By Judge Bohdan A. Futey
"UKRAINE REPORT-2004," Number 6
Washington, D.C., Tuesday, January 13, 2004
EDITOR'S NOTE: The following is an article by Judge Bohdan A. Futey on
the recent decision by Ukraine's Constitutional Court to allow President
Leonid Kuchma to run for a third term.
Judge Futey is a federal judge on the US Court of Federal Claims and has
been active in Rule of Law and Democratization programs in Ukraine since
1991. He served as an advisor to the Working Group on Ukraine's
Constitution, adopted on June 28, 1996.
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." The
Court's mandate entails providing "the official interpretation of the
Constitution of Ukraine and the laws of Ukraine." 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."
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. Initially, the Constitutional Court lived up to
the great challenge it had undertaken. In "Re Residents of City of Zhovti
Vody," 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. 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."
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. 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.' " 
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
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
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."
 Constitution of Ukraine Chapter XII, Article 147.
 Article 150.
 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) (establishing the doctrine of judicial review).
 Visnyk Konstytutsiinoho Sudu Ukrainy 1 (1998):34.
 “Re K.H. Ustymenko,” Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1997):31.
 This decision is similar to that reached by the United States Supreme Court in Baker v. Carr, 369 U.S. 186 (1962).
 “Re Dual Mandates of Verkhovna Rada Deputies,” Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1997):5.
 1994 Law on Elections of the President, Article 2, Section 2 (emphasis added).
CLICK HERE TO DOWNLOAD THE UKRAINIAN VERSION OF THE ARTICLE
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:
"UKRAINE REPORT-2004," No. 6, TUESDAY, JANUARY 13, 2004
ONE ARTICLE BY JUDGE BOHDAN A. FUTEY
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