The power of “individual opinion”

The most recent Savik Shuster talk show on 3s.tv offered us a principled and profound discussion. Of course, the audience was much smaller than it used to be, when the talk show appeared on national broadcasters, but the contents undoubtedly deserve our attention. The topic was the proposed amendments to the Constitution. Present in the studio were top-notch experts, including the authors of the Fundamental Law of Ukraine: Viktor Shyshkin, Serhii Holovaty, and Maryna Stavniichuk. The only minus point was that the expert discussion began after midnight, because politicians with their populist puppet show claimed the best time.

The duel of two renowned constitutional law experts, Shyshkin and Holovaty, was showy and powerful. Here is a little summary of the latest news. The former was dismissed by the order of Petro Poroshenko only 15 days short of the end of his term as the Constitutional Court judge (2006-15). In 2015 he was also member of the selection commission screening candidates for administrative positions in the Specialized Anti-Corruption Prosecutor’s Office (under the parliamentary quota). The latter is a member of the Constitution Commission under the President of Ukraine, and quite recently, on February 2, 2016, was appointed deputy member of the European Commission for Democracy through Law by the President’s decree.

Shyshkin is an outspoken opponent of any amendments to the Fundamental Law as long as Ukraine is in the war conditions. Holovaty believes that changes are necessary, in particular, regarding justice. Moreover, he is convinced that they would become the first step to the transformation of the legal system. The tension in the duel was palpable, it could be felt both between the disputants and in the audience, which reacted to what was being said.

In one of the discussions Holovaty claimed that Shyshkin’s statement concerning “the conditions of the state of war are a private scholarly opinion which does not conform to the provisions of the Constitution.” “Then I will ask this question: why is my private opinion in my individual opinion of 2010 underlay the decree of the Verkhovna Rada which recognized the 2010 amendments as a constitutional coup? It was also a private opinion, but for some reason it became a public one.”

After the talk show was over, the opinions about the winner of the scholarly debate split. The discussion about which of the parties was right was further carried out in the Internet. We asked Holovaty and Shyshkin to share their impressions of the program and try to win the public over with their key theses.

“STATE MUST SURVIVE UNDER ANY CONDITIONS”

Serhii HOLOVATY, Ph.D. in Law, member of Constitutional Commission, corresponding member of the National Academy of Juridical Science:

“This was not a discussion, and I had no opportunity to refute the legally ungrounded utterances made by Mr. Shyshkin. At the very start he said that this was no reform, and recommended that I look up the dictionary, which I did. Even Wikipedia defines reform as a complex of measures introducing such new social relations, which do not alter the fundamentals, but change the working conditions for entire society or for some groups of members of society.

“New conditions are being introduced into justice, since the old ones have already exhausted themselves. For two decades we have had a system which was introduced as post-Soviet, adopted by communists in conformity with their contemporary needs, led by the oligarchy dating back Kuchma’s time. Can we keep on living with this system 20 years later?

“We do not have European-style legal profession, because it must be a self-governing professional organization. We have an institution the name of which has a Tsardom ring to it: the prosecutor’s office. No other European country has a prosecutor’s office, it is called ‘public prosecution,’ prosecution by state in a criminal process. We have no professional lawyers, professional prosecutors, or professional judges because we have no professional schools where one could obtain a diploma in law.

“All that exists as of today is a negative social phenomenon, which must be uprooted according to the notion of the reform. We must implement new terms of activity through legislation. In such a way we would lay constitutional foundations which would put us on the course towards a new quality of institutions of the legal system in the future via passing new legislation: on judicature, on the status of the judge, on legal profession, and on prosecution.

“Unfortunately, even the 10 constitutional judges, who stated 10 individual opinions, do not understand these formulas. What should we expect then from ordinary lawyers, who lack a proper fundamental training in constitutional law or the legal system founded on the rule of law? I have been studying the rule of law for 20 years, and not from the works by Mr. Shyshkin, the judges of the Constitutional Court, or the Ukrainian Academy of Sciences, but from the Western schools: Yale, Cambridge, the Frankfurt Law School, as well as from the documents of the Council of Europe, the EU, and the Venice Commission.

“As for Mr. Shyshkin’s statement about the ‘conditions of the state of war,’ it is his own private scholarly opinion which does not conform to the provisions of the Constitution, which need to be interpreted systemically. He snatches the phrase out of the context and interprets the word ‘conditions’ as factological matter, rather than juridical: hostilities and casualties mean that the conditions of war are present. But a lawyer can only proceed from juridical matter, which is that the conditions of the state of war result not from factual matter, but from juridical facts. It is the introduction of the martial law that leads to the conditions of the state of war, through a decree issued by the president. But juridically, martial law, or the conditions of war, must be preceded by a ratification of the Verkhovna Rada. Martial law, imposed by two political institutes, creates the juridical regime of martial law, identical to the conditions of the state of war juridically, and not factologically.

