraine – the only body of constitutional jurisdiction in Ukraine.

      If both conclusions come into collision, not only the competence of an important state body, but also the relevant internal constitutional procedures, and what is more important, the basis of the Ukrainian constitutional structure as a whole will be put into question.

      I hope that the Council of Europe, in which Ukraine is a fully-fledged member, will be able to find the right solution and settle this difficult ethical, legal and political problem.

      Finally, I would like to inform you that I have sent a similar letter to Mr Schwimmer, Secretary General of the Council of Europe.

      I avail myself of this opportunity to renew to you, Dear Mr President, the assurances of my highest consideration.

Signed

Leonid Kuchma