A recent interview, published today by Ukranews (Copy below) , with Ukrainian Constitutional Court Judge Stepan Havrsh has brought into question the professional independence and seriously compromised the independence of the Constitutional Court.
Stepan Havrsh was a political appointment made by Ukraine’s President, Viktor Yushchenko following the presidents illegal dismissal of three constitutional Court judges on the eve of the Constitutional Courts ruling on the legality of the president’s own decrees.
The interview raises a number of issues not the least being concerns about a member of the supreme court prejudging and discussing cases before the court outside the court itself.
Stepan Havrsh has confirmed, what has clearly perceived as having been the real motive of the president inference in the functioning of the court, the court is to avoid considering the question of the legality of the presidents decree at all costs.
Stepan Havrsh was reported as stating “I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections… How the court can agree to consider such a petition under such conditions”.
Obviously accoring to teh Presidents appointee Stepen Havrsh the political agreement between various political forces overrides due process and constitutional law in Ukraine.
The president’s interference in the functioning of the court and the statement made by the president’s political appointee seriously undermines democracy and rule of law in Ukraine.
It should also be noted that a court of appeal has ruled that the president’s actions in dismissing the three constitutional Court judges was illegal. Two of the judges have since tendered their resignation and one judge has been reinstated following the decision of the Kyiv appellant court.
If confidence is to be restored in the Ukrainian legal system then the Court must make a definitive determination on the question as to under what authority and condition the president has to dismiss Ukraine’s democratically elected parliament.
The President himself had made a request to the Constitutional Court seeking the Courts deliberations on the same question.
For Stepan Havrsh to dismiss the request for review by the statutory number of members of parliament prior to the courts due consideration and determination only further adds to the disintegration of public confidence in the ability of the Court to act in fulfillment of its own constitutional duty.
In the circumstances where the Constitutional Court is unable or unwilling to consider the question of legality of the president’s actions then it is more so incumbent of the European Venice commission to independently review constitutionality of the president’s actions. Failure to do so only compromises and undermines the independence of the Parliamentary Assemble Council of Europe.
Constitutional Court Judge Havrysh Doubts Constitutional Court Will Consider Petition On Constitutionality Of September 30 Rada Elections
Ukranews (08:39, Tuesday, July 24, 2007)
Stepan Havrysh, whom President Viktor Yushchenko recently appointed as a Constitutional Court judge, has expressed doubt that the Constitutional Court will consider the petition that 46 parliamentary deputies filed over the constitutionality of the presidential decree that scheduled early parliamentary elections for September 30.
Havrysh was speaking to Ukrainian News.
«I think that there are no prospects of the Constitutional Court considering this petition because it is presently on an annually recess. The court is not working,» Havrysh said.
At the same time, Havrysh said that Constitutional Court judges could consider such a petition at an emergency session, which the court’s chief justice has the right to convene.
«However, [an emergency session] will mean that the Constitutional Court is challenging the Ukrainian political stability. Moreover, I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections… How the court can agree to consider such a petition under such conditions,» Havrysh said.
According to him, 10 Constitutional Court judges also have the right to interrupt the court’s recess and convene such a session.
However, Havrysh described such an option as highly improbable.
«The reactionary counter-forces that exist within the [ruling] coalition are simply attempting to undermine stability in the country, not even to disrupt the elections but specifically to undermine stability in the country,» Havrysh said while commenting on the decision to file such a petition with the Constitutional Court.
As Ukrainian News earlier reported, 46 parliamentary deputies have filed a petition in which they ask the Constitutional Court to consider the constitutionality of President Viktor Yushchenko’s June 5 decree that scheduled early parliamentary elections for September 30.
On June 5, Yushchenko signed the decree No. 497/2007 that scheduled early parliamentary elections for September 30. The decree changed the date of the early parliamentary elections for the third time and re-worded the reason for the elections.
He cancelled his previous two decrees, in connection with which parliamentary deputies also filed petitions with the Constitutional Court.
All Constitutional Court judges, with the exception of Chief Justice Andrii Strizhak, are on vacation from July 16.