Верховенство права і Конституційна реформа сьогодні в Україні Достойний д-р Богдан Футей Федеральний Суддя США

June 5, 2004

Достойний Богдан Футей – Федеральний Суддя США, доктор юриспунденції, почесний доктор і професор УВУ, Прикарпатського університету ім. В.Федьковича, радник Верховної Ради України, радник робочої групи Конституційної Комісії України, автор багаточисельних статтей з юридичних та правових тем, а також монографії “Становлення правової Держави в Україні 1991-2001 рр. “.

Богдан Футей

Під час доповіді

Сергій Погорельцев, Генеральний консул України в Нью-Йорку та Богдан Футей, Федеральний Суддя США

Rule of Law in Ukraine: A Step Forward or Backward?
By Judge Bohdan A. Futey

As we reflect on the events of 2003 and apprehensively ponder the possibilities of 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. The manner in which Ukraine has undertaken, and will undertake, resolution of critical legal and political issues, will decisively entrench its ascent or descent from the current position which it occupies. Ukraine must make great efforts to be cognizant of these repercussions, for during a presidential election year, its approach will not go unnoticed, and every legal and political maneuver will be highly scrutinized. Nowhere is this more evident than through the attention which has been given to the recent decisions of the Constitutional Court of Ukraine, to the recent events which transpired in the Verkhovna Rada (Parliament), and to the election adjudication controversy which could indefinitely entangle the election of the President in legal proceedings and undermine its legitimacy.

With the adoption of its Constitution on June 28, 1996, Ukraine took a 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 adoption of the Constitution represented the end of one period in Ukraine’s constitutional development process and it also marked the beginning of a second period, one where Aenabling legislation was to implement the rights guaranteed by the Constitution. The enabling legislation corresponding to these rights would determine the quality and character of this Constitution not only as the supreme law of Ukraine but also as the documentary guarantor of the basic rights for all Ukrainians.

To ensure that the Constitution and its enabling legislation do not attain the characterization of Apaper tigers, the importance of enforcing judicial decisions cannot be overstated; it goes part and parcel with the establishment of a credible, respected and independent judiciary. Nearly all governments enforce the decisions of their judicial systems. In the United States, the judiciary depends upon the executive branch to enforce court decisions. The strongest argument, however, in favor of enforcing judicial decisions in an emerging market economy such as Ukraine is economic. Putting aside the moral implications of failing to enforce judicial decisions, domestic and foreign investors would be rightfully hesitant to engage in financial transactions in a country that failed to adequately protect an investor’s rights. This hesitancy could have disastrous effects. Therefore, it is imperative that Ukraine enforce its decisions, and enable the courts to provide needed stability in commercial transactions by assuring domestic and foreign investors that judicial decisions will be enforced.

The beneficial affects of enforcing judicial decisions are for all practical purposes eviscerated unless the underlying decisions are perceived to be the product of an objective and impartial judiciary. 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 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 the even-handed application of justice in accordance with constitutional safeguards.

Unfortunately, such concerns are not unfounded; and, the Constitutional Court of Ukraine lies at the center of this controversy. The Constitutional Court derives its powers from Chapter XII of the Constitution of Ukraine, which explicitly designates the Constitutional Court as Athe sole body of constitutional jurisdiction in Ukraine. The Court’s mandate entails providing Athe 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. Further, as provided in Chapter XIII, Article 159, the Court maintains a significant role in the amendment process: A[a] draft law on introducing amendments to the [Constitution] is considered by the [Verkhovna Rada] upon the availability of an opinion of the [Constitutional Court] on the conformity of the draft law with the requirements of Article 157 and 158 of this Constitution.

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 had 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 ARe 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 ARe 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 Apolitical question.

Most pertinent to the present controversy is the case ARe 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.

Beginning in November 2003, however, the Constitutional Court departed from the legitimacy and logical consistency which had permeated its early decisions. The Constitutional Court issued two vastly criticized decisions regarding the conformity of proposed changes to the manner in which the President is elected and the duration of his initial term (registration No. 4105 and 4180), with provisions of Articles 157 and 158.

Both draft laws No. 4105 and No. 4180 proposed that the President be elected by the Parliament instead of direct election by the people as provided by the current version of Article 103. The drafts, however, differed in their suggested effective date and implementation. Draft No. 4105 suggested that the people directly elect the President in October 2004 as per the present Constitution. The President would serve until a new President is elected by the Parliament Awithin a month after the day of the opening of the first meeting of the [Parliament] elected in 2006. On the other hand, Draft No. 4180 proposed that the Parliament elect the President in October 2004 for three years. Parliament=s term would then be extended by an additional year, and the new President would be elected again by the Parliament Awithin a month after the day of the opening of the first meeting of the [Parliament] elected in 2007. The President and the Parliament would then serve complete five-year terms.

