On the constitutionality of declaring unconstitutional the 2012 language law in Ukraine and the prospects of a united Ukraine

by Halyna Mokrushyna

On February 28, the Constitutional Court of Ukraine declared unconstitutional the 2012 law ‘On the Principles of State Language Policy’ of Ukraine on the grounds that on the day of the reading of the bill on July 3, 2012, the Parliament of Ukraine (Verkhovna Rada) violated the procedures  for consideration and approval of the draft law. [1] These procedures are determined by the Constitution of Ukraine. Systematic violations include the fact that the draft law did not pass a second reading; Rada deputies were physically blocked by deputies of the ruling majority from speaking on the law from the Rada podium and from voting; and using the voting cards of deputies who were absent or using the cards of other deputies to obtain the sufficient number of votes (ibid).

The decision was taken one year after a group of 57 Rada deputies filed a lawsuit with the Constitutional Court of Ukraine in which they asked to declare unconstitutional the 2012 language law. This law was adopted during the presidency of Viktor Yanukovych, when the Party of Regions and the Communist Party of Ukraine governed by coalition in the Rada. The law granted to ethnic minority languages the status of ‘regional language’ in areas where that language minority constitutes at least ten percent of the local population. This status provided for the use of the regional language in public administration, media, and education, in parallel to the Ukrainian language. The law was drafted according to the European Charter for Regional or Minority Languages and the recommendations of the Venice Commission, a body of European constitutional law experts. The parliamentary debates of the law during the spring and summer of 2012 were very heated, featuring fist fights, torn shirts and torn suit jackets among Rada deputies.

The heated debate and violent skirmishes among Rada deputies reflected the acuteness of the language issue in Ukraine. It has divided Ukrainian society since the first days of the emergence of Ukraine as an independent country in 1991. A large part of Ukrainians feel that the Ukrainian language has been under threat from the Russian language in post-Soviet Ukraine and have sought to limit the use of Russian in the public sphere through legislation (more on this subject here). Politicians in post-1991 independent Ukraine have played the language card in electoral campaigns, further splitting the society.

On February 23, 2014, the Rada voted to revoke the 2012 law. The vote happened in the wake of the illegal ousting of President Yanukovych, in an atmosphere of intimidation and threats to deputies by the right-wing militants of the ‘Maidan’ movement. The vote sent a crystal clear message to the Russian speaking population in Crimea and in the south and the east of Ukraine about the ultra-nationalist character of the new power holders. Mass protests, later called the ‘Russian Spring’, rolled throughout these regions. Olexandr Turchynov, illegally appointed as the Acting President of Ukraine following the overthrow of Yanukovych, realized the dangers which the revocation entailed and declined to ratify the Rada vote, putting the decision on hold. But it was too late. Donetsk and Lugansk in eastern Ukraine rebelled and took up arms when they were attacked.

A group of determined Rada deputies did not give up on the cause of fomenting the fires of language conflict. In July of 2014, they filed a complaint with the Constitutional Court of Ukraine to get the 2012 law declared as unconstitutional. The deputies stated that the provisions on regional languages create favorable conditions for the domination of regional languages (euphemism for Russian) over the state language (Ukrainian). They said the law favours one regional language (Russian) over others, which can be equated to discrimination. For them, the biggest crime of them all was that the law gave to local (regional) authorities the right to regulate the usage of minority languages.

The decentralization of power in Western democracies, including in Canada, is a cornerstone of healthy, pluralistic political and social systems. Yet Ukrainian ultra-nationalists claiming to build a democratic Ukraine believe that in Ukraine, the central power should impose an outdated one-language, one-nation policy. This is dangerous for any bilingual country, not just Ukraine.

The second argument of the deputies seeking to delegitimize the 2012 language law was that adoption of the law featured breaches of voting procedures, as those are laid out in the Standing Order of the Verkhovna Rada.

