THEORETICAL AND METHODOLOGICAL ISSUES OF AMENDMENT OF THE CONSTITUTION OF UKRAINE IN THE CONTEXT OF IMPROVING THE RULES OF PROCEDURE OF THE VERKHOVNA RADA OF UKRAINE

European Science Law THEORETICAL AND METHODOLOGICAL ISSUES OF AMENDMENT OF THE CONSTITUTION OF UKRAINE IN THE CONTEXT OF IMPROVING THE RULES OF PROCEDURE OF THE VERKHOVNA RADA OF UKRAINE Iryna KOSTYTSKA Doctor of Juridical Sciences, Senior Researcher, Head of the Department of the Research Service of the Verkhovna Rada of Ukraine, Kyiv, Ukraine ORCID ID: https://orcid.org/0000-0003-2336-1426 [email protected] Anastasiia SUKHODOLSKA Associate Professor, Candidate of Juridical Sciences, Associate Professor at the National Aviation University, Kyiv, Ukraine ORCID ID: https://orcid.org/0000-0002-5794-9167 [email protected] Abstract. The article is devoted to the analysis of certain procedural problems of amending the Constitution of Ukraine in the context of improving the Rules of Procedure of the Verkhovna Rada of Ukraine. These Rules are considered a key source for regulating the parliamentary procedure of introducing amendments to the Basic Law of the state, specifying the constitutional provisions in this sphere. The key role of the Verkhovna Rada of Ukraine as the sole body of legislative power in implementing the special procedural rules for amending the Constitution of Ukraine has been determined. In this way, the Rules ensure not only the normative supremacy of the Constitution of Ukraine and the laws on amending it but also provide enhanced control by the Parliament, the President of Ukraine, and the Constitutional Court of Ukraine over the constitutionality of amendments to the Basic Law. The special procedure for amending the Constitution of Ukraine, regulated by the Rules of Procedure of the Verkhovna Rada of Ukraine, serves as an organic continuation and a form of legislative elaboration of the constitutional procedure for amending the Constitution. At the same time, the Rules themselves do not fully comply with constitutional requirements and, in a number of cases, contradict the provisions of the Basic Law of the state. These cases (in particular, those contained in Parts 4 and 9 of Article 143, Part 3 of Article 144, Part 11 of Article 147, Parts 4-6 of Article 148, and Parts 9, 10, and 12 of Article 149 of the Rules of Procedure of the Verkhovna Rada of Ukraine) are analyzed in terms of their constitutionality. The article argues that a promising direction for modernizing European Science Law the parliamentary Rules is to ensure the constitutionality of the provisions of this legislative act regulating the procedure for amending the Constitution of Ukraine in the unity of all components of this process. Keywords: Constitution of Ukraine, legislative power, Rules of Procedure of the Verkhovna Rada of Ukraine, amendment of the Constitution of Ukraine, parliamentary procedures, constitutionality of the Rules’ provisions, Constitutional Court of Ukraine, modernization of the Rules. Introduction The fundamental nature of the Constitution of any state is manifested not only in its content, set of norms and range of regulated relations but also in the ways in which it can be amended, since no constitution can be eternal and immutable which must be consistent with the principle of constitutional stability. At the same time during the evolution of constitutionalism, an unwritten rule has gradually developed and become established in constitutional practice according to which no part of the constitution is more important than the rules governing its amendment (amendments) and its protection from unconstitutional changes. Models of constitutional change and various strategies for incorporating these changes into the constitutional text place the problem of constitutional amendment and ensuring the legitimacy of its incorporation into the constitution at the center of the discussion. At the same time, while until recently the very idea that a constitutional amendment could be unconstitutional seemed a kind of legal curiosity [3 p. 49] in Ukraine it took on practical significance after the infamous Decision of the Constitutional Court of Ukraine in the case on compliance with the procedure for amending the Constitution of Ukraine dated 30 September 2010 No. 20-rp/2010 which made possible the so-called “constitutional reversal” [4] in the organization of state power in Ukraine which paved the way for President V. Yanukovych’s attempt to usurp power [6, p. 83]. The purpose of the study is to provide a scientific and legal analysis of certain procedural issues related to amendment of the Constitution of Ukraine in the context of improving the Rules of Procedure of the Verkhovna Rada of Ukraine (hereinafter referred to as the Rules of Procedure). State of research on the issue. The