The Rule of Law and Democracy

Ukraine's Quest for Mature Nation Statehood Roundtable VIII:
"Ukraine-EU Relations"

The Rule of Law and Democracy

Bohdan A. Futey

Remarks by Bohdan A. Futey, Judge of the United States Court of Federal Claims, delivered during Ukraine’s Quest for Mature Nation Statehood Roundtable VIII: “Ukraine-EU Relations” Ronald Reagan Building and International Trade Center, Washington DC, October 16, 2007.

I appreciate the honor to speak at this important conference, especially at this time in Ukraine’s history in its quest to establish democracy and the Rule of Law.

The title of today’s program is “Has Ukraine Met the ‘Political Requirements’ for EU Membership?” As a federal judge, I will not comment on the political requirements; rather, I will address the Rule of Law requirements. The Rule of Law is the lynchpin to promote democracy throughout the world, and democracy, in turn, will provide a better and more prosperous economic life.

There are many characteristics of the Rule of Law. Let me just mention what I consider to be essential in the context of our discussion.

I. The supremacy of law, which means that all persons (individuals and government officials) are subject to the law. No person is above the law, regardless of his or her status.

I want to underscore that corruption remains a problem in Ukraine. In addition, it at least appears that those in power who hold onto their influence through corrupt means prefer the status quo. The immunity from prosecution that members of parliament currently enjoy is an example. The President has introduced a proposal to eliminate this immunity; this is an important step in eradicating corruption, and should be positively considered and adopted.

II. The importance of preservation of individual liberties: free speech, peaceful assembly, freedom of press, among other things.

Freedom of press and speech, in particular, were integral to insuring the transparency of the election process. In the September 30, 2007 parliamentary election there was open political debate preceding the election, the political parties were allowed equal access to the national media, and were afforded the opportunity to inform the Ukrainian people of their platforms and plans. (1)

III. Free and fair elections

The 2007 election demonstrates the realization of truly democratic elections in Ukraine: the election was conducted in a free and fair manner, consistent with Rule of Law standards and European Union requirements. Representatives of the political parties participated as election commissioners and were able to monitor the elections themselves. Perhaps most importantly, the elections were peaceful and free from the election fraud which tainted elections in 2002 and 2004. (2)

Ukraine’s achievements have not gone unnoticed by the international community. By the account of the international observers: the Organization for Security and Cooperation in Europe (“OSCE”), the International Republican Institute (“IRI”), and the National Democratic Institute (“NDI”), the election was free, transparent and democratic. The Council of Europe has declared the 2007 election to be “free and fair,” (3) and the United States Congress has introduced a resolution “[c]ongratulating the Ukrainian people for the holding of free, fair, open and transparent parliamentary elections on September 30, 2007, in a peaceful manner consistent with Ukraine’s democratic values and national interest, in keeping with its commitments as a participating State of the Organization for Security and Cooperation in Europe.” (4)

Notwithstanding the free and fair election, improvement is still needed. For example, the voter lists remain problematic, as do the practices of home voting and individuals returning from abroad to vote. Moreover, the democratic election has not, in my opinion, solved the legal chaos and constitutional crisis in Ukraine. The small margin of votes between candidates may not guarantee a smooth political transition, and significant problems in the area of judicial independence persist.

IV. An independent judiciary

As there cannot be a market economy without private ownership of property, there cannot be respect for the Rule of Law unless there is an independent judiciary. President Yushchenko has recognized this and promoted judicial reform since he first assumed office in 2005. In his inaugural address, President Yushchenko explained that while Ukraine has been independent since 1991, it has only now become free. He underscored that an independent judiciary is vital to establishing a civil society based on the Rule of Law. President Yushchenko emphasized that an independent judiciary was an integral part of his pledge to protect individual rights and fight corruption. On the one year anniversary of his inauguration in 2006, President Yushchenko reiterated his commitment to an independent judiciary, announcing to the nation that 2006 would be year of reform and that the judicial system would be a key element of change.

On March 22, 2006, just days before the parliamentary elections, the National Committee to Strengthen Democracy and the Rule of Law in Ukraine adopted a new Concept Paper for the judiciary in Ukraine. President Yushchenko, however, has been unable to pursue any of his ideas for reforming the judiciary or implement any of the suggestions contained in the Concept paper because since the political reform took effect almost two years ago, he has had to deal with one political or legal crisis after another.

Following the March 2006 parliamentary elections, it at least appeared possible that the various factions could work together to pursue certain goals that were generally in the national interest. This quickly started to unravel, however, because with every step forward, there seemed to be two steps back. From a legal standpoint, this was particularly obvious because immediately after finally electing its justices and swearing in the President’s and Council of Judges’ nominees, Parliament passed a bill prohibiting the Constitutional Court from deciding on the amendments to the constitution passed as part of the political reform. President Yushchenko, for one reason or another, signed the bill into law the same day.