The Constitutional Court of Ukraine opened proceeding on the deputies’ appeal in February of 2015. It took the court three years to reach a verdict; on February 28, 2018, the law was declared unconstitutional. The Court did not touch on all the text of the law and did not deliberate whether it contradicts in any way the Constitution of Ukraine (no wonder, given the hot debates of this law in the Ukrainian society in 2011-2012). Instead, in a Machiavellian move, the Court decided to resort to a less controversial and easier-to-prove set of arguments – the breaching of voting procedures. Article 152 of the Constitution of Ukraine states that under such circumstance, a law or a section of law can be declared unconstitutional.

It is very ironic that the Constitutional Court of Ukraine invoked the violations of the procedures of voting in the Parliament as the pretext to delegitimize the language law. To start with, the new rulers of Ukraine came to power through a coup d’état. They illegally removed Viktor Yanukovych from office, falsely claiming that he abrogated his presidential powers. According to Article 108 of the Constitution of Ukraine, the powers of the President can be terminated before the end of his or her term in four cases: if the President resigns voluntarily; if he/she is not able to fulfill the duties for health reasons; if the President is removed from office through impeachment; or if the President dies. None of these conditions applied when the Verkhovna Rada declared that Yanukovych had abrogated his functions and it appointed Turchynov as acting president.

The new Verkhovna Rada, which was elected in the fall of 2014, has violated the procedures of voting innumerable times. According to the standing orders of the Rada, a draft law has to pass three readings. In the first reading, the deputies discuss the main principles and provisions of the bill and adopt it as a basis for further discussion. They can also send it for revision, submit it again for a first reading, or decline it outright. Deputies can make suggestions and amendments to the draft law during 14 days following the day when the draft was voted at first reading. In the second reading, the deputies discuss the draft law article by article. They have five days to propose amendments. In the third reading, the draft law is refined and finalized. No amendment that is deemed to change the content of the law is allowed for consideration.

The rule requiring three readings is designed to insure high-quality discussion and drafting of bills. It is not mandatory. The law on the Standing Orders of the Verkhovna Rada provides for the possibility to adopt the bill as a whole in the first or the second readings if there are no objections/comments on the draft law from deputies or other legal entities with legislative powers or from the expert or juridical subdivisions of the Rada apparatus. However, as a rule, a draft law should pass three readings, as stipulated in article 102 of the Standing Orders of the Verkhovna Rada.

Since the beginning of its work, the current Rada has infringed this rule many times. The Civic Network ‘OPORA’ analyzed 115 laws that were adopted in the first months after the October 2014 election–between November 27, 2014 and April 20, 2015. It found that two thirds of the laws were adopted in the first reading, without amendments. Moreover, all of these laws were voted through a so-called shortened procedure, which reduces greatly the possibility to voice opposing views. For instance, members of the specialized committee tasked with reviewing the draft law and who do not agree with their committee conclusions cannot speak out. Deputies who are against the bill cannot speak either. Under such circumstances, the opposition factions in the Verkhovna Rada who abstain from voting do not even have to explain their position. The fact that the majority of the laws during the period in question were adopted in the first reading also means that deputies did not have the opportunity to propose alternative draft laws. Often deputies would vote for a shortened consideration not of one bill but of a series of bills.

One example suffices to show how the Verkhovna Rada breaches its own Standing Orders in pushing through its agenda. In April of 2015, it adopted the package of controversial ‘de-communization’ laws. At the beginning of each session, the Verkhovna Rada adopts the order of the day for the duration of the plenary session. This document lists all of draft laws to be examined by the deputies. A draft law, after it is tabled by a legal entity with legislative powers (a deputy, for instance), is reviewed by a group of experts (Chief Scientific and Expert Directorate), who provide an academic and legal assessment of the bill and its conformity to various requirements of Ukrainian legislation (economic, financial, ecological, etc.). The draft has also to be examined by four committees, including the corresponding specialized committee of the Rada. If the committees approve the draft law, with or without amendments, then not earlier than two days later, the Rada votes to include this draft law in its order of the day. The deputy or the group of deputies who submitted the draft law must send the reports of the committees and group of experts to all deputies no later than seven days preceding the formal deliberations of the draft in the Rada.