procedural aspects of amendment of the Constitution of Ukraine have been studied by such Ukrainian scholars as O. Boryslavska, A. Georgitsa, V. Dzhun, V. Zhuravskyi, M. Kozubra, O. Kopylenko, M. Orzikh, N. Parkhomenko, V. Pogorilko, V. Rechitskyi, O. Skrypniuk, P. Stetsiuk, M. Tepliuk, Yu. Todyka, V. Fedorenko, V. Shapoval, N. Shaptala, S. Shevchuk, Yu. Shemshuchenko, O. Shcherbaniuk and others. Among foreign researchers of procedures for amendment of constitutions, the works of R. Albert, A.R. Amar, D. Berenger, K. Bernal, M. Bokenfjord, J.R. Vile, V. Dellinger, B.Z. Dunning, D. Dudek, L. Karvonen, X. Kontiadis, J. Melton, F. Michelman, W.K. Proys, A. Roberts, K. Friedberg, R. Holden, S. Holmes, A. Shayo, E. Shneier, and others. However, such analysis traditionally focuses on the constitutional and procedural aspects of amending the state constitution while the role of internal parliamentary regulation remains on the periphery of research interests which significantly limits the scope of scientific conclusions in this field of scientific European Science Law research. Presentation of the main material. Since the first principle of constitutionalism is the affirmation of the rule of law, the fair organization and functioning of power [21], i.e., the minimization of the arbitrary power of officials and the direction of their activities toward the common good [7, p. 506], the procedural checks and balances enshrined in the world’s constitutions exist to limit arbitrariness in all forms of public and private power. In particular, in constitutional democracies formal rules for amending basic laws restrict political actors by establishing special procedures for changing the constitutional text. It is these rules that distinguish constitutional law from ordinary law, since changing constitutions usually requires much more complex conditions than adopting or amending ordinary laws. Therefore, the rules for making constitutional amendments oblige future political actors to follow certain procedures and express fundamental constitutional values. However, perhaps their most important function is that they act as a self-correcting mechanism: amendment rules allow political institutions to update the constitutional text in response to new circumstances, challenges or identified shortcomings in its structure. In this context, it is customary to speak of the fundamental nature of the rules of constitutional change (amendments): if constitutional norms determine the “rules of the game in society”, then the rules for making amendments determine the “rules for changing the rules”. As noted by American constitutional scholar A.R. Amar, it is these rules that “carry the most weight, since they determine the conditions under which all other constitutional norms can be changed” [9, pp. 457, 461]. Another American legal scholar, F. Michelman adds: “perhaps the very idea of a constitution presupposes the absolute protection of the rules of amendment which, in turn, ensure the relative protection of all other norms” [10, pp. 1303-1304]. In the Western European constitutional tradition, which has its origins in the works of J. Locke, the rules for making constitutional amendments are of particular importance: they legitimize both “higher” and ordinary laws, based on the consent of the people – direct or indirect [7, p. 21]. Therefore, the power to make amendments is considered an “attribute of sovereignty” because it “is supreme within the legal system, even if it is not unlimited”. It makes possible the “fundamental act of popular sovereignty” and at the same time creates a paradox: the power that acts within the constitution can change the very standards that limit it. As German researcher U.K. Preuss notes, the power to amend “is necessary to preserve the flexibility and viability of the constitutional order, but can destroy it if used in an unconstitutional manner” [11, pp. 429, 430]. Given their importance, one might expect constitutional architects to create additional safeguards for these rules, for example, by setting a higher threshold for their amendment or even declaring them immutable. Experience shows that all these strategies are applied in one way or another when designing rules for constitutional amendments [12, pp. 655-685]. At the same time, due to constitutional laconicism, the list of institutional and legal means of ensuring the constitutionality of amendments to the constitution solely through its text cannot be considered optimal. Given the systemic link between constitution-making and law-making it is the parliament that comes European Science Law to the fore as the body responsible for amending the state constitution and therefore it is responsible for implementing parliamentary procedures for constitutional amendments. Usually, parliamentary