NEWS ANALYSIS: Rule of law in Ukraine: forward or backward? (01/18/04)

NEWS ANALYSIS

Rule of law in Ukraine: forward or backward?

by Judge Bohdan A. Futey

As we enter the year 2004, Ukraine stands at a crossroads: one route leads to integration and acceptance into the European and international communities; the other to regression and reversion to a country where the rule of law is selectively applied and undermined for the benefit of those who possess power.

Nowhere is this more evident than in the attention that has been given to the recent decisions of the Constitutional Court of Ukraine and to the recent events that transpired in the Verkhovna Rada.

The Constitution of Ukraine explicitly designates the Constitutional Court as "the sole body of constitutional jurisdiction in Ukraine."_1_ The court's mandate entails providing "the official interpretation of the Constitution of Ukraine and the laws of Ukraine."_2_ The court is responsible for hearing and deciding issues involving conformity of laws, presidential decrees and other legal acts with the Constitution. Decisions of the court are final; Article 150 of the Constitution establishes their authority: "On the issues envisioned by this Article, the [Court] adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed."_3_

Since the court's inception on January 1, 1997, its judges have occupied a position that occurs once in the development of a nation. They have the unique opportunity to shape the law and the legal system in the same manner as Chief Justice John Marshall did in the United States in Marbury v. Madison 200 years ago._4_

Initially, the Constitutional Court lived up to the great challenge it had undertaken. In "Re Residents of City of Zhovti Vody,"_5_ the court interpreted three articles of the Constitution with the cumulative effect of affirming that citizens shall have access to the courts for the protection of rights. Further, in the Ustymenko case, the court held that: 1) an individual has a right to obtain information about oneself, regardless of whether it is in possession of national or local governmental authorities; 2) certain provisions of Ukraine's law on information must be understood as to prohibit the collection of any information, retaining it and/or disseminating it without an individual's consent._6_ In addition, in 1998 in "Re Law on Election of Deputies to the Verkhovna Rada of Ukraine" the court declined to address the provision of the election law establishing a 4 percent threshold for party representation in the Parliament, because its resolution would entail deciding a "political question."_7_

Most pertinent to the present controversy, however, is the case "Re Dual Mandates of Verkhovna Rada Deputies." The court held in 1997 that national deputies elected after June 8, 1995, may not simultaneously hold two state positions._8_ The court reasoned that the Constitutional Agreement, which first established the prohibition against dual mandates, was in place as of June 8, 1995, and, therefore, any national deputy elected after said date was bound by its terms. The court, however, excluded national deputies who were elected between March 27, 1994, and June 8, 1995. The court explained that those national deputies could hold dual mandates because at the time they were elected there was no such prohibition.

With the principles enunciated in Chapter XII of the Constitution in mind, as well as court's decision in "Re Dual Mandates of Verkhovna Rada Deputies," the recent decision clearing the way for President Leonid Kuchma to seek a third term is unsupportable. The Constitution provides that the court's decisions are binding. The court's decision concerning the prohibition on dual mandates was not overturned, and, therefore, remains on the books as a ruling to be adhered to. While the dual mandates decision was referenced by the court in the latest decision, its holding was limited to the proposition that laws could not be retroactively applied.

Nevertheless, the dual mandates decision and the "third term" decision are logically inconsistent. In the dual mandates decision, when examining which law to apply to disputes concerning national deputies, the court looked to the constitutional norm in place at the time the individuals were elected. Applying this decision and its reasoning would lead to the conclusion that the constitutional norm in place at the time president Kuchma was elected controls. The Constitution adopted in 1996 and prior legislation addressing presidential term limits have consistently limited the President to two terms: the 1978 Constitution of Ukraine SSR; the 1991 Law on the President; 1994 Law on Election of the President; and the 1995 Constitutional Agreement reached between the Parliament and President Kuchma, and signed by President Kuchma. For instance, the 1994 Law on Election of the President, Article 2, Section 2, under which President Kuchma ran for the first time and was elected, provides:

