Comments by Judge Bohdan A. Futey
June 29, 2010
Embassy of Ukraine, Washington, D.C.

It is an honor for me to be part of this program on the occasion of the 14th Anniversary of Ukraine’s Constitution. Before I begin, allow me to call your attention to a very significant historic fact. This year Ukraine also celebrates 300 years of Pylyp Orlyk’s Constitution. It was adopted in 1710 in the city of Bendery, almost 80 years earlier than the Constitution of the United States. This Basic Law embodied the principle of separation of powers, a separate judicial tribunal, and the concept of private ownership of property. I hope that Ukraine will mark this historic document with proper conferences and celebrations.

Since 1992 two Commissions worked on the present Constitution, one led by President Kravchuk and the other by President Kuchma. To assist the Commission in its task there was also a working group chaired by Professor Leonid Yuskow, of which I was a member. The Ukrainian Legal Foundation, International Foundation of Election Systems (IFES), and the World Congress of Ukrainian Lawyers also assisted with conferences and analysis of various drafts.  A special conference was also held in Huta, Ivano-Frankivsk, on January 12-13, 1996.

Adoption of the Constitution
In an overnight session from June 27-28, 1996, the Rada debated and eventually passed the Constitution. The movement to pass the constitution was led by deputies Moroz, Syrota, Holovatyi, Stretovych, and Yemets. With the adoption of its Constitution on June 28, 1996, Ukraine took 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.  As for example the vote for Ukrainian to be the State Language, and keeping the name of Autonomous Republic of Crimea.

Constitutional Provisions
1.  Constitution Commended:  The Constitution addressed the concerns of Ukrainians about their national interests, the establishment of their statehood, as well as the suppression of rights by the Soviet Union and, at the same time, what kind of social changes a democratic future would bring.  The Constitution was commended by a number of international organizations including the Venice Commission, particularly for its guarantee of many human rights.   

2.  Negative and Positive Rights:  In articulating individual rights, the Constitution includes both negative and positive rights.  Negative rights protect against government interference by limiting the role of government.  They establish basic private rights and personal freedoms, such as freedom of speech, press, religion, and assembly.  Negative rights are enforceable under the rule of law.  A court may declare a policy or enactment of the government improper or illegal.  Positive rights require the government to do something for the benefit of the individual.  They include the right to a job, the right to housing, and the right to "satisfactory living standards." They are, however, very difficult to enforce without further legislation.  Many critics believe, therefore, that these rights should be placed in the Preamble.  Attempts to adopt legislation that enforce these positive rights have been difficult to pass.  Often, legislation based on these positive rights clash with negative rights guaranteed by the Constitution and, occasionally, with other codes already adopted.  Another drawback is that the Constitution leaves the explanation of the rights to further legislation, which has not taken place.  One example is the right to a jury trial.  This right is guaranteed by the Constitution and the Law on the Judiciary, subject to procedural codes.  A number of procedural codes have been adopted but do not have any provisions for jury trials.
Clearly, even after fourteen years, Ukraine’s Constitution must remain a work in progress.       

3.  Separation of Powers: Article 6 provides for the separation of powers, splitting the government into three branches: Executive, Legislative, and Judicial. The concept of checks and balances, however, has not been established in practice.

4.  Rule of Law: Article 8 declares that the rule of law is recognized and effective.  The rule of law is the lynchpin to promote democracy throughout the world.

5.  Private Ownership of Property: The concept of a market economy has been greatly enhanced in Ukraine by the guarantees of private ownership of property.

6.  Free Speech and Press:  During the past administration, the press has freely commented on members of the President’s family’s, Secretariat’s and Cabinet Ministers’ lavish living.  Many reports have been made on events that would not have come to light in previous administrations. Recently, however, the visit of the SBU to the President of the Catholic University in Lviv, the cancellation of airways (allocation of TV broadcast frequencies) to Chanel 5 and TVi, together with attempts to pass a new law by the Rada to restrict protests and the right of assembly has put these rights in jeopardy.

7.  Free Elections:  The right to vote, which is guaranteed by the Constitution, has been increasingly well enforced, particularly following the Orange Revolution.

