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Democracy and the rule of law in Ukraine

Ukraine declared independence from the Soviet Union on August 24, 1991. Since then, it has continuously used elections and compromise to build itself as a nation instead of resorting to violence.

Ukraine declared independence from the Soviet Union on August 24, 1991. Since then, it has continuously used elections and compromise to build itself as a nation instead of resorting to violence.

A series of laws as well as the Ukrainian Constitution have been passed and revised in order to ensure that elections are free, fair, and democratic. The Orange Revolution of November 2004 saw Ukrainian citizens peacefully demanding that their votes count and succeeding.

Most recently, the March 2006 national parliamentary elections were declared to be transparent and fair. (1)  Although more work needs to be done to bring the rule of law and true democracy to Ukraine, particularly on the local level, the country has taken many steps towards creating a democratic system.

Despite Ukraine`s steady progress towards democracy, the leadership recently took a significant step backwards, specifically in the legal area.

Following the fraudulent presidential run-off election in 2004, which sparked the Orange Revolution, the Verkhovna Rada passed several amendments to the Constitution known as the political reform that became effective January 1, 2006.

Although the political reform resolved the 2004 presidential election crisis, it was hastily adopted and not thoroughly thought out as evidenced by the considerable confusion surrounding the formation of the majority coalition and new government following the March 2006 parliamentary election.  The status of the political reform still remains in question.

In a decision handed down by the Constitutional Court on October 5, 2005, just prior to the expiration of the nine year term for most of the Judges, the majority of the court stated that any change in the political system of Ukraine must be submitted to and approved by a national referendum. (2)

Many critics of the reform, including myself, (3) believe that the political reform is a change in the political system because it converts Ukraine from a Presidential-Parliamentary system to a Parliamentary-Presidential system and is, therefore, unconstitutional unless submitted to a national referendum, regardless of any other irregularities.

The Ukrainian Constitution allows Parliament to amend the Constitution in some aspects, but the political reform steps beyond the confines of Parliament`s powers as described in the Constitution.

For nearly ten months, however, there was no quorum in the Constitutional Court to consider the constitutionality of the political reform because parliament refused to swear in Constitutional Court appointees and avoided electing its share of justices.

On August 4, Parliament passed and  President Yushchenko signed a bill prohibiting the Constitutional Court from deciding on the amendments to the Constitution passed as part of the political reform.  This is clearly an attempt to prohibit the Constitutional Court from considering the constitutionality of the political reform now that a quorum exists.

This law is obviously unconstitutional itself.  Specifically, it violates Article 8 of the Constitution, which guarantees individuals the right to appeal issues of constitutional rights and freedoms, and Article 147, which gives the Constitutional Court jurisdiction over all "issues of conformity of laws" (4) with the Constitution.

This law is also unconstitutional because it abridges the Rada deputies` right to bring an appeal challenging the political reform in violation of Article 150.

Even if the Rada would have attempted to pass the law as a constitutional amendment, such an amendment would not have passed muster under Article 157, which prohibits the constitution from being amended in such a way that it takes away rights of the people.  As I said over a year ago "it is inconceivable that reforms of such magnitude would be "immune" from constitutional scrutiny." (5)

I am surprised that in order to solve the political crisis, the leadership chose to take a step backwards from implementing a rule of law system by passing this legislation.  Hopefully, there will be at least forty five deputies to challenge the law as well as the political reform.

The political reform changed the process by which most cabinet ministers are appointed.  Now, the majority in the Verkhovna Rada has the power to select a candidate for Prime Minister for nomination by the President and most other ministers, and also maintains the right to terminate any minister. (6)

The President, in his capacity as commander-in-chief and head of foreign affairs, will now appoint the ministers of Defense and Foreign Affairs.  The President also appoints the Prosecutor General and the Head of the SBU (Security Service), but must obtain the consent of the Verkhovna Rada to dismiss them.  The cabinet of ministers will be able to create new ministries and executive agencies instead of the President. (7)

The greatest hurdle in Ukraine`s continued progress towards democracy after the March 2006 parliamentary election was implementing the political reform. There was a great deal of confusion and disagreement particularly as to what the President`s powers were in nominating the Prime Minister.