regulations are prominent acts that mediate the order of parliament’s work through their regulation. At the same time, along with general procedures they also contain a system of special procedures aimed at regulating certain areas of parliamentary activity that are not permanent in nature unlike the rules of ordinary legislative procedure. They differ in other rules for considering issues and making decisions by parliament and are used to solve specific tasks that fall within its powers [13, p. 47]. Thus, somewhat separate from the general rules of procedure there is a set of rules governing the activities of the legislative body in the process of amending the Constitution. Given the legal non-identity of the constitution and the law and the constitutional separateness of the procedure for amending the constitution in Ukraine the latter procedure, carried out within the Parliament, acquires the status of a special parliamentary procedure and as such is subject to separate legislative regulation at the level of the Regulations of the Rules of Procedure of the Verkhovna Rada of Ukraine. This approach is supported by the legal positions of the Constitutional Court of Ukraine which stipulate the superior and unique role of the national parliament in the process of amending the Constitution and, accordingly, emphasize the importance of a special parliamentary procedure for amending the Constitution of Ukraine. The main ones state the following: 1) constitutional procedures for amending the Constitution of Ukraine provide for the mandatory participation of Parliament in this process. The bill on amendments to Sections I, III, and XIII of the Constitution of Ukraine [1] must be approved by a nationwide referendum but such a referendum is appointed by the President of Ukraine only after the draft law has been adopted by at least two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine [14]; 2) as the sole legislative body the Verkhovna Rada of Ukraine decides on amendments to the Constitution of Ukraine. The President of Ukraine (Article 154 of the Constitution of Ukraine), at least one-third (Article 154 of the Constitution of Ukraine) or at least two-thirds (Article 156 of the Constitution of Ukraine) of the people’s deputies of Ukraine from the constitutional composition of the Verkhovna Rada of Ukraine, who have the exclusive right to submit bills on amendments to the Constitution of Ukraine, submit these bills in accordance with the established procedure for consideration by the Verkhovna Rada of Ukraine. The Constitutional Court of Ukraine [19] provides an opinion on the compliance of these bills with the requirements of Articles 157 and 158 of the Constitution of Ukraine in accordance with the provisions of Article 159 of the Constitution of Ukraine exclusively to the Verkhovna Rada of Ukraine. Therefore, only the Verkhovna Rada of Ukraine may apply to the Constitutional Court of Ukraine for an opinion on the compliance of a bill on amendments to the Constitution of Ukraine with the requirements of Articles 157 and 158 of the Constitution of Ukraine [16]; 3) compliance with the constitutionally defined procedure for adopting a bill on amendments to the Constitution of Ukraine as a law is one of the European Science Law guarantees of its legitimacy, ensuring balance when making amendments to the Constitution of Ukraine and its stability [17]; 4) the constitutional procedure for the parliament to consider amendments to the Constitution of Ukraine in two consecutive stages was established with the aim of separating the preliminary approval of a bill on amendments to the Constitution of Ukraine and its final adoption as a law, which makes it impossible to adopt a bill on amendments to the Constitution of Ukraine as a law at a single regular session of the Verkhovna Rada of Ukraine and also gives the people’s deputies of Ukraine time for additional analysis of the content of this bill, clarification of the possible consequences of amendments to the Constitution of Ukraine, etc. [16]; 5) the existence of a relevant conclusion of the Constitutional Court of Ukraine is a prerequisite for the consideration of a draft law on amendments to the Constitution of Ukraine at a plenary session of the Verkhovna Rada of Ukraine [17]; 6) when amending the Constitution of Ukraine the principle of institutional continuity must be ensured which means that the state authorities defined by the Constitution of Ukraine continue to function in the interests of the Ukrainian people and exercise their powers, perform the tasks and functions defined in the Constitution of Ukraine, regardless of these changes, unless these amendments provide for a significant (fundamental) change in their constitutional status, including their liquidation [8]. The above legal positions imply