The draft of the ‘Law on the Condemnation of Communist and Social-Nationalist (Nazi) Totalitarian Regimes in Ukraine and on the Banning of the Propaganda of their Symbols’ was not on the agenda of the Rada’s winter 2015 session. It was added later, on April 7.

Here is the chronology of the passing of that law: it was registered on April 6, 2015; included in the order of the day on April 7; reviewed by the specialized committee on April 8 (!); and approved by vote through the shortened procedure on April 9. In other words, the draft law was included in the order of the day BEFORE the Committee submitted its report, even though the committee was very expedient – it reviewed a 22-page draft law in one day. The deputies did not receive the report of the specialized committee in time to study the law for which they would be voting. The group of experts, whose role is to meticulously analyze a draft law, had three days to do so. They submitted their report on April 9 and did not recommend submitting the draft law to voting. Yet, on the same day, the Rada adopted the law in a shortened procedure.

It must be noted that the Law on the Foundations of Language Policy was also adopted in violation of the Standing Orders of the Verkhovna Rada. For example, there was no examination of the financial and economic consequences of the draft law, and it was included in the order of the day in spite of the decision of the main committee to decline the draft. However, the passing of the law through the Rada at least followed the established order – it was tabled on August 26, 2011, sent to the specialized committee on August 29, and sent to deputies on September 6. The specialized committee (Committee on Culture and Spirituality) submitted its report on May 24, 2012; in other words, the committee took nine months, not one day, to study the draft law. On the same day in the Rada, many members of the opposition had the occasion to voice their dissatisfaction and protests against the draft law.

Members of the current opposition in the Rada who were against the Law on the Condemnation of Communism – mainly consisting of the Opposition Bloc and the group Vidrodzhennia – were deprived of such possibility. They did not even see the text of the law.

The Constitutional Court of Ukraine could declare the ‘Law on the Condemnation of Communist and Social-Nationalist (Nazi) Totalitarian Regimes in Ukraine’ unconstitutional as well, if it was to use the same reasoning it used in revoking the language law. In fact, the Opposition Bloc filed a legal action with the Constitutional Court that it declare as unconstitutional the ‘decommunization’ law, based on the grounds that it violates rights and freedoms of citizens and the Constitution of Ukraine, and contradicts democratic norms and international standards. Deputy Nimchenko, one of the signatories of the lawsuit, stressed that the most dangerous aspect of the law is that it provokes a split of society along ideological, social, and spiritual lines and poses a real threat to the statehood of Ukraine (ibid).

The statehood of Ukraine almost collapsed during the ‘Euromaidan’ protests and the coup d’état which followed in the winter of 2013-14 precisely for these reasons. Half of the country did not accept the anti-Russian rhetoric of right-wing nationalists from Maidan and the new political leadership that illegally ceased power. Ukraine as a whole can exist only in its predominantly bilingual and bicultural form. This fragile balance was broken during the Maidan protests of December 2013-February 2014. The country cracked.

A fundamental problem of Ukraine is that because of the power struggle between various groups in the Parliament, all attempts to hold a national referendum on matters of vital importance for Ukraine as a country, such as external political orientation towards Russia or Europe and the question of Russian language, has never taken place. One party would block another party’s attempt to organize a referendum, and vice versa. Sociological surveys are a reliable indicator of the population’s mood and thoughts, but they are not enough if a fundamental matter is at stake. The reality is that the population of Ukraine was split between Europe and Russia up to the eruption of Euromaidan in December of 2013, just at the time when the purported “pro-Russian” government of Yanukovych was leading Ukraine in the final steps of the signing of an association agreement with the European Union.

Ukraine was the most stable under those presidents who knew how to tip-toe between Russia and the West – Leonid Kravchuk (1991-1994) and Leonid Kuchma (1994-2005). Kuchma, especially, understood the crucial importance of maintaining good relations with Russia. During the ‘Orange Revolution’ protests of 2004, post-soviet Ukraine split for the first time after Victor Yushchenko defeated Yanukovych in a highly disputed presidential election. Yushchenko represented the Ukrainian West, whereas Yanukovych represented the Ukrainian East. The Euromaidan later deepened this split.

