Legal chaos in the wake of reform

Despite Ukraine`s steady progress towards democracy since it declared independence from the Soviet Union, the leadership recently took a significant step backwards, specifically in the legal area.

Ukraine`s Prime Minister Viktor Yanukovych recently visited the United States in order to strengthen ties between the two countries.  The success of his visit is still not known, but, nevertheless, the prime minister faced a political crisis and legal chaos upon his return home.

Considering the United States` concern with building strong democracies, more attention should be paid to countries like Ukraine that have free elections but are struggling with the fundamentals of democracy.

Despite Ukraine`s steady progress towards democracy since it declared independence from the Soviet Union, 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 (parliament) passed several amendments to the Constitution on Dec. 8, 2004.

These amendments were known as the political reform and became effective Jan. 1, 2006.  Although the political reform resolved the 2004 presidential election crisis, it was hastily adopted and not thoroughly thought out.

In addition, because the reform was passed as a package, the Rada deputies were either unable or unwilling to examine the effect individual provisions would have on the operation of the government.

This was all 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 Oct. 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 should be submitted to and approved by a national referendum.

For nearly 10 months after this decision, however, there was no quorum in the Constitutional Court because parliament refused to swear in the president`s and the Council of Judge`s Constitutional Court appointees and avoided electing its share of justices.

Therefore, the court was unable to consider the constitutionality of the rest of the political reform before Jan. 1, 2006, the reform`s effective date.

Many critics of the reform, including myself, agree with the Constitutional Court`s decision because it converts Ukraine from a presidential system to a parliamentary system and is, therefore, unconstitutional unless submitted to a national referendum, regardless of any other irregularities.

The reform gave the majority faction in the Verkhovna Rada the power to select a candidate for prime minister for nomination by the president as well as most other ministers, and also empowered the Rada with the right to terminate ministers.

The president may still nominate certain ministers, but, recently, the Rada dismissed the minister of foreign affairs chosen by the President even though it is unclear whether the president or the Rada has the power to remove this person from office.

On Aug. 4, 2006, parliament passed a bill prohibiting the Constitutional Court from reviewing the amendments to the Constitution passed as part of the political reform. To many people`s surprise, President Viktor Yushchenko, for one reason or another, signed the bill into law the same day.

This is clearly an attempt to prohibit the Constitutional Court from considering the constitutionality of the political reform now that a quorum exists.

It is inconceivable that reforms of such magnitude would be "immune" from constitutional scrutiny.  This was a step backwards from implementing a rule of law system and the only way to overturn the law is for at least 45 deputies to submit a challenge to the Constitutional Court.

The political reform and its aftermath have created legal chaos and forced a political confrontation. In addition, the Council of Europe criticized the reform and considers it void ab initio and the Venice Commission called the reform a step backwards for Ukraine.

Most recently, on Dec. 8, 2006, at an international forum "Law and Democracy For Ukraine" a leading group of Ukrainian lawyers and legal scholars adopted resolutions condemning the political reform and questioning its legality.

Simply implementing the political reform has been a source of great confusion and strife in the Ukrainian government.

There was a great deal of disagreement following the March 2006 elections regarding the effect of the reform, particularly as to what the president`s powers were in nominating the prime minister. Additional problems have come up since the coalition government was formed.

As mentioned above, the Rada fired the minister of foreign affairs, even though many legal scholars declared it did not have that power.

The president has the power to nominate the minister of foreign affairs and the minister of defense in line with his responsibilities for foreign policy and national defense as the commander-in-chief.

Therefore, according to Ivan Tymchenko, the former Chief Justice of the Constitutional Court, it seems apparent that the Rada may only request that the president dismiss these ministers, but that the decision is ultimately up to the president.

The Rada chose to ignore the president`s foreign policy powers and, instead, dismissed the minister of foreign affairs.

Currently, the friction within the executive branch between the president and ihis secretariat on one hand and the prime minister and the Cabinet of Ministers on the other hand is extremely high because there are disputes over who holds authority within the executive branch.

A political solution would be for all the parties to reach an agreement on the ultimate intention of the political reform and determine its proper meaning, which could then be voted on by the Rada in accordance with the Constitution and submitted to a national referendum.

The legal resolution to the confusion created by the political reform is in the hands of the Constitutional Court.

[1] First, the court would have to consider the constitutionality of the law preventing the reform from being reviewed by the Constitutional Court, as adopted by the Rada on Aug. 4, 2006.  Once this has been decided, the court will have to [2] review the political reform and render a decision.

Regardless of which method is used, political or legal, there must be a resolution to this political crisis because, unless it is solved the legal chaos will continue.

It is in the interest of the president, the prime minister, the Rada Speaker, and, most of all, the Ukrainian people that the situation be settled before Ukraine stumbles any further back.

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.

ANALYSIS & COMMENTARY: Judge Bohdan A. Futey

Kyiv Post, Kyiv, Ukraine, Wednesday, Jan 17 2007

This article was monitored by the ArtUkraine Monitoring Service for the Action Ukraine Report, E.Morgan Williams, the editor.

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