For example, the President now has fifteen days to decide on the nomination of the majority coalition`s candidate for Prime Minister.  There is no indication in the amended constitution, however, as to what would happen if the President does not make a decision within those fifteen days. Furthermore, the purpose of the fifteen days is unclear.

Is it meant to give the President time to consider the Prime Minister`s qualification?  Or is it time to allow the President to negotiate agreements with factions in Parliament that will be contingent on the nomination of the Prime Minister?

This would seem to be the spirit of the law even if it is not the letter of the law.  Therefore, it is essential that the Constitutional Court use its powers under Article 150 of the Constitution to interpret the provisions of the political reform.

Although the Parliament finally resolved the Constitutional Court crisis by swearing in the appointed judges, it still failed to address the issue of the oath of office.  Pursuant to a questionable provision in the Law on the Constitutional Court, each candidate, regardless of whether he or she was appointed by the President, or elected by the Verkhovna Rada or the Council of Judges, must take an oath of office before the Parliament. (8)

Although the Constitution provides for the oath of office of the President and Rada deputies, the Constitution does not have such requirements for judges of the Constitutional Court. 

 

The swearing-in requirement, in my view, therefore, is likely unconstitutional itself because it allows the vitality of the Constitutional Court to rest in the hands of the Verkhovna Rada - a clear violation of the separation of powers (Article 6).

The Law on the Constitutional Court can not give Parliament any oversight authority that the Constitution does not already provide (9) and Article 153 (10) of the Constitution can not be interpreted as providing authority to require an oath.  Naturally, such a law could be applicable only to judges elected by the Rada, but not by the President or the Council of Judges.

Parliament once again neglected its duties with regard to the Constitutional Court by not abolishing this oath of office and thereby removing a clear impediment to the separation of powers.

It is quite apparent that the greatest challenge facing the rule of law in Ukraine is the question of an independent judiciary.  In a January 23, 2006 speech commemorating that first anniversary of his inauguration, President Yushchenko announced to the nation that 2006 would be a year of reform and that the judicial system would be a key element of change. (11)

As a result of this address, President Yushchenko formed the National Committee to strengthen democracy and the rule of law in Ukraine.  On March 22, 2006, the Committee adopted a new Concept Paper for the judiciary in Ukraine.

Therefore, the aim is clear, to strengthen judicial independence and the rule of law in accordance with Ukraine`s Constitution, as well as standards approved by the European community and the rest of the free world.

In my opinion, this Concept is a valiant effort to strengthen some aspects of court proceedings and guarantee citizens access to the courts, but as a whole it seems to me that it fails to address the problem of reforming the judiciary in-depth, and provides for additional ways to exercise control over the judiciary.

Furthermore, it may be in conflict with the Constitution as enacted on June 28, 1996, it violates the principal of separation of powers (Article 6), and the rule of law commitment (Article 8).  The idea of having government inspectors for the judiciary is not an encouraging practice (guarantee) for judicial independence.

Also, it fails to address many aspects of the present law on the judiciary and it undertakes to provide solutions that are not very democratic.  It barely touches on aspects of education at law schools and the role of legal/professional organizations (like the American Bare Association (ABA) in the United States).

Judicial independence does not mean the judges do as they choose, but doas they must in accordance with the Constitution and laws of the country. Judicial independence in the final analysis will depend largely on the conscience and courage of the judges themselves.  Judges will not be respected until they respect themselves.

As there cannot be a market economy without private ownership of property, there cannot be a system based on the rule of law without judicial independence.

In addition, the judiciary needs to have its own constituency, primarily the legal profession and strong bar associations.  These will be responsible to expose unethical practices of the judges, and/or coercive tactics upon judges and enlist the press on their side.

In the United States the major defenders or critics of the judiciary are members of the legal profession themselves (ABA), law school professors, as well as the media.

It would be refreshing and welcome news if professors of law schools in Ukraine would start to speak out, as well as the association of lawyers, jurists, the Ukrainian Bar Association, and hopefully the World Congress of Ukrainian Jurists.