that the Verkhovna Rada of Ukraine must participate in the implementation of constitutional changes, subject to the restrictions established by the Constitution of Ukraine. At the same time, the increased level of protection of amendments to the Constitution of Ukraine necessitates the implementation of the idea of protecting the relevant procedure at the level of the Regulations of the Verkhovna Rada of Ukraine as the main legislative act which, together with the Constitution of Ukraine, regulates the procedure for the parliament to introduce constitutional amendments (Article 141 of the Regulations [2]). It seems that the impeccability of the constitutional procedure for amending the Constitution of Ukraine must be matched by the impeccability of the parliamentary procedure for amending the Constitution of Ukraine which is described, regulated, protected and implemented by the Regulations of the Verkhovna Rada of Ukraine. This procedure is classified by the legislator as special (Section V) and the rules governing it are systematized in a separate (26th) chapter of the Rules of Procedure of the Verkhovna Rada of Ukraine, covering Articles 141 to 151 inclusive [2]. The special procedural rules for amending the Constitution of Ukraine are particularly complex and protective, designed to ensure constitutional stability and prevent political abuse when amending the Constitution of Ukraine. This procedure differs from the ordinary legislative process in terms of the subjects of legislative initiative, the stages of consideration, voting requirements and time constraints; it separately regulates the procedure for submitting, reviewing and adopting decisions on all constitutional bills, except those concerning amendments to Sections I, III, and XIII of the Constitution of Ukraine[1; 20], and those concerning these three sections (for which a European Science Law particularly complicated procedure is provided); in part, the provisions of the Rules of Procedure[2] in this section regulate, along with the work of parliamentarians, the activities of the President of Ukraine (as the entity responsible for amending the Constitution of Ukraine) and the Constitutional Court of Ukraine[19] (as the entity responsible for exercising preventive constitutional control over the constitutionality of the procedure for amending the Constitution of Ukraine). Conclusions As a result, the special procedural rules discussed in this article contain a system of interrelated constitutional and legal “safeguards” that ensure a balance between the need for flexibility (the possibility of updating the Constitution of Ukraine) and the need for stability (protection against political manipulation). This structure of the regulatory procedure contributes to the democratic legitimacy and institutional stability of the constitutional order and is therefore one of the components ensuring the effectiveness and constitutionality of the procedure for amending the Constitution of Ukraine, established in its Section XIII. Thus, the Regulations of the Verkhovna Rada of Ukraine act as a significant factor in providing normative guarantees against the adoption of unconstitutional, illegitimate, and undemocratic amendments to the Constitution of Ukraine, and the procedural rules for implementing such amendments are closely linked to the relevant constitutional procedure, being a form of its elaboration at the special legislative (procedural) level. References 1. Constitution of Ukraine of June 28, 1996. Information from the Verkhovna Rada of Ukraine. 1996. No. 30. Art. 141. 2. Regulations of the Verkhovna Rada of Ukraine: approved by Law of Ukraine No. 1861-VI of February 10, 2010. Information from the Verkhovna Rada of Ukraine. 2010. No. 14-15, No. 16-17. Art. 133. 3. Shcherbaniuk O. Forms and limits of amendments and additions to the Constitution: theoretical and practical aspects. Ukrainian Journal of Constitutional Law. 2023. No. 4. P. 47-57. 4. Kovalskyi V., Shapoval V. The current constitutional crisis is the result of critical errors in the system of separation of powers. Legal Bulletin of Ukraine. On-Line 22.03.2021. URL: https://constitutionalist.com.ua/volodymyr-shapoval-nynishnia-konstytut sijna-kryza-tse-naslidok-krytychnykh-pomylok-u-systemi-podilu-vlady/ 5. Decision of the Constitutional Court of Ukraine in the case of the constitutional submission of 252 people’s deputies of Ukraine regarding the constitutionality (constitutionality) of the Law of Ukraine «On Amendments to the Constitution of Ukraine» dated December 8, 2004, No. 2222-IV (case on compliance with the procedure for amending the Constitution of Ukraine) dated September 30, 2010, No. 20-rp/2010. URL: https://zakon.rada.gov.ua/laws/show/v020p71010#Text 6. Riznyk S. V. Constitutionality of normative acts: essence, assessment methodology, and enforcement system in Ukraine: dissertation ... Doctor of Law: 12.00.02 “Constitutional Law: Municipal Law”. Ivan Franko European Science Law National University of Lviv, Ministry of Education and Science of Ukraine; V. M. Koretskyi Institute of State and Law, National Academy of Sciences of Ukraine. Kyiv, 2021. 