Judge Bohdan Futey lectures on Constitutional reform (08/22/04)

Judge Bohdan Futey lectures on Constitutional reform

by Dr. Orest Popovych

NEW YORK - In 2004 Ukraine faces the choice of either embracing European and international standards of democracy, or reverting to a system where the rule of law is applied selectively for the benefit of those in power. This was the gist of the introduction by Judge Bohdan A. Futey to his lecture titled "The Rule of Law and Constitutional Reform in Ukraine Today" at the Shevchenko Scientific Society (NTSh) building on June 5.

The program was opened by NTSh president Dr. Larissa Zaleska Onyshkevych, who welcomed not only the speaker, but also Serhiy Pohoreltsev, Ukraine's Consul General in New York. Next, the speaker's professional accomplishments were summarized by Prof. Vasyl Makhno, who chaired the program.

Dr. Futey, a judge of the U.S. Court of Federal Claims in Washington, is also a legal scholar who has lectured as a visiting professor at the Ukrainian Free University in Munich and the University of Passau (both in Germany), as well as at several universities in Ukraine. In addition to numerous articles in the area of jurisprudence, Dr. Futey has authored the monograph "Establishing the Rule of Law: Ukraine 1991-2001," published in Kyiv in 2001 (in Ukrainian). As a counselor to both the Verkhovna Rada of Ukraine and the working group that prepared Ukraine's Constitution (adopted on June 28, 1996), Judge Futey has become intimately familiar with the legal and political realities that govern Ukraine.

The speaker focused on three legal problems in Ukraine that have elicited critical comments and disapproval of the international community: 1. The decision by the Constitutional Court of Ukraine to permit President Leonid Kuchma to run as a presidential candidate for the third time. 2. The proposal to have Ukraine's president elected by the Verkhovna Rada. 3. The irregularities involved in the recent mayoral election in Mukachiv.

In the center of the legal controversies, said Dr. Futey, stands the Constitutional Court of Ukraine, which is the sole body of constitutional jurisdiction and whose decisions are final. Indeed, as the sole interpreter of the constitutionality of the laws, the court has had the historic opportunity to shape the legal system of Ukraine. Unfortunately, after some excellent initial decisions at the start of its tenure, the Court applied flawed logic, according to Dr. Futey, in its decision to permit President Kuchma to seek a third term.

In 1994, at the time Mr. Kuchma was first elected president of Ukraine, there existed a law specifying that a person cannot be elected president for more than two terms; subsequently, this limitation was incorporated in the Constitution adopted in 1996. The court's argument that President Kuchma was elected only once since 1996 (in 1999) and was therefore eligible now for a "second" term ignored the 1994 election law, thus violating the precedent where the court, in other cases, had honored the relevant existing laws that preceded the Constitution.

Another unconstitutional development, according to Judge Futey, was the attempt by the Verkhovna Rada to change the election law so that Ukraine's president would be elected by the Parliament. This would violate the Constitution, which mandates that a president be elected only by a direct popular vote. Furthermore, any amendments to the Constitution require an all-Ukrainian referendum, not just a vote in the Verkhovna Rada. In a democratic society the right to vote is one of the most important human rights, Dr. Futey reminded his audience.

A third legal problem plaguing Ukraine is the election disputes that have mushroomed throughout the country in disproportionate numbers. A lack of consistency in terms of jurisdiction and venue are part of the problem, causing much confusion. For example, the recent much-publicized election dispute in Mukachiv was referred for adjudication to a court in Lviv, which is in a different region. Similarly, an election dispute in Odesa was resolved by a court in Kirovohrad. For the upcoming presidential election a court is needed to guarantee the proper functioning of the electoral process, so as to ensure social stability - but such a court is still waiting to be established, he noted.

Not all the flaws in the legal system of Ukraine are the fault of the judiciary, continued Dr. Futey. The legislative branch, the Verkhovna Rada, has yet to enact the Civil Procedural Code, the Criminal Procedural Code and other procedural codes; to remove the contradictions between the commercial and civil codes and to implement trial by jury, as guaranteed by the Constitution. Furthermore, the executive has yet to provide a mechanism for the enforcement of judicial decisions.

The future of the rule of law in Ukraine depends primarily on the extent to which Ukraine's judiciary can become independent of the other branches of power, which has not yet happened, said Judge Futey. In order to fulfill their constitutional obligations, the judges must be independent of the executive in terms of their material needs as well as psychologically, and they could use a healthy dose of self-respect.

Once the judges feel that they can apply their rulings consistently and evenhandedly, according to the Constitution and other laws, independent of political pressures, Ukraine's legal system will gain the respect and confidence of both the domestic and international community, opined Dr. Futey.

He expressed the hope that 2004 will be remembered as the year in which Ukraine took a step forward in the right direction in the legal and political arena.

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