There is no questions that the judiciary in Ukraine needs to be reformed. What is needed is to strengthen the checks and balances - not control over the judiciary by the executive.

Provide adequate salaries for judges, insuring appropriate funding and assistance for the courts, prompt publication and availability for judicial decisions, transparency in decision making, enforcement of judicial decisions are ways to eliminate corruption among the judiciary.

Nevertheless, greater access of citizens to judges should not mean or indicate ex parte communications behind closed doors.  This practice should be eliminated completely.

It is hoped that a debate on judicial reforms will continue and that the parliament of Ukraine, after it begins functioning, will seriously take all views, including the judges of Ukraine, before it adopts a reform that will affect judicial independence for many years to come.

Hopefully, President Yushchenko will be able to add judicial reform to his list of accomplishments.  Although he has not yet been successful in many of his goals, the increased freedom of the press during Yushchenko`s term is a significant accomplishment.

Since Yushchenko has taken office, the press has not suffered repercussions from the government for criticism of the administration.  In fact, the press has freely commented on members of the President`s family`s and cabinet ministers` lavish living.

Many reports have been made on events that would not have come to light in the previous administration.  For example, a Rada deputy recently assaulted a cameraman, an incident that was well reported and 948 journalists signed a petition calling for an investigation and possible prosecution.  At least in this aspect, Yushchenko has stewarded the Ukrainian people`s progress towards democracy.

The most recent examples of the growth of democracy and the rule of law in Ukraine are the March 2006 parliamentary elections and the formation of the new government.  The winners and losers of the March 2006 parliamentary elections are clear.

The Party of Regions obviously won the popular vote, Yulia Tymoshenko`s bloc performed better than expected, Our Ukraine bloc underperformed, and Lytvyn`s People`s Bloc was undeniably a loser.

The biggest winner of all, however, were the Ukrainian people because by general consensus the parliamentary elections of March 2006 were truly democratic. (12)  Although the success of the Party of Regions, and its leader Viktor Yanukovych, has been denounced as a step backwards, or even a failure of democracy, this is not so.

The March elections were free and fair, there was virtually no evidence of vote tampering, and the government`s assets were not used to support any candidate over another.

Despite Mr. Yanukovych`s unsavory past, particularly with regard to the allegations of vote rigging in the 2004 presidential election that sparked the Orange Revolution, the Ukrainian people have spoken. (13)  Thankfully, their voices were not silenced by illegal voting practices or official pressure.

Ukraine`s post-Soviet history has, at the very least, provided hope and confidence in the ability of new democracies to succeed without the use of force and bloodshed.  During perestroika, Ukraine held an election pre-independence in March 1990.

Since then Ukraine has held numerous elections after independence, including four presidential elections (in 1991, 1994, 1999, and 2004), four parliamentary elections (in 1994, 1998, 2002, and 2006), and numerous local elections, each of which occurred without major violence.

The trend in Ukraine has been to resolve conflicts by the ballot box or negotiations and compromise.  Thus, the concepts of "one man, one vote" and equal protection have taken root in Ukraine and continue to grow.

In 1995, despite an acrimonious dispute between then-President Kuchma and the Verkhovna Rada, an agreement delineating the executive and legislative branches` powers and principles for self-government was reached.  Unlike many other former Soviet countries, a dispute was resolved diplomatically instead of by violence.

As a result of this compromise, Ukraine was able to adopt a constitution a year later, taking yet another step toward joining the community of democratic nations that place the rule of law and a free market economic system among its highest values.