“Mr. Shyshkin cites the laws and says that the president should have done all that. But he didn’t, therefore, juridically the conditions of martial law were never created. Despite the presence of war (which juridically is qualified as an anti-terroristic operation, not martial law), how can one say that we have no right to change the Constitution?

“As far as practical issues are concerned. Should Russia wage this war another 5 or 10 years and exhaust us, will we stick to the old system and wait till Putin leaves us alone? With an urgent need for reform, will we procrastinate till we perish? Forty-two million Ukrainians live on the territory where there is no state of war, de-jure or de-facto. They need new institutions and reforms to ensure the progress of society. Even the power triangle, president – government – parliament, is imperfect, due to the existence of two centers of decision-making. This must be changed, or state will collapse. So should we keep waiting and postpone solving these problems until Putin withdraws from Ukraine? He never will, so what shall we do with the territory, which falls under the jurisdiction of state? This conforms to Moscow’s strategic goal to destroy Ukraine involving all means possible, aggression or internal split. State must survive in some way under any conditions, by reforming itself, improving, and opening new opportunities to optimize what it has.”

“REFORMS ARE POSSIBLE WITHOUT CHANGING THE CONSTITUTION”

Viktor SHYSHKIN, judge of the Constitutional Court of Ukraine (2006-15):

“A reform envisages the creation of new authorities with new, very different functions, a cardinal change of something. Reforms involve not only positive innovations, they are systemic transformations.

“The given amendments to the constitution in the sphere of justice are not reforms, they are the usurping of the right to defense by the Bar alone. Even before that we had an article which stipulated that the Bar is meant to render juridical aid to those who need it. But now they have written that only the Bar has the right to function as defense. Is this the reform? Consider, for example, the recent Podolsky-Gongadze case, where I represented the complainant, Oleksii Podolsky. If such constitutional amendments had been implemented, Podolsky would not be allowed to appoint me his representative, since I am not a lawyer or a member of the Bar.

“Moreover, is the High Council of Judicature instead of the High Council of Justice, actually, the reform? Even the introduction of constitutional grievance in the new draft of constitutional amendments is no reform, because citizens had the right to go to the Constitutional Court, but through the prism of interpreting the law.

“The same can be said about amending the Constitution in what concerns decentralization. Article 118 of the Constitution of Ukraine reads that the executive power in oblasts and districts is exercised by heads of local state administrations. Mr. Poroshenko’s amendments say the same, but the ‘heads of local state administrations’ are replaced with ‘prefects.’ So where is the reform, if in both cases we have the head of the executive?

“The true reform was implemented in 1996, when the Constitution of Ukraine was adopted. The Constitutional Court, the High Council of Justice, the European cassation, and the appeal all appeared back then.

“The thesis about the presence of the ‘conditions of the state of war’ was expounded not only in my individual opinion, but also in those of the Constitutional Court judges Melnyk and Slidenko. There is a term ‘imposition of martial law,’ i.e. a single act by the president with subsequent endorsement by the parliament. And there is a term ‘conditions of the state of war.’ Imposition of martial law and conditions of the state of war are two different legal formulations. The conditions of the state of war include not only the president’s measures. Their presence can be revealed by an aggregate of regulations and legislative acts. In my individual opinion I cite more than 50 such acts: by the president, the Verkhovna Rada, and the Cabinet of Ministers. This aggregate suggests that the use of a whole complex of terms, such as ‘war,’ ‘aggression,’ ‘military invasion,’ or ‘hostilities,’ describes the conditions of the state of war. Take the defense minister’s Order No.49, following one of the government’s decrees on rewards for destroyed enemy’s tanks, choppers, Grads, or commandos, for instance. Is this not evidence proving the presence of the conditions of the state of war?

“The Constitutional Court is obliged to speak about ‘the conditions of the state of war.’ It is not only its right, but the duty to safeguard the Constitution. The duty that it failed to fulfill.

“So under such conditions, amending the Constitution is possible only in an extreme case: when society cannot go on living on the basis of the former legislation. However, the proposed amendments contain no reform. On the other hand, reforms are possible without amending the Constitution. For instance, the law on local self-government could reduce the powers of the head of the state administration and expand the powers of the local authorities.”

“However, the given changes are being pushed through to cover up the Minsk deal, in the first place. All the mentioned above is not meant for Ukraine’s domestic use; it is window-dressing for the international community. These changes help whitewash Putin. And he gets a trump card to justify himself in the international arena. After that, we will not be able to call Russia an aggressor in front of the UN Security Council, because we never called it an aggressor, to start with. We never imposed martial law, but passed such amendments to the Constitution, which must never be passed in the conditions of war.”