‘De-Russification’ as official policy of Ukraine has been gaining momentum since the fatal vote by the Rada to repeal the 2012 language law. The 2017 law on education restricts the rights of Russian-speaking Ukrainians to study subjects in Russian in post-primary education, whereas other national minorities of Ukraine, such as Hungarians or Romanians, can do so, at least in theory, because their native language is one of the official languages of the European Union. According to the new education law, only official languages of the European Union and English as the language of international communication will be used in the post-primary public and state education. This is a clear violation of the Constitution of Ukraine, whose Article 10 guarantees “an unhindered development, use and protection of Russian language and languages of other ethnic minorities of Ukraine” (more on the issue here).

The new draft law ‘On ensuring the functioning of the Ukrainian language as a state language’ is written in the same logic – to reduce the use of Russian language in all spheres of life. According to this draft law, when it comes to language of education at the postsecondary level, an institution of higher education can decide to teach one or several disciplines in English and/or other official language of the European Union. The Russian, Byelorussian and Hebrew, languages spoken in Ukraine are not official languages of the European Union (Art. 17, p. 6).

The new language law provides for the creation of a new state institution – Commissioner for the protection of the state language and its inspectorate. It will consist of 27 language inspectors who will ensure that all functionaries of the state, at all levels of power, speak, work, conduct all meetings and write all documents in an appropriate Ukrainian. The new language law also stipulates that public humiliation or disrespect of the Ukrainian language as one of the symbols of the Ukrainian state is punishable by a fine, an arrest for a term up to six months or imprisonment for a term up to three years (!).

There is no longer provision for the use of national minority language at work, office administration or in local documentation by bodies of state power and local self-government, as the previous law on languages provided. Instead, the law states that the order of the usage of languages of national minorities is defined by the ‘Law on National Minorities of Ukraine’ (Art. 10, p. 8). The irony is that this law stipulates that the language to be used in the work, office administration and documentation of the local state power organs and organs of self-government is determined by Article 11 of the 2012 language law which the Constitutional Court of Ukraine declared non-constitutional. In other words, this question is left in limbo.

This article provided local authorities with the power to use a “regional language” in parallel with Ukrainian in the public administration, proceedings, documentation, and other segments of public sphere. Following the adoption of the law in July of 2012, nine oblasts in South-Eastern Ukraine voted to adopt Russian as the regional language. It shows clearly that there was a strong grassroots demand from the Russian speaking Ukrainians to be able to use Russian in all spheres of their lives, not only in private.

The repealed language law offered a democratic solution to the eternal problem of the Ukrainian/Russian bilingualism. The current and previous political leadership of Ukraine share responsibility for the events of the last four years. Yanukovych and the Party of Regions ignored the will of their electorate in South-Eastern Ukraine, who were in favour of closer ties with Russia and granting Russian language a special status in Ukraine. The current politicians who came to power through a coup d’état have made the same mistake, but they have gone much further, unleashing a war against their fellow citizens.

When a country is divided along cultural and linguistic lines, as is Ukraine, a special competence, wisdom, and maturity are required of the political leadership to maintain equilibrium between various centrifugal forces in the society. Tragically, independent Ukraine chronically lacks skillful leaders. In spite of the will of half of the population, the current leadership pushed the country towards European integration, ignoring demands to grant Russian a special status in a country where, according to the recent polls, one third of the population has Russian as their mother tongue.

It remains to be seen how exactly the delicate question of the Russian language will be tackled by the current Ukrainian leadership, who allegedly embrace European ideals of tolerance and multiculturalism. But judging by the new education law and the draft of the proposed new language law, the Ukrainian elite will continue to constrain the linguistic rights of the Russian ethnic minority, destroying what remains of Ukrainian plurality and diversity. “We learn from history that we do not learn from history,” Hegel once said. It could be no truer in the case of Ukraine.

Note:
[1] Wherever possible in this article, weblinks are English language sources. The weblinks to the Ukrainian Constitution and to laws and texts of Rada deliberations are in Ukrainian. The official translation of the Ukrainian Constitution in English can be found here.

source

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