The process that culminated in the adoption of a Constitution was, by no means, solely one of agreement and harmony; rather, as one might expect, this Constitution was born of compromise.  The Venice Commission on Constitutional Development praised the constitution "as a document capable of bringing true democracy to Ukraine."14

Ukraine faced an enormous challenge to democracy in the 2004 Presidential elections.  In the months leading up to the 2004 Ukrainian Presidential election, grave concerns were expressed regarding whether Ukraine would move forward as a democratic nation supporting a civil society which protects individuals rights under the Rule of Law, or would take a "step backwards" as the Venice Commission had noted. (15)

On October 31, 2004 held  its fourth Presidential election since independence, followed by a November 21 run-off.  Both rounds, however, were marred with allegations of massive fraud.  In particular, international monitoring organizations noted serious deficiencies in the election process and many countries, including the United States, likewise questioned the election results.16

Following the November 21, 2004 run-off in the presidential election and the ensuing litigation, with the Orange Revolution gaining momentum, tensions between the Parliament, the Prime Minister, the outgoing President, and the opposition were running high.  The use of force appeared almost inevitable.

As was the case so many times before, however, the Ukrainian politicians, with the help of a number of foreign leaders, sat together at the negotiating table instead of taking up arms.

The parties agreed to a simultaneous vote in the Verkhovna Rada on a constitutional amendment (17) that transferred some of the powers of the President to the Parliament (18) and a bill amending the law on presidential elections. (19)  The Verkhovna Rada passed both on December 8, 2004.

The opposition, led by Yushchenko, demanded amendments to the law on Presidential elections to prevent vote rigging and the resignation of Yanukovych, the Prime Minister at the time. 

 

In particular, the opposition sought guarantees that elections would be fair and not fraudulent.  Under the new law, the opposition was able to replace members of the Central Election Commission and put in measures to minimize election fraud. (20)

In addition, the use of administrative resources for elections was banned. Finally, the law allowed for a rerun of the November 21 run-off election. (21)  These changes ultimately enabled Yushchenko to win the election.

For his part, Yushchenko has once again solved the most recent political crisis of four months by using compromise and discussion.

In negotiations that went down to the wire, the President attempted to guarantee a commitment to the ideals upon which he was elected by holding roundtable talks with all of the parties regarding his "Universal for National Unity" which includes his pro-West provisions, including seeking NATO and EU membership, as well as the unitary system of government and Ukrainian as the only state language (this is in the Constitution). (22)

If the party leaders did not sign the declaration, and no government was in place, the President considered dissolving Parliament under Article 90 of the Constitution (the last day for forming the coalition government was July 25, 2006) as a last resort, and held roundtable discussions with Moroz, Tymoshenko, Yanukovych, and other party leaders to that effect. (23)

On August 3rd, at 2:00 a.m., President Yushchenko announced that Yanukovych, as well as other party leaders, including Moroz, had signed the "Universal for National Unity" and that additional parties would ratify it in the coming days. (24) 

 

In addition, Yushchenko announced that he was nominating Yanukovych as Prime Minister.  To date, Yulia Tymoshenko has not signed the agreement,and the Communist Party signed with reservations.

Although Ukraine has made significant strides towards democracy,  the rhetoric of pre- and post- independence rule of law movements have not fully blossomed into reality. 

 

The progress in areas such as elections has been steady, but in the legal realm, progress has been slower than one would hope.  The resolution of the political crisis following the March 2006 elections is another step towards creating a stable democratic government.

Although the pairing of  Yushchenko as President and Yanukovych as Prime Minister seems to be a marriage of opposites, in many ways it could also be viewed as a positive.  Working in collaboration, these two men may be able to bring Ukrainians from east and west together and help resolve the issues of national identity.

On the other hand, new legislation that prohibits the Constitutional Court from reviewing the political reform is a blow to the principles of separation of powers and the rule of law. 

 

As the success of the Orange Revolution and the March 2006 elections have shown, however, the people of Ukraine have passed the critical test of democracy, time will only tell if the leaders can continue on this path. 

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NOTE: Bohdan A. Futey is a Judge on the U.S. Court of Federal Claims in Washington, DC, appointed by President Ronald Reagan in May 1987. Judge Futey 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 Ukraine`s Constitution, adopted June 28, 1996.

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FOOTNOTES:

1           Press Release, The International Republican Institute, Ukrainian Elections Meet International Standards (March 27, 2006); Press Release, Committee of Voters of Ukraine, Voting Was Conducted Under Free and Transparent Conditions (March 27, 2006); Press Release, OSCE, Ukrainian Elections Free and Fair, Consolidating Democratic Breakthrough (March 27, 2006); Former Prime Minister Lauds Ukraine`s `First Honest Elections in 15 Years,` Voice of America, March 29, 2006.