488 p. 7. Sellers M.N. Formal and Informal Constitutional Amendment, 50 General Reports of the XXth General Congress of the International Academy of Comparative Law – Rapports generaux du XXeme Congres general de l’Academie internationale de droit compare. Ius Comparatum Global Studies in Comparative Law. 2020. No. 12. P. 493506. 8. Berchenko G.V. Reservations of the Constitutional Court of Ukraine as an element of the procedure for amending the Constitution of Ukraine. Current Issues in Politics. 2020. Issue 66. P. 118-123. 9. Amar A.R. The Consent of the Governed: Constitutional Amendment Outside Article V. Columbia Law Review. 1994. Vol. 94. P. 457-508. 10. Michelman F.I. Thirteen Easy Pieces. Responding to imperfection; the theory and practice of constitutional amendment. Edited by Sanford Levinson. Princeton: Princeton University Press. 1995. Pp. ix, 330. Michigan Law Review. 1995. Vol. 93. Issue 6. P. 1297-1332. 11. Preuss U. K. The Implications of “Eternity Clauses”: The German Experience. Israel Law Review. 2011. Vol. 44. No. 3. P. 429-448. 12. Albert R. Amending constitutional amendment rules. International Journal of Constitutional Law. 2015. Volume 13. Issue 3. P. 655-685. 13. Magnovskyi I. Y. The legal nature of parliamentary procedures: a general theoretical aspect. South Ukrainian Law Journal. 2019. Issue 1. P. 45-48. 14. Decision of the Grand Chamber of the Constitutional Court of Ukraine in the case of the constitutional submission of 57 People’s Deputies of Ukraine regarding the compliance with the Constitution of Ukraine (constitutionality) of the Law of Ukraine “On the All-Ukrainian Referendum” dated April 26, 2018, No. 4-r/2018. URL: https://zakon.rada.gov.ua/laws/show/v004p710-18#Text 15. Decision of the Constitutional Court of Ukraine in the case of the constitutional submission of the President of Ukraine regarding the official interpretation of the provisions of part two of Article 158 and Article 159 of the Constitution of Ukraine (case regarding amendments to the Constitution of Ukraine) dated June 9, 1998, No. 8-rp/1998. URL: https://zakon.rada.gov.ua/laws/show/v008p71098#Text 16. Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of 51 People’s Deputies of Ukraine regarding the official interpretation of the provision “at the next regular session of the Verkhovna Rada of Ukraine” contained in Article 155 of the Constitution of Ukraine, dated March 15, 2016, No. 1rp/2016. URL: https://zakon.rada.gov.ua/laws/show/v001p710-16#Text 17. Decision of the Constitutional Court of Ukraine in the case of the constitutional submission of 51 People’s Deputies of Ukraine regarding the official interpretation of the provision “at the next regular session of the Verkhovna Rada of Ukraine” contained in Article 155 of the Constitution of Ukraine, dated March 15, 2016, No. 1-rp/2016. URL: https://zakon.rada.gov.ua/laws/show/v001p710-16#Text 18. Decision of the Constitutional Court of Ukraine in the case of the constitutional submission of 252 members of the Ukrainian Parliament European Science Law regarding the constitutionality (constitutionality) of the Law of Ukraine “On Amendments to the Constitution of Ukraine” dated December 8, 2004, No. 2222-IV (case on compliance with the procedure for amending the Constitution of Ukraine) dated September 30, 2010,No.20-rp/2010. URL: https://zakon.rada.gov.ua/laws/show/v020p710-10#Text. 19. Decision of the Constitutional Court of Ukraine (Grand Chamber) in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance with the Constitution of Ukraine (constitutionality) of certain provisions of paragraphs 4, 7, 8, 9, 11, 13, 14, 17, 20, 22, 23, 25 of Section XII “Final and Transitional Provisions” of the Law of Ukraine “On the Judicial System and Status of Judges” dated June 2, 2016, No. 1402-VIn dated February 18, 2020, No. 2-r/2020. URL: https://zakon.rada.gov.ua/laws/show/v002p710-20#Text. 20. On the Constitutional Court of Ukraine: Law of Ukraine No. 2136-VIII of July 13, 2017. Information from the Verkhovna Rada of Ukraine. 2017. No. 35. Art. 376. URL: https://zakon.rada.gov.ua/laws/show/2136-19#Text 21. Kostytskyi V. V. Constitutional reform in Ukraine: ways of transforming the political system; Institute of Legislative Forecasting and Legal Expertise. Kyiv, 2003. 22. Kostytskyi V. Separation of powers in the context of the theological and sociological understanding of law (essays on the sociology of law. Warsaw: Publisher: Constitutional Tribunal, 2023. 196 p.