Seminars focus on Ukraine's Constitutional Court (05/10/98)

Seminars focus on Ukraine's Constitutional Court

by Victor Lychyk

WASHINGTON - The U.S.-Ukraine Foundation in cooperation with the Pylyp Orlyk Institute for Democracy held the first in a series of seminars on "Integrating the Constitutional Court into Ukraine's Civil Society" on Friday, March 27, in Kyiv.

This program, which is funded by a grant from the Education and Cultural Bureau of the United States Information Agency under the authority of the Fulbright-Hays Act of 1961, seeks to enhance public understanding of Ukraine's Constitution and especially of the Constitutional Court.

The Constitutional Court was created by the Constitution of 1996 and is the only government entity that has the authority to issue official interpretations of Ukraine's Constitution.

The topic of the first seminar was "Defending the Constitutional Rights of Ukraine's Citizens. Requirements and Procedures for Bringing a Case before the Constitutional Court." Presenters included Judge Stephen Williams, circuit judge of the U.S. Court of Appeals for the District of Columbia Circuit, Judge Bohdan Futey of the U.S. Court of Federal Claims and a member of the USUF Board of Advisors, and attorney Stephen Nix, who has served as legal counsel of the International Foundation for Election Systems in Ukraine.

The seminar consisted of two sessions, one at the National Academy of Sciences before representatives of various non-governmental agencies and the other at the Kyiv-Mohyla Academy before about 70 law students.

Constitutional rights

Judge Bohdan Futey discussed the rights embodied in the Constitutions of the U.S. and Ukraine. He also noted that Ukraine's Constitution of June 28, 1996, contains a number of rights not found in the old Soviet Constitution, such as freedom of association, movement, and privacy of communication. The new Constitution does, however, retain certain rights found in the old Soviet Constitution, including the rights to housing, gainful employment, and rest and leisure. The latter group of rights (known as "positive") are much more difficult to enforce than rights in the former group (known as "negative") because their realization requires substantial action by the government. For example, if a Constitution states that everyone has the (positive) right to a job, it may be difficult to find work for all unemployed persons if employers have no money to hire them. If the public sees that its guaranteed rights are not being provided, it may lose confidence in the government and the courts. It is precisely establishing and maintaining the credibility of the court system that is crucial for Ukraine's nascent democracy, Judge Futey said.

The Constitutional Court

The Constitutional Court has the power to rule on the constitutionality of laws of Ukraine's Verkhovna Rada as well as on legal acts of the President, the Cabinet of Ministers and the Verkhovna Rada of the Crimean Autonomous Republic. It also determines the constitutionality of international treaties to which Ukraine is a party, issues official interpretations of the Constitution and laws of Ukraine, and decides whether the process of presidential impeachment has been conducted according to the Constitution.

Cases may be brought before the Constitutional Court in two ways. First, a number of governmental entities have the right, or legal "standing," to bring a case (konstytutsiyne podannia) before the Court and request a ruling on any of the items mentioned above.

Second, citizens of Ukraine, foreigners, non-citizens and legal entities have the right to file an appeal (konstytutsiyne zvernennia) with the Constitutional Court for an official interpretation of the Constitution or laws of Ukraine in order to realize or defend their constitutional rights and liberties.

In conclusion, Judge Futey pointed out that during the Soviet period, courts were seen strictly as places where punishment was meted out and "not as a place where justice is sought." He said the new Constitution and the Constitutional Court have created opportunities for citizens to assert their rights and encouraged them to use the courts if they believe that their rights have been violated.

Developing a respected and effective court system

Clearly, one of the challenges before the court system in a young democracy like Ukraine is to gain the confidence of the public. In his presentation, Judge Stephen Williams discussed the practices and doctrines that have been developed by the U.S. courts that have helped them earn the confidence of Americans.

"The authority of courts is essential to a free society, but the courts have only as much authority as people think they have," Judge Williams stated. In order to earn this authority, judicial power must be exercised prudently, not brazenly. As a rule, U.S. courts have done this.

The most important doctrine that promotes prudent use of judicial power comes from Article III of the U.S. Constitution, which grants the Supreme Court and lower federal courts jurisdiction over cases and controversies. In fact, these courts will only hear cases, i.e., give the plaintiff "standing" before the court, if the plaintiff alleges that an injury has been caused by the defendant and that the injury can be remedied by a court ruling.

The doctrine of "standing" prevents the courts from ruling on hypothetical matters. For example, they will not consider a request to determine whether a bill going through Congress is constitutional or not because the factual setting of an actual case is absent.

In addition, federal courts will not decide an issue on constitutional grounds when it can be decided on nonconstitutional grounds.

Judge Williams concluded that, although it may seem paradoxical, the self-restraint demonstrated by the courts has been a source of strength to them because it reinforces the public's perception that they are doing what courts should, that is, ruling on cases and controversies.

The Constitutional Court and the Elections

Attorney Stephen Nix spoke about the Constitutional Court's ruling on the Law on Elections. Although the Court did find some of the individual provisions unconstitutional, it upheld the law as a whole.

First, the Court let the mixed system of voting and the 4 percent threshold for party list candidates stand because it determined that this was a political issue, not a constitutional one. By demonstrating its unwillingness to get caught up in political matters, the Court established an important legal precedent for Ukraine.

Second, the Verkhovna Rada and the Central Election Commission acted immediately to implement the Court's decision.

Third, although the Court held that the practice of allowing candidates to run in both a single mandate district and on a party list was unconstitutional, it applied this rule only to future elections, thereby permitting the March 29 elections to take place.

Finally, Mr. Nix emphasized that the timing of the Court's decision was just as important as its substance. If the Court had waited until after the elections to rule on the law, it would have remained unclear whether the new Parliament should be dissolved, whether the old Parliament should continue serving or whether new elections should be held.

Following the second session the seminar speakers, along with this writer, Constitutional Court project manager at the U.S.-Ukraine Foundation, and Valentina Telychenko of the Pylyp Orlyk Institute, met with the president of the Kyiv Mohyla Academy, Dr. Viacheslav Briukhovetsky, and with the dean of the academy's Law School, Volodymyr Sushchenko.

For more information, please contact the foundation by phone at (202)347-4264, by fax at (202)347-4267 or by e-mail at usuf@usukraine.org.