When analyzing the proposed changes to the Constitution, the Court held that the proposals complied with Articles 157 and 158. Specifically, the Court reasoned that Athe change of the procedure of presidential election suggested in the Bill is not aimed at the abolition or restriction of human and citizens= rights and freedoms. Relying on paragraph 2 of Article 5, the Court also reasoned that the people exercise their power through both direct and indirect forms of democracy.

It is noteworthy that the Court relied only on Article 5 to support its position that the President can be elected by the Parliament because the people can Aexercise power directly and through bodies of state power and bodies of local self-government. The Court appears to have reasoned that the rights of the people were not being abridged because the Constitution provided for indirect exercise of power along with direct forms of democracy. The Court’s failure to consider equally applicable provisions of the Constitution, specifically the limitations in Articles 69, 103, and 104, led to its skewed resolution of this matter.

The current version of Article 103 provides, inter alia, that A[t]he President of Ukraine is elected by the citizens of Ukraine for a five-year term, on the basis of universal, equal and direct suffrage, by secret ballot. Article 104, which was not mentioned in the Court’s majority opinion, expressly provides that the President shall take an oath affirming that he was Aelected by the will of the people . . . Reference to this constitutional provision, however, was made in Judge Skomorokha’s dissenting opinion. Article 69 states that A[t]he expression of the will of the people is exercised through elections, referendum, and other forms of direct democracy. Article 5 does not make any reference to the Awill of the people . . . It, therefore, cannot be disputed that the Awill of the people is defined in Article 69, and not Article 5. If the authors of the Constitution had intended that the President be elected through any exercise of the Apower of the people, they could have explicitly provided for that in Article 104. They did not do so. Accordingly, the authors of the Constitution intended that the President be elected by the Awill of the people.

Further, by holding that it was constitutionally permissible for the Verkhovna Rada to elect the President, the Constitutional Court deprived the citizens of Ukraine the right to exercise their will through Adirect democracy. Article 69 provides that the Awill of the people [may be] exercised through elections [and] referendum[s] . . . It is not just any Aelection, however, which will satisfy Article 69’s requirements. It is a basic tenet of statutory construction that the court’s role is to give meaning to every word and phrase. The final clause of Article 69 limits the Awill of the people to Aforms of direct democracy. Whether it be through Aelections, referendum, or other forms of direct democracy, the import of Article 69 is clear; the Awill of the people can only be exercised through a Aform of direct democracy. The election of the President by the Verkhovna Rada is not a form of direct democracy, and, therefore, unmistakably violates Article 69.

While at first glance it may appear that any violation of Article 69 could simply be redressed through additional amendments, a significant problem arises. Article 69 falls under AChapter III – Elections. Referendum. According to Article 156, any amendment to an article under Chapter III, must be approved by Aan All-Ukrainian referendum . . . The regular procedures set forth in Article 155 for amending the Constitution are, therefore, inapplicable. In this respect, one cannot ignore that A[t]he right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials. The authors of the Constitution perceived the direct expression of the will of the people as such a fundamental right that it could not be taken away from the citizens without their explicit approval.

All the above-mentioned constitutional limitations preclude the election of the President by means other than direct election by the people, be it in 2004, 2006, or 2007. An additional problem, however, is posed by draft law No. 4180, which would lead to a self-extension of the current Parliament’s term until 2007. As discussed in Judge Shapoval’s and Judge Vozniuk’s dissenting opinions, an extension of the Parliament’s current term would violate Articles 38, 69, 70, 71, and 83.

On December 30, 2003, the Constitutional Court’s transgression continued and attracted additional international attention when it issued its decision holding that it was constitutionally permissible for President Kuchma to run for a third presidential term. With the principles enunciated in Chapter XII of the Constitution in mind, as well as Court’s decision in ARe 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 Courts 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 decisio
n 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 Athird 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 as adopted in 1996 and prior legislation addressing presidential term limits have consistently limited the President to two terms: 1978 Constitution of Ukrainian SSR as amended on July 5, 1991 (Article 114/2); 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 President Kuchma.