"In order to be elected as the President of Ukraine a person must be a citizen of Ukraine with the right to vote, not younger than 35 years of age, who has resided in Ukraine no less than 10 (including the last five) years, and speaks the state language. One and the same person cannot be elected President of Ukraine for more than two terms."_9_

The applicable law as well as the constitutional norm in place at the time President Kuchma was elected, as well as at the time President Kuchma ran for re-election in 1999, limited the president to two terms. This would have been the inescapable conclusion if the court had engaged in a straightforward application of its prior rulings. For one reason or another, such an exercise did not take place. At this point any attempt to reconcile the two decisions would be an exercise in futility. The constitutional norm was not uniformly applied. The court applied a different standard to national deputies in 1997 than it is now applying to President Kuchma.

The aim of any judicial system, either Continental (Civil Law) or Anglo-Saxon (Common Law), is to provide stability through the consistent application of the law and adherence to the Constitution. The court in its most recent decision failed to achieve this goal.

The whimsical and contradictory application of judicial rulings has far-reaching negative affects. It instills uncertainty and confusion not only in legal circles, but in the people of Ukraine as well as in the international community. It removes the cloak of respect which veils an independent judiciary and ensures that skepticism accompanies each judicial decision. All involved, or contemplating involvement, with Ukraine are deprived of the confidence attendant with even-handed application of justice in accordance with constitutional safeguards.

Under the theory of separation of powers (Article 6), any default on the part of the judiciary would ideally be counterbalanced by an effective Legislative branch. Recent events cast doubt on whether Parliament is capable of fulfilling that role. It appears that rushed political reforms have distracted Parliament from completing its long-outstanding legal reform. The Parliament must keep in mind its commitment to enact the Civil Procedural Code, the Criminal Procedural Code, as well as other procedural codes, and eliminate the contradictions between the Commercial and Civil codes which became effective as of January 1, 2004. Trial by jury guaranteed by the Constitution and the Law on the Judiciary must also finally be implemented. Further, the lack of enforcement of judicial decisions by the executive must be addressed. This reform must begin with the Parliament itself, where several deputies to this day disregard the court's 1997 decision and maintain dual mandates.

The upcoming year will determine if Ukraine will move forward as a democratic nation supporting a civil society that protects individual rights under the rule of law, or will take a "step backwards" as the Venice Commission recently noted. To avoid the latter, the judiciary must maintain its independence and dedicate its efforts toward the former. Put simply, judges will not be respected until they respect themselves.

Another issue, however, looms large on the horizon. The courts of general jurisdiction which adjudicate election disputes are plagued with confusion involving jurisdiction and venue. If these crucial legal issues are not resolved prior to the October 2004 presidential election, they may produce obstacles to the peaceful and constitutional transition of presidential power.

It is not too late for judges to fulfill their constitutional mandate. Rather than speculate about a possible unfortunate sequence of events, there is a general hope that the clouds over Ukraine's political sphere will clear, and 2004 will be remembered for Ukraine's "step forward."

Judge Bohdan A. Futey serves on the U.S. Court of Federal Claims in Washington and has been active in various rule of law and democratization programs in Ukraine since 1991. He served as an advisor to the Working Group on the Constitution of Ukraine that was adopted June 28, 1996.

1. Constitution of Ukraine, Chapter XII, Article 147. [Back to Text]

2. Id. [Back to Text]

3. Article 150. [Back to Text]

4. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) (establishing the doctrine of judicial review). [Back to Text]

5. Visnyk Konstytutsiinoho Sudu Ukrainy 1 (1998):34. [Back to Text]

6. "Re K.H. Ustymenko," Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1997):31. [Back to Text]

7. This decision is similar to that reached by the United States Supreme Court in Baker v. Carr, 369 U.S. 186 (1962). [Back to Text]

8. "Re Dual Mandates of Verkhovna Rada Deputies," Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1997):5. [Back to Text]

9. 1994 Law on Elections of the President, Article 2, Section 2 (emphasis added). [Back to Text]

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