Clarification to President Yanukovych regarding the language law
A large number of academics and civic organizations have addressed a letter to President Yanukovych in which they state the following:
On 11 July during a meeting with the Club of Chief Press Editors of CIS Countries, in answering questions regarding the prospects for the draft Law on the Principles of State Language Policy, you said the following: “The best guide in this question is the European Charter on Languages” “how much this law corresponds to that charter it is for experts to say”. Furthermore, you stated that the legislators who initiated this law have assured you that “it has undergone a Venice Commission assessment”.
We would draw your attention to the following three points:
1. In the hierarchy of legal documents which define the principles of State language policy and the procedure for the use and support of languages, it is Ukraine’s Constitution and not the Charter which has the highest legal force. It is Article 10 of the Constitution, and not the provisions of the Charter, which should be the “best guide in assessing this draft law. In the view of Ukrainian specialists, the Kivalov-Kolesnichenko draft law fails on many fundamental points to comply with Ukraine’s Constitution and the Judgement of the Constitutional Court from 14 December 1999, No. 10/99 giving an official interpretation of Article 10 of the Constitution.
In contrast to Ukraine’s Constitution which defines the principles of language policy and the general procedure with respect to use of languages, the Charter merely encourages countries to freely choice the optional framework measures it lists for “the protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinction”. Moreover the Preamble to the Charter envisages that “the protection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them”.
2. The Kivalov-Kolesnichenko draft law was indeed assessed by the Venice Commission, however in its Opinion from 2 December 2011 the Commission stated that the content of the document, despite the aims and principles declared in Article 5, shows that the actual draft law contains mechanisms for the domination of the Russian language at the expense of Ukrainian as State language.
The Venice Commission called on the authors of the bill to make a thorough review of terminology and use it consistently in the text, and mainly to achieve “a fair balance between the protection of the rights of minorities, on the one hand, and the preservation of the State language as a tool for integration within society on the other” (66, 68).
Thus, according to the Venice Commission assessment, the draft law needs further fundamental work on it. This same view was held by all profile institutions of the Academy of Sciences (the Institute for Language Studies on 16 September 2011; the Ukrainian Language Institute on 22 September 2011; the Institute for Political and Ethno-National Research on 22 September 2011; and the Institute for State and Law on 5 September 2011); the Central Legal Department of the Verkhovna Rada; as well as the Parliamentary Committee on Culture and Spiritual Matters (23.09.2011); on the Budget (03.11.2011) the Ministry of Finance (09.09.2011); the Justice Ministry (27.09.2011); the Ukrainian Language Information Fund (O9.09.2011); the Higher School of the Academy of Sciences (16.09.2011); the Kyiv National University Institute of Language and Literature (20.09.2011).
The Kivalov-Kolesnichenko draft law was devastatingly criticized in the conclusions of the Ministry of Finance (09.09.2011); the Justice Ministry (27.09.2011); the Parliamentary Committee on Culture and Spiritual Matters (23.09.2011) on the Budget (03.11.2011); and in the conclusion of the Central Legal Department of the Verkhovna Rada from 23 May 2012.
At the hearings held by the Parliamentary Committee on Culture and Spiritual Matters on 20 June 2012 the draft law on the Principles of State Language Policy was found to not comply with Ukraine’s Constitution and to be in need of radical conceptual reworking.
3. From when the draft law was tabled in parliament, it was accompanied by systemic and flagrant infringements of Articles 82 and 84 of the Constitution and the Law on the Verkhovna Rada Regulations. The draft law was registered in breach of Article 91 §§ 3 and 6 of the Law on the Verkhovna Rada Regulations since its authors had failed to provide financial-economic justification and a comparative table with the outlined amendments to current laws, set out by Section 11 of the Transitional Provisions of the draft law.
During consideration of the draft law in its first reading on 5 June Article 102 of the Verkhovna Rada Regulations was infringed since the draft law was voted on without discussion of its fundamental principles, provisions, criteria and structure.
The vote was also held in breach of Article 84 of the Constitution which demands that MPs vote in person.
During the evening session of the Verkhovna Rada on 3 July, the First Deputy Speaker Adam Martynyuk encouraged infringements of the Regulations through his manipulative “technology”. Without a decision from the Coordination Council and consideration of the numerous amendments submitted by MPs, he put to the vote the question of whether to add Draft Law No. 9073 on the Principles of State Language Policy to the agenda. This move failed with only 219 votes in favour.
The second vote concerned his proposal to return to the only just rejected issue on changing the agenda, with the result this time in favour being 241. After this, Adam Martynyuk did not put the question of whether the draft law should be added to the agenda to the vote, but when straight, without even defining the version which was to be voted on to a vote as to whether to pass Draft Law 9073 in its entirety (with 248 votes registered as for this). The law was thus voted on without even being included on the agenda, and mainly without being prepared for the vote.
From the legal point of view, there was no discussion, vote and adoption of the language law in its second reading and could not be on principle since the chief committee in accordance with Article 31 of the Verkhovna Rada Regulations was continuing to work on its preparation for its second reading in connection with the huge number of amendments (over 2000). For this very reason the draft law was not (and could not be!) stamped by the head of the profile committee, the head of the secretariat of that committee and the heads of the legal and editing offices of the Verkhovna Rada as required by Article 117 § 1 of the Regulations, and was also not (and could not be!) handed out to MPs at least 10 days before consideration at a plenary session of the Verkhovna Rada. Due to the lack of a draft law prepared for its second reading, it was impossible to carry out the requirements of Article 119 of the Verkhovna Rada Regulations regarding article by article discussion and voting on the amendments on the basis of a comparative table and agreement of the final version of the law. Thus the MPs voted for a document which simply didn’t exist, for a phantom document, and one moreover in breach of Article 84 of the Constitution.
You thus have no grounds for considering the decision of the Verkhovna Rada on 3 July regarding the draft Law on the Principles of State Language Policy as the adoption of a law since there was no such law. as Guarantor of Ukraine’s Constitution you should take all measures to ensure that the anti-constitutional Kivalov-Kolesnichenko draft law which has stirred up the public, divides Ukraine and is an attempt upon its constitutional order is withdrawn altogether.
The letter is signed by three Professors from the Kyiv Mohyla University: Volodymyr Vasylenko, Larysa Masenko and Volodymyr Panchenko,
The list of endorsees is given below in Ukrainian. It includes
The Congress of National Communities of Ukraine;
The Kharkiv Human Rights Group;
The Association of Jewish Organizations and Communities of Ukraine;
The Association of Ukrainian Writers;
The Secretariat of the National Union of Writers of Ukraine;
The Taras Shevchenko Prosvita Society
The Centre for Civil Liberties
The Artists’ Association Last Barricade
And a large number of others
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