Putting the Constitutional Court’s decisions aside momentarily, another area of concern deserves immediate attention – adjudication of election law disputes. The Verkhovna Rada adopted a new election law for Rada deputies on September 24, 1997, and elections were conducted under this law on March 29, 1998. The law set forth both legal and administrative remedies for the resolution of electoral disputes. The right to file an action in the courts is clearly set forth in Article 15 of the law, and reflects a desire on the part of the Verkhovna Rada that such disputes should ultimately be resolved in the courts of law. This is consistent with the general principles of Ukraine’s Constitution.

In practice, however, the manner in which the courts have addressed such disputes only highlights the weaknesses inherent in Ukraine’s current system of Courts of General Jurisdiction. First, although the Constitutional Court considered the constitutionality of the new election law and upheld many of its provisions, the Court held that a number of provisions of the law were not in compliance with the Constitution, including the provisions as to the resolution of electoral-related disputes by the administrative process. The Court explained that the right to file a claim in court is guaranteed by the Constitution.

In addition, during Parliamentary elections of 1998 and 2002, the Law on Elections of deputies allowed candidates to challenged the election procedure and election results. As a result, the courts were overloaded with disputes. In 1998, the Courts of Ukraine of all levels reviewed 162 disputes by participants in the election process, while in 2002 the courts reviewed more than 500 disputes. Adjudication of these disputes revealed the shortcomings of the system.

The courts= resolution of the enormous number of election disputes was characterized by inconsistent rulings and failure to take jurisdiction, as well as the improper taking of jurisdiction, among courts of first instance, as well as reviewing courts, and contributed to confusion among the courts, parties and the public. In fact, some cases were heard in seemingly improper venues. That is, they were heard in courts outside of the geographic area in which the alleged acts took place. For example, in 1998, the election of the mayor of the City of Odesa was challenged in the City of Kirovohrad, which is in a different oblast. The Kirovohrad Court invalidated the election. Likewise, a court in the city of Lviv recently invalidated the June 29, 2003 election of the mayor in the City of Mukachevo; again, a city in a different oblast. It appears that someone in these instances selected a forum that would most likely produce the results he/she was seeking.

In some cases, courts also voided election results when there was apparently insufficient evidence that alleged wrongdoing would have affected the outcome of the elections, which is the standard set forth for voiding elections under the election law. Conflicting news accounts of court decisions, coupled with the lack of published written opinions by Courts of General Jurisdiction, have only added to the confusion, and have prevented an accurate summary of the process in general.

As a critical presidential election approaches, it is worthwhile to examine the specialized administrative courts created by the Constitution and as implemented by the Law on the Judiciary, adopted in February 2002, to adjudicate election disputes. The court will consist of approximately sixty judges. As of December 2003, however, only nine judges have been voted on by the Verkhovna Rada. In addition, the procedural rules for filing and maintaining a cause of action have not been put into place. Given the magnitude of the work which remains to be completed prior to the specialized court being considered a fully functional tribunal, one cannot help wonder whether the court will be operational in time to deal with any disputes which may stem from the upcoming presidential election.

The importance of resolving the above-mentioned electoral issues stems from the fact that the right to vote in a democratic society is one of the most precious of all individual rights. The United States Supreme Court has endorsed this proposition: ANo right is more precious in a free country than that of having a choice in the election of those who make the laws under which as good citizens they must live. Voters trust and confidence are of great significance. If citizens cannot be assured of a fair and honest election process, they will have no faith in other components of the political process. Social stability rests on the individual’s confidence in the electoral process to function correctly in every respect. Courts must ensure that the process is implemented in a proper way and must guarantee fair elections.

Under the theory of Separation of Powers (Article 6), any default on the part of the Judiciary would ideally be counterbalanced by an effective and independent Legislative branch. Recent events cast doubt on whether Parliament is capable of fulfilling that role. As the end of the last session of Verkhovna Rada neared, there was an impending and open sense of urgency for those seeking to amend the Constitution, so that the amendments would be in effect for the next presidential elections scheduled for October 2004. The current procedure for amending the Constitution requires that the amendments first be approved by a Amajority of the constitutional composition of the Verkhovna Rada of Ukraine and then by Ano less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine at its next regular session. Therefore, if the Parliament did not vote on these so-called amendments prior to its recess, these amendments could not constitutiona
lly apply to the October 2004 elections.