2  People`s Authority to Amend Constitution, decision by the Constitutional Court, October 5, 2005.

3  Bohdan A. Futey, "Crisis in the Constitutional Court of Ukraine:  A Court Without Judges?" August 18, 2005.

4  Ukr. Const. Art. 147

5  Futey, "Crisis in the Constitutional Court"

6  Id.

7  Oleg Varfolomeyev, Yushchenko Challenges Constitutional Reform, Eurasia Daily Monitor, Volume 3, Issue 1, Jan. 3, 2006.

8 Law on the Constitutional Court, art. 17.

9  Ukr. Const., art. 6

10 "The procedure for the organization and operation of the Constitutional Court of Ukraine, and the procedure for its review of cases, are determined by law."  Ukr. Const., art. 153.

11 Ukrainian President Proposes Political Stabilization Plan in Speech Marking First Anniversary of His Inauguration, BBC Monitoring Service (United Kingdom), Jan. 23, 2006 at 3.

12 Press Release, The International Republican Institute, Ukrainian Elections Meet International Standards (March 27, 2006); Press Release, Committee of Voters of Ukraine, Voting Was Conducted Under Free and Transparent Conditions (March 27, 2006); Press Release, OSCE, Ukrainian Elections Free and Fair, Consolidating Democratic Breakthrough (March 27, 2006); Former Prime Minister Lauds Ukraine`s `First Honest Elections in 15 Years,` Voice of America, March 29, 2006.    In addition, the President signed a decree before the elections guaranteeing elections free from pressure by the authorities, a credo that was carried out through the election.

13 Editorial, The People`s Choice, Washington Post, July 17, 2006, at A14.

14 Bohdan A. Futey, Judicial Independence or Constitutional Crisis?: A New Challenge for Ukraine, Ukr. Weekly, June 10, 2001, at 6.

15 Venice Commission Report (Dec. 2003).

16 International Republican Institute Preliminary Statement (Nov. 22, 2004).

17 Id.  A number of legal experts and President Yushchenko have questioned the constitutionality of the amendments.  See, e.g., Serhiy Holovaty: I Believe the Political Reform Can be Abolished After the New Year, http://www.pravda.com.ua/en/news/2005/12/29/4954.htm; Ukrainian President Proposes Political Stabilization Plan in Speech Marking First Anniversary of his Inauguration, BBC Monitoring Service (UK), January 23, 2006.  However, until recently there was no quorum in the Constitutional Court and, therefore, the issue has yet to be considered.  See also, Bohdan A. Futey, Rule of Law in Ukraine: A Step Forward or Backward? 60 The Ukrainian Quarterly 57 (2004).

18 Presidential-Parliamentary Ukraine Becomes Parliamentary-Presidential Republic, Radio Free Europe/Radio Liberty, Jan. 1, 2006.

19 Id.

20 Q & A - Ukrainian Constitutional Reform, BBC Monitoring Research Service (United Kingdom), December 29, 2005 at 1.  The Ukrainian Minister of Internal Affairs, Yuriy Lutsenko, acknowledged that over 5,000 individuals were charged with election fraud stemming from the 2004 Presidential election.  Speech by Yuriy Lutsenko on February 9, 2006.

21 Id.

22 BBC News, Ukraine Leader`s Dilemma Over PM, August 2, 2006

23 Reuters, Ukraine Leader Mulling Parliament Dissolution, August 1, 2006

24 Associated Press, President Yushchenko Agrees to Nominate Arch-Rival Viktor Yanukovych to be Prime Minister, August 3, 2006.

The article was monitored by The Action Ukraine Report (AUR) Monitoring Service, Morgan Williams, Editor.

 

ANALYSIS & COMMENTARY: By Judge Bohdan A. Futey

Published by the Action Ukraine Report (AUR) #749, Article 1

Washington, D.C., Friday, August 11, 2006

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