By Judge Bohdan A. Futey
"UKRAINE REPORT-2004," Number 6
Washington, D.C., Tuesday, January 13, 2004

As we enter the year 2004, Ukraine stands at the crossroads of either integration and acceptance into the European and International Communities, or 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 through the attention that has been given to the recent decisions of the Constitutional Court of Ukraine and to the recent events which transpired in the Verkhovna Rada (Parliament).

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 Marshall did in the United States in "Marbury v. Madison" two hundred 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 four 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 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 leads to the conclusion that the constitutional norm in place at the time President Kuchma was elected should be enforced. The Constitution adopted in 1996 and prior legislation addressing presidential term limits have consistently limited the President to two terms: 1978 Constitution of Ukraine SSR; 1991 Law on the President; 1994 Law on Election of the President; and 1995 Constitutional Agreement, which was reached between the Parliament and President Kuchma, and signed by President Kuchma. For instance, the 1994 Law on Elections 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 reelection 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 evenhanded 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 which 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 towards 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."

EDITOR'S NOTE: Judge Bohdan A. Futey also wrote an article on December 19, 2003 entitled "Some Comments on the Recent Attempts to Amend the Constitution of Ukraine." The article was about the decision of the Constitutional Court concerning the right of the Parliament to change the constitution regarding the way the president of Ukraine is elected. To read this article by Judge Bohdan A. Futey click on:

http://www.artukraine.com/events/futey2.htm