The procedures set forth in the Constitution cannot be cast aside lightly, and must gain increased importance during a period where usurpation of power seems imminent. The leadership of the Verkhovna Rada, however, was determined to vote on the amendments; ultimately, such tactics resulted in the utilization of a crude Ahand vote. All aspects of that incident remain heavily contested. In addition, any suggestion that the proposed amendments could pass with the support of a mere simple majority of the Verkhovna Rada is belied by the express language of Article 155.

Moreover, it appears that rushed political reforms have distracted the Verkhovna Rada 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, as was discussed above, 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 Verkhovna Rada has given some indication that it is capable of fulfilling its obligations as an independent branch of government. On February 3, 2004, the Verkhovna Rada voted to remove the provisions pertaining to the election of the President by Parliament, and provisions reducing the term of judges from life appointments to a ten-year term, from the text of the draft laws.

It is important to note this subtle distinction, however, that such reform is not per se unconstitutional. The constitutionality of the proposed amendments is a matter separate and distinct from the implementation of a process which should occur before such reform is instituted. It is imperative that extensive discussions and debates be undertaken by those knowledgeable in such affairs to ensure that the reforms are necessary and beneficial to advancing democratic ideals. Any reform, constitutional or political, that is placed on an expedited schedule and is coerced through under the pressure of time constraints does not allow for a thorough ventilation of pertinent issues and concerns.

In conclusion, it should also be noted that the proposed amendments have not been viewed favorably by the international community. For instance, in early December 2003, the Venice Commission in its opinion on the proposals stated:

The Commission [recognizes] and welcomes the efforts in Ukraine to reform the system of government in a way bringing Ukraine closer to European democratic standards. The precise solutions chosen in the various drafts however do not yet seem to have attained that aim and would introduce other amendments to the Constitution that would appear to be a step backwards.

A member of the committee also warned: AA society where rights are not secured and the separation of powers [not] established has no constitution at all. Similar sentiments and criticisms were reflected in the January 27, 2004, Council of Europe, Parliamentary Assembly, Report: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee).

The international outcry, in and of itself, raises serious concerns about the progress of the Rule of Law and democratization in Ukraine. Although constitutional reform may indeed at some point be beneficial, the timing of the proposed constitutional changes, on the eve of presidential elections, is troubling and adds to the severity of the situation. The problem has been further compounded by the Constitutional Court’s failure to assert its independence and failure to render impartial decisions. Officials at the highest levels of government have commented on the arbitrariness of the Constitutional Court=s decisions. In addition, the recent electoral debacle in Mukachevo received heavy criticism and has been viewed as a presage of things to come in the upcoming October 2004 presidential elections. It is apparent that these external manifestations of questionable conduct stem from a pervasive failure to recognize that the Rule of Law must stand above political motivations.

The actions of those responsible for creating the underlying tensions, however, have fortunately not yet led to irreversible consequences. The provisions of the proposed constitutional amendments which limited judicial terms to ten years and which placed the election of the President in the hands of the Verkhovna Rada were removed from consideration. On April 8, 2004, the proponents of the constitutional amendments which would have stripped the president of most of his meaningful powers ran squarely into the thrust of constitutional safeguards when they were unable to muster the requisite 300 votes. In this regard, reports have circulated that 50 members of Parliament have petitioned the Constitutional Court to allow an immediate second vote on the proposed constitutional amendments. The Constitutional Court, however, needs to regain its bearings and recognize that such a vote is precluded by Article 158 of the Constitution of Ukraine. Lastly, with a full half year still remaining before the October 31, 2004 presidential elections, appropriate precautions can be put in place to prevent an escalation of the hooliganism and fraud that occurred in Mukachevo to a national level, and ensure that Mukachevo is viewed as an aberrant and isolated incident. The President’s commencement of an investigation into the occurrences at Mukachevo is certainly a step in the right direction, but by no means should it be the only step.

There are visible signs that preliminary measures are being implemented and that some semblance of order and stability remains in tact. The upcoming year, however, will truly 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 Astep 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. Ukraine=s future depends on an independent judiciary. Whether the focus ultimately lands on the Constitutional Court or the Courts of General Jurisdiction under the Supreme Court, the crucial legal issues and reforms currently pending must be settled way ahead of the October 31, 2004 presidential election, or 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 Astep forward.

April 29, 2004

[Judge Futey serves on the U.S. Court of Federal Claims in Washington, DC and 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.]

By Dr. Orest Popovych

NEW YORK – In 2004 Ukraine faces the choice of either embracing the European and international standards of democracy, or reverting to a system where the rule of law is applied selectively for the benefit of those in power. This was the gist of the introduction by Judge Bohdan A. Futey to his lecture titled “The Rule of Law and Constitutional Reform in Ukraine Today” at the Shevchenko Scientific Society
(NTSh) building on June 5.