Constitutional Court
1.  Law Adopted October 16, 1996
2.  Positive decisions:
a.  In re Residents of the City of Zhovti Vody (1998):  Citizens have access to the courts for protection of rights
b.  In re K.H. Ustymenko (1997):  Article 32 of the Constitution guarantees the right to obtain information about oneself.
c.  In re Dual Mandates of Verkhovna Rada Deputies (1997):  Constitutional Court found that National Deputies elected after June 8, 1995 may not hold two state positions simultaneously.
d.  In re Law on Election of Deputies to the Verkhovna Rada of Ukraine (1998):   Constitutional Court found that the threshold issue, the 3% barrier to gaining seats in the Rada, was an expression of the will of the legislature and, as an issue for the Verkhovna Rada to decide, was a political issue beyond the jurisdiction of the Court.
3.  Negative decisions:
a.  Allowing for the Election of the President by Parliament (2003).
b.  Allowing the President to be reelected for a third term (2003).
c.  The April 8, 2010 decision of the Constitutional Court of Ukraine raised again the issue of judicial independence.  I will not dwell on the Court’s decision, because in my opinion, the Constitutional Court has the authority to render a decision that the majority of judges agrees upon.  Nevertheless, such a decision, disregarding the Constitution and the laws, has its consequences; it undermines the rule of law and the separation of powers.  Ukraine’s Constitution is very clear on this subject; that a majority in the Rada can only be formed by factions, not by individual defecting deputies, and yet the present coalition of the new government came about as result of individuals switching sides.  The recent decision is a reversal of a previous decision of September 17, 2008, just over one and half years ago dealing with the same subject matter.  Legally nothing has changed except for the change in the government.
4.  Constitutional Court Crisis:  For nearly ten months (October, 2005 – August, 2006) there was no quorum in the Constitutional Court because Parliament refused to swear in Constitutional Court appointees and avoided electing its share of justices.  This was politically motivated and constituted malfeasance, or, at the very least, nonfeasance.
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.  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).

Political Reform
1.  Adoption:  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.
2.  Not Well Thought Out:  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.
3.  Not Constitutional: 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, in addition, to the requirements in the amendments section of the Constitution, must be submitted to and approved by a national referendum.   Many critics of the reform, including myself, 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, notwithstanding any other provisions.  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.
4.  New Law:  On August 4, 2006, 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.  President Yushchenko’s decision to sign such law is difficult to comprehend and explain.
a.  This law is obviously unconstitutional itself.
i.  Violates Article 8 (guaranteeing individuals the right to appeal issues of constitutional rights and freedoms).
ii.  Violates Article 147 (Constitutional Court has jurisdiction over all “issues of conformity of laws” with the Constitution)
iii.  Violates Article 150 (Rada deputies’ right to bring an appeal)
b.  Political Reform Needs to Be Interpreted:  There was a great deal of confusion and disagreement particularly concerning the division of powers between the President and the Prime Minister.  This disagreement led to all the conflicts in the previous administration.

Judicial Reform
1.  Concept Paper:  On March 22, 2006, the National Committee to strengthen democracy and the rule of law in Ukraine adopted a new Concept Paper for the judiciary in Ukraine.
a.  Aim: 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.
b.  Suggests Control Over Judiciary: This Concept was 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 failed to address the problem of reforming the judiciary in-depth, and provided for additional ways to exercise control over the judiciary.  This Concept, however, was never adopted into law by the Rada.
2.  Judicial Independence:  President Yanukovych, now, is also attempting to reform the judiciary.  The new concept on the judicial system and the status of judges under the direction of the Minister of Justice was supported recently by the Rada during its first reading.

The new draft foresees the creation of two additional Higher Specialized Courts to consider civil and criminal cases.  The jurisdiction of the Supreme Court will be relegated to review cases related to unequal applications of standards by lower courts.  The number of these judges will be considerably reduced.  This would mean that appeals on questions of fact and law (cassation) will be removed from the jurisdiction of the Supreme Court.  It will present another constitutional challenge.  The Supreme Court is the highest court of courts of general jurisdiction. Article 125.

Also, the new law would give the president the power to create and liquidate courts.  Now, according to Article 106 (23) of the Constitution, the President may only create new courts.  This would mean another violation of the present Constitution.
Furthermore, additional authority is being given to the Higher Council of Justice.  This could have significant political implications.

