The Chairman of the Verkhovna Rada of Ukraine Volodymyr Lytvyn sent a letter to the Constitutional Court of Ukraine with information concerning the constitutional motion of 51 people?s deputy of Ukraine in regard to constitutionality of provisions of the current Rules of Procedure for election of the Head of the Parliament.
The subject of right to constitutional motion 51 people?s deputy of Ukraine addressed the Constitutional Court of Ukraine with a request to declare the provisions of part five and six of article 75 and part four of article 77 of the Rules of Procedure of the Verkhovna Rada of Ukraine, adopted by the Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine" of February 10, 2010 No. 1861-VI (hereinafter the Rules of Procedure) in the part of the procedure of secret ballot voting by submitting the decision concerning the candidates to the office of the Chairman of the Verkhovna Rada of Ukraine and his/her voting out of office with prohibition of use of the ad hoc procedure, and on condition that ballots for such secret voting were received by at least two thirds of people?s deputies from their actual number, as contradicting to the Constitution of Ukraine.
"People?s deputies of Ukraine who addressed with this constitutional motion, believe that these norms of the Rules of Procedure limit the right of the Verkhovna Rada of Ukraine to use the powers granted by part one of article 88 of the Constitution of Ukraine to elect and vote out of office the respective parliamentary officials freely," claims the letter.
V. Lytvyn states that systematic analysis of respective norms of the Constitution of Ukraine and the Rules of Procedure in the context of issues raised in the constitutional motion testifies to the following.
Under article 88 of the Constitution of Ukraine, the Verkhovna Rada of Ukraine elects the Chairman of the Verkhovna Rada of Ukraine who exercises powers granted by the Constitution of Ukraine following the procedure determined by the law on the Rules of Procedure of the Verkhovna Rada of Ukraine. "The Fundamental Law does not contain any reservations and cannot objectively regulate the method and procedure of voting to elect of vote out of office the officials of the Verkhovna Rada of Ukraine, including its Head," states the letter.
The Law of Ukraine "On the Rules of Procedure of the Verkhovna Rada of Ukraine" is a special regulatory act determining the procedure of power execution by the Verkhovna Rada of Ukraine in case of election or voting out of office of the Chairman of the Verkhovna Rada of Ukraine (articles 74-77).
"The norms of parts five and six of article 75 and of part four of the article 77 of the Rules of Procedure determine the only way of voting for the abovementioned issues, as the main aim of secret ballot voting is to protect actual declaration of will of the people?s deputies of Ukraine when voting for the candidates to the office of the Chairman of the Verkhovna Rada of Ukraine on an alternative basis, as well as in case of voting him out of office," stresses V. Lytvyn.
Chairman Elect of the Verkhovna Rada of Ukraine is the candidate who received the majority of votes of people?s deputies from the constitutional composition of the Verkhovna Rada of Ukraine (part six of article 75 of the Rules) following the determined procedure. This norm corresponds to article 91 of the Constitution of Ukraine, under which the Verkhovna Rada of Ukraine adopts laws, resolutions and other acts by the majority of its constitutional composition, except cases presupposed by the Constitution.
"Approval of secret ballot voting for election of the Chairman of the Verkhovna Rada of Ukraine, as well as consideration of its postponement on condition that the ballots for secret voting were received by at least two thirds of people?s deputies of Ukraine from their actual number aims to create the conditions for maximally free expression of will of the people?s deputies of Ukraine, ensure personal voting of every member of the Parliament that should reflect objectiveness of their views, as well as is aimed at constitutional legal result. The method of voting determined by the Rules of Procedure shall not limit the powers of the Parliament to take decisions regarding procedural issues, and these are the questions of its internal work organization, which cannot be subject to constitutional compliance assessment," states the letter.
"Referring to the Decision of the Constitutional Court of October 17, 2002 No. 17-рп/2002, the subject of right to constitutional motion claims that the Constitution of Ukraine lacks such category as "actual number of people?s deputies of Ukraine," and the decisions should be taken irrespective of how many people?s deputies of Ukraine did not participate in voting or did not receive the respective ballots (p. 4 of the constitutional motion). The procedure of personal participation of people?s deputies of Ukraine in ballot voting determined by articles 75 and 77 of the Rules of Procedure excludes the possibility of passing deputy cards to other people?s deputies, which has become a sad practice of "voting instead of someone else" and is a direct violation of part three of article 84 of the Constitution of Ukraine, which, apparently, suits people?s deputies of Ukraine who authored this motion," states the letter.
The existing procedure of ballot voting in cases when the Chairman of the Verkhovna Rada of Ukraine is elected or voted out of office, can be changed by the Verkhovna Rada of Ukraine only (clause 15 of part one of article 85, and clause 21 of part one of article 92 of the Constitution of Ukraine) following the rules of legislative activity with respective approval signed by the President of Ukraine.
The Constitutional Court of Ukraine has drawn attention to the fact that the list of issues that shall be governed by the laws of Ukraine is of imperative nature. Among them are also organization and operational procedure of the Verkhovna Rada of Ukraine (clause 21 of part one of article 92 of the Constitution of Ukraine). In the Decision of April 1, 2008 No. 4-рп/2008 (the case on the Rules of Procedure of the Verkhovna Rada of Ukraine) the Court stressed that this way the Constitution of Ukraine determines that it is only the Verkhovna Rada of Ukraine that can determine in the respective law the procedure of operation of the body of legislative power and the status of its officials (passages 3 and 4 of subclause 4.2 of clause 4 of the motivational part of the Decision).
"Therefore, trying to prove unconstitutionality of the determined voting procedure in regard to the abovementioned issues and holding open voting by cards, the subject of right to constitutional motion hopes that the Constitutional Court of Ukraine is entitled to declare the internal organization of the determined secret ballot procedure as contradicting to articles 6, 19 and 91 of the Constitution, which does not lead to renewal of another form of voting as the Verkhovna Rada of Ukraine shall fill the gap in its Rules of Procedure," states the letter.
"The subject of right to constitutional motion did not take into account that regulation of internal organization of work of the Parliament lies beyond the legislatively determined competence of the constitutional jurisdiction body, which was stressed by the Constitutional Court of Ukraine its legal standing (act of March 21, 2002, No. 9-у/2002, act of June 27, 2000 No. 2-уп/2000 etc). The Constitutional Court of Ukraine proceeds from the fact that "it is not entitled to interfere into political and internal organizational issues of operation of the Verkhovna Rada of Ukraine, improve the current regulatory acts and fill the gaps in them" (passage 3 of clause 7 of the motivational part of the act of the Constitutional Court of Ukraine of June 27, 2000 No. 2-уп/2000).
To change such legal standing, proposed by a group of people?s deputies of Ukraine, would mean to interfere into the competence of the Verkhovna Rada of Ukraine that adopts the law, and that is approved by the signature of the President of Ukraine regarding constitutionality of powers of the Parliament to determine internal organizational (procedural) legal relations on its own.
Therefore, proceeding from everything said above, there are no grounds for compliance assessment in regard to separate provisions of article 75 and 77 of the Rules of Procedure of the Verkhovna Rada of Ukraine that determine the procedure for election of the Chairman of the Verkhovna Rada of Ukraine and voting this person out of the office, as this problem belongs to organization of operation of the single legislative body exclusively," stresses V. Lytvyn.