The program was opened by NTSh president Dr. Larissa Zaleska Onyshkevych, who welcomed not only the speaker, but also the Honorable Serhiy Pohoreltsev, Ukraine’s Consul General in New York. Next, the speaker’s professional accomplishments were summarized by Prof. Vasyl Makhno, who chaired the program.

Dr. Futey, a judge of the U.S. Court of Federal Claims in Washington, is also a legal scholar who has lectured as a visiting professor at the Ukrainian Free University in Munich and the University of Passau (both in Germany) as well as at several universities in Ukraine. In addition to numerous articles in the area of jurisprudence, Dr. Futey has authored the monograph “Establishing the Rule of Law: Ukraine 1991-2001”, published in Kyiv in 2001 (in Ukrainian). As a counselor to both the Verkhovna Rada (Parliament) of Ukraine and the Working Group which prepared Ukraine’s Constitution (adopted on June 28, 1996), Judge Futey has become intimately familiar with the legal and political realities that govern Ukraine.

The speaker focused on three legal problems in Ukraine that have elicited critical comments and disapproval of the international community: 1. The decision by the Constitutional Court of Ukraine to permit President Kuchma to run as a presidential candidate for the third time. 2. The proposal to have Ukraine’s president elected by the Verkhovna Rada. 3. The irregularities involved in the recent mayoral election in Mukachiv.

In the center of the legal controversies, said Dr. Futey, stands the Constitutional Court of Ukraine, which is the sole body of constitutional jurisdiction and whose decisions are final. Indeed, as the sole interpreter of the constitutionality of the laws, the Court has had the historic opportunity to shape the legal system of Ukraine. Unfortunately, after some excellent initial decisions at the start of its tenure, the Court applied flawed logic, according to Dr. Futey, in its decision to permit President Kuchma to seek a third term.

In 1994, at the time Leonid Kuchma was first elected President of Ukraine, there existed a law specifying that a person cannot be elected president for more than two terms; subsequently, this limitation was incorporated in the Constitution, which was adopted in 1996. The Court’s argument that President Kuchma was elected only once since 1996 (in 1999) and was therefore eligible now for a “second” term ignored the 1994 election law, thus violating the precedent where the Court, in other cases, had honored the relevant existing laws that preceded the Constitution.

Another unconstitutional development, according to Judge Futey, was the attempt by the Verkhovna Rada (Parliament) to change the election law so that Ukraine’s president would be elected by the Parliament. This would violate the Constitution, which mandates that a president be elected only by a direct popular vote. Furthermore, any amendments to the Constitution require an all-Ukrainian referendum, not just a vote in the Verkhovna Rada. In a democratic society the right to vote is one of the most important human rights, reminded us Dr. Futey.

A third legal problem plaguing Ukraine is the election disputes that have mushroomed throughout the country in disproportionate numbers. A lack of consistency in terms of jurisdiction and venue are part of the problem, causing much confusion. For example, the recent much publicized election dispute in Mukachiv was referred for adjudication to a court in Lviv, which is in a different region. Similarly, an election dispute in Odesa was resolved by a court in Kirovohrad. For the upcoming presidential election a court is needed to guarantee the proper functioning of the electoral process, so as to ensure social stability, but such a court is still waiting to be established.

Not all the flaws in the legal system of Ukraine are the fault of the Judiciary, continued Dr. Futey. The Legislative branch – the Verkhovna Rada – has yet to enact the Civil Procedural Code, the Criminal Procedural Code and other procedural codes; to remove the contradictions between the Commercial and Civil Codes and to implement the Trial by Jury, as guaranteed by the Constitution. Furthermore, the Executive has yet to provide a mechanism for the enforcement of judicial decisions.

The future of the rule of law in Ukraine depends primarily on the extent to which Ukraine’s Judiciary can become independent of the other branches of power, which has not yet happened, said Judge Futey. In order to fulfill their constitutional obligations, the judges must be independent of the Executive in terms of their material needs as well as psychologically, and they could use a healthy dose of self-respect. Once the judges feel that they can apply their rulings consistently and evenhandedly, according to the Constitution and other laws, independent of political pressures, Ukraine’s legal system will gain the respect and confidence of both the domestic and international community, opined Dr. Futey. He expressed the hope that 2004 will be remembered as the year in which Ukraine made a step forward in the right direction in the legal and political arena.