There is no question 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. Therefore, the State Judiciary Administration should be placed within the judiciary branch of power and not as part of the executive.  Provide adequate salaries for judges, insuring appropriate funding and assistance for the courts, prompt publication and availability of judicial decisions, transparency in decision making, and enforcement of judicial decisions, these are measures and 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 with just one party in the proceedings.  This practice should be eliminated completely.  Judicial independence does not mean the judges do as they choose, but do as 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.

Constitutional Reform
On December 27, 2007, President Yushchenko issued a decree setting up the National Constitutional Council, of which he was the head, and authorized the Council to draft a new constitution for Ukraine.  The President proposed to draft an entirely new constitution because “the current Constitution is too imperfect to be amended.”  At the first meeting on February 20, 2008, President Yushchenko told the Council that their suggestions would be put to public discussion, a vote in Parliament and a referendum.  The President stated further, however, that if the members of Parliament failed to cooperate, he would bypass Parliament and submit the new constitution to a national referendum, so that it would be adopted “at the initiative of the people”.

President Yushchenko’s statement that he was willing to bypass the Rada, however, was particularly troubling.  The implementation of any amendment to the Constitution clearly requires parliamentary approval.  There was great concern that the President’s advisors were not providing him with the best counsel.  It is most important that the advisors to the President operate as “honest brokers”.  If the President were to merely present a new constitution to a national referendum without the approval of the Rada, the adoption of that constitution would be contrary to the present Basic Law.

Another constitutional challenge under the present government of President Viktor Yanukovych is the Kharkiv Agreement of April 21, 2010, between Ukraine and Russia concerning leaving the Russian fleet in Sevastopol, Crimea for an additional twenty-five years.  The claim is that it is unconstitutional and is in violation of Article 17 of the Constitution, which prohibits stationing of foreign bases in Ukraine.

It is imperative at this point in time, as Ukraine struggles to establish itself as a democracy, that the introduction of a new constitution comply with these legal requirements.  The restrictions of the current Constitution are in place to ensure that the Executive does not exert unchecked authority, as the President would be doing were he to bypass parliamentary approval.  It is exactly when such actions are threatened that the Rule of Law must prevail: respect for and compliance with the law is absolutely critical to the promotion of democracy.

Conclusion
The rule of law is the lynchpin to promote democracy throughout the world.  First, the law must be supreme.  Each person, whether a private individual or a government official, is subject to the law, and no special status can prevent the application of law.  Second, the law must be centered upon a concept of justice that emphasizes interpersonal adjudication.  Not only must the substance of the law be the same for everyone, but the procedures by which law is carried out must be the same.  A political system based on the separation of powers with appropriate checks and balances is vital to the preservation of democracy.  The aim of a judiciary and, more broadly, of a government, is to provide stability through the consistent application of the law and adherence to the Constitution.  The separation of powers concept is an especially effective way to do this, since it sets up a system of balances under which the different branches watch each other and keep each other in check.

A strong, independent judiciary is one of the most important ways to separate power and uphold the rule of law.  Three aspects of an independent judiciary are relevant to its success in upholding the law: procedures to enable independence; treatment of the judiciary as an independent body; and judicial conduct that accords with and bolsters its independence.

The first aspect, procedures for independence, requires that judges be granted protections to ensure their ability to remain independent.   Second, the judiciary must act as and be treated as an independent branch of the government.  Judges will not be respected until they respect themselves enough to act with the courage and conscience required of an independent judiciary.  Third, the judiciary must act as an independent body that impartially applies the law.  Judges must decide matters before them impartially, on the basis of facts and the law, without any restrictions, improper influences, inducements, or threats, direct or indirect, from any party or institution for any reason. 

Ukraine declared its independence from the Soviet Union on August 24, 1991.  Since then, it has continuously used elections and compromise instead of violence resolve conflicts and to shape itself as a nation.  The Orange Revolution of November 2004 saw Ukrainian citizens peacefully demanding that their votes be counted and succeeded.  As the success of the Orange Revolution has shown, the people of Ukraine have passed this critical test of democracy. Time will only tell if the leaders of the country can continue on this path.

On July 7, 2010 the Rada adopted it into law on its second reading. As of July 15, 2010 the legislation is still awaiting the President’s signature.

Source: e-POSHTA/e-ПОШТА July 23 липня 2010 Vol.11 No. 15