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Implementation legislation post Constitutional amendments

November 18, 2016

On 16th November members of the exceptionally sage Venice Commission quietly arrived in Kyiv.

Its reason for coming, to cast a critical and wise eye upon the statutory legislative proposals required to implement the changes to the Constitution of Ukraine regarding the judiciary that came into effect from 30th September 2016.

For those readers wondering why major legislative changes to the fundamental law of the land were not simultaneously accompanied by statutory implementation/enabling legislation (the processes, the how’s and the who’s etc) it should be noted that what occurs now passes for timeliness and planning.

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The Constitution (in which ever version) for more than 2 decades has always guaranteed a right to trial by jury – however nobody has ever had a trial by jury because there has never been any statutory law passed defining what a jury actually is, how it is composed, the processes, the how’s and the who’s to form and dismiss one (or persons therein).  As such this long-standing constitutional right remains denied.  (The  argument put forth by legislators when asked why this constitutional right is withheld is that Ukrainian society is not ready for a jury system.)

Therefore, the statutory legislative events surrounding constitutional change that entered into force only a few weeks ago are occurring at lightening speed – and are timely insomuch as is timely for Ukraine.

The Venice Commission has now left.  No formal “Opinion” has yet been released by the conclave of wisdom that viewed, reviewed, pondered and prodded the draft text.  What changes, if any, were made during discussions is unknown.

Whatever the case, and without awaiting the formal Venice Commission “Opinion”, the draft statutory and enabling legislation will be submitted to the Verkhovna Rada next week.

It remains to be seen if the Verkhovna Rada will delay or prolong its internal procedures pending the release of the Venice Commission “Opinion” – or not – prior to putting the draft legislation to the vote.  Nevertheless there appears to be the probability that statutory implementation/enabling legislation may well appear to support constitutional amendments within months of those amendments coming into force – which must be approaching something of a record.

That said, even if that implementation/enabling statute swiftly comes to pass making the constitutional amendments to the judiciary more than otherwise semi-redundant prose, there remains the matter of actual implementation – something likely to be far less timely than the process thus far.

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