Experts' roundtable welcomes Ukraine's new Constitution (07/21/96)

Experts' roundtable welcomes Ukraine's new Constitution

by Yaro Bihun

WASHINGTON - The Interna-tional Foundation for Election Systems (IFES), which has been involved in helping Ukraine fashion its new post-Soviet Constitution, held an experts' roundtable discussion on the document after it was passed on June 28 by the Supreme Council of Ukraine.

The featured participants of the roundtable, held on July 10, were Yuri Shcherbak, Ukraine's ambassador to the United States; Bohdan Futey, U.S. Court of Federal Claims judge; and Stephen B. Nix, an election law consultant at IFES.

All three hailed the new document, with the latter two also pointing to some potential trouble spots.

Ambassador Shcherbak said that the adoption of the Constitution proved that Ukraine and the Ukrainian people had reached a political consensus about their future democratic development and reconfirmed their will to build an independent state, "oriented on Western values of freedom, democracy, law and order."

The vote, which he described as "a dramatic act of national reconciliation and consolidation," also proved that Ukraine has a "democratic political elite capable of running the state in a democratic manner." At the same time, the ambassador said, it was a "heavy blow to Communist and other radical leftists in Ukraine and abroad who dreamed about the restoration of the Soviet empire and of Communist ideology."

"This is a turning point for us"-Ambassador Shcherbak said, quoting from a letter from President Kuchma to President Clinton - when democratic and economic reforms became "irreversible."

"Ukraine has crossed its Rubicon at last, but we are only at the beginning of our way," President Kuchma wrote. "An extensive legislative base has to be established to ensure the implementation of the provisions of this fundamental law."

Judge Futey, who had been advising the Ukrainian government on American constitutional principles, elaborated on legislative requirements of the new Constitution and points that needed further attention.

(Ambassador Shcherbak expressed his gratitude to Mr. Futey and IFES for their contribution to the drafting of the Ukrainian Constitution and noted that, appropriately, it was passed in Parliament on June 28 - Judge Futey's birthday.)

"It is important to emphasize," Mr. Futey said, "that the Constitution demonstrates Ukraine's move toward a democratic system based on the rule of law and toward a free market economy."

He pointed out that the document contains all of the accepted "negative" individual rights (such as freedom of speech, press, religion and assembly). And in the case of "positive" rights (such as to housing, employment, etc., popular in Soviet-era constitutions), they are softened by such phrases as "the right to have the possibility to earn a living" and not just a "right to work."

"Unfortunately, many of the protections guaranteed by these rights have been curtailed with 'claw-back' provisions - where, on the one hand, the Constitution purports to ensure a particular right but, on the other hand, certain qualifications nullify that protection," he said.

As an example, Judge Futey cited Article 41, which states that the right of private property is inviolable, but adds that the right of private property is "granted on the basis and within the limits determined by law." This, he said, allows the Supreme Council, by a simple majority vote, to enact a statute that alters a constitutional principle that required a two-thirds majority to pass.

While the Constitution establishes three separate branches of government - the executive, legislative and judicial - he said, it is not yet clear whether they will also be co-equal, as they would have to be to provide an effective system of checks and balances.

While the drafters should be commended for improving the judicial system over the old Soviet model, Mr. Futey said, by assigning judicial review to a special Constitution Court, which is separate from the supreme and other courts, the Constitution "skews the principle of checks and balances in favor of the other two branches."

Judge Futey also pointed out that until a Constitutional Court is formed, the Supreme Council is empowered to rule on the constitutionality of the laws it passes.

As Mr. Nix noted, "Now that the Constitution is adopted, the real need is to adopt laws which are required pursuant to the Constitution."

There is a need for implementing legislation dealing with the language issue, procedures on the right to own and acquire land, human and civil rights, standards for political asylum, such habeus corpus issues as arrest and detention, the court system, monopolies, the Constitution of the Crimea, among other issues, he said.

Like Judge Futey, Mr. Nix is concerned about how the separation of powers develops. "Although (the Constitution) clarifies, to a certain degree, the separation of powers issues between the executive and legislative branches, it remains to be seen whether the judicial branch will emerge as a true independent and co-equal body of power," he said.

"To me, that is the big question mark. That remains to be seen," he added. Another question mark for Mr. Nix deals with how soon the Constitutional Court will be formed.

"I predict that tensions between the executive and legislative branches will continue over the next several months," he said. "Thus the need for a quick constitution of the Constitutional Court to decide matters that will be in dispute."

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