Although the law is currently “preventing” the judges of the Constitutional Court from considering the political reform, this is not the only barrier to the Constitutional Court playing its proper role in the current constitutional crisis. Instead of deciding on the issues, the judges seem to be avoiding taking action right now and are waiting for the political situation to clear up before making any moves. This is an enormous mistake on their part because it marginalizes the role of the entire judiciary in Ukraine, where the Rule of Law and democracy are just barely holding on at this point. Judicial independence is desperately needed right now, and the judges must start performing their jobs. Judicial independence does not mean the judges do as they choose, of course, but do as they must in accordance with the constitution and laws of the country. This will all depend largely on the conscience and courage of the judges themselves.

Currently, the public has a low opinion of the Ukrainian courts. What credibility the courts gained as a result of Yushchenko v. CEC in 2004, has disappeared and there has been a steady erosion of the judiciary’s authority. At this point, any decision made by the Constitutional Court will not be respected. Many feel that judges cannot be trusted. For example, judges accused of improprieties continue to hear cases because ther
e is no mechanism for them to step down or be suspended from their duties. Judges need to be free from suspicions of corruption in order to maintain public confidence, therefore, a procedure should be put in place for judges to cease hearing cases if they are under investigation. Additionally, judges should first resign before running for office on political party lists. At the very least, a judge’s inclusion on a party list gives the appearance of impropriety, at the worst, political activism will effect a judge’s impartiality and decision-making ability. All of this is only exacerbated by the fact that no one in the government is respecting the judiciary. This, however, is a symptom of the fact that the judiciary is not stepping forward in this time of crisis. Judges will not be respected until they respect themselves.

There are two aspects in which judges must be independent. First, they must be honest-brokers, in that they are independent from and neutral among the parties that appear before them. Judges must decide matters before them impartially, on the basis of the facts and the law, without any restrictions, improper influences, inducements, or threats, direct or indirect, from any party or institution for any reason. A judge’s moral commitment to this form of independence eliminates favoritism and corruption from the nation’s judicial system. If judges fail in this duty the public will lose confidence in the basic equity of its society, generating cynicism, anger and instability.

Second, the judiciary – and each individual judge – must act as co-equal with and independent of the other branches of government. Judges are independent in this sense if they are not beholden to any other branch of government or political party. It is vital that courts have jurisdiction and the power to restrain the legislature or executive by declaring laws and official acts unconstitutional when they abridge the rights of citizens. Further, for judicial independence to have practical effect, the court’s interpretation must be accepted and enforced by the legislative and executive branches of government.

The Verkhovna Rada, however, has, in my view, exerted unconstitutional control over the Constitutional Court. It has prevented the Court from operating for ten months by failing to swear-in judges selected by the President and the Council of Judges, and by failing to elect its own share of judges to the Constitutional Court. This oversight authority allowed the Parliament is a clear violation of the separation of powers. Ukraine’s constitution adopts the principle of separation of powers in Article 6 and establishes legislative, executive and judicial branches. (5) In order to avoid subordination of the separate branches, the Ukrainian constitution provided each branch with a range of checks and balances over the other branches. To properly effectuate the principle of separation of powers, however, the constitution requires that the branches of government not only be separate but also, in my view, coequal. This proposition presupposes that one branch of government does not exert undue influence over the other and does not attempt to “oversee” the actions of the other. While to some, “oversight” of the judiciary could appear to be a viable solution to the perceived problem of judicial shortcomings, in practice it contravenes the Rule of Law and undermines judicial independence.

In addition, the judiciary needs to have its own constituency, primarily the legal profession and strong bar associations. These will be responsible to expose unethical practices of the judges, and/or coercive tactics upon judges and enlist the press on their side. In the United States, the major defenders or critics of the judiciary are members of the legal profession themselves (ABA), law school professors, as well as the media. It would be refreshing and welcome news if professors of law schools in Ukraine would start to speak out, as well as the association of lawyers, jurists, the Ukrainian Bar Association, and hopefully the World Congress of Ukrainian Jurists.

The ABA-CEELI evaluated the Ukrainian judiciary and issued a report finding that it did not meet the standards necessary for a democratic nation following the rule of law. This report, the Judicial Reform Index for Ukraine, assesses how the conditions related to judicial reform and judicial independence in Ukraine correlate with fundamental international standards in this area. The judiciary is analyzed through a prism of 30 factors covering areas such as judicial qualification and education, judicial powers, financial resources, structural safeguards, accountability and transparency, and efficiency of the judicial system. Unfortunately, the results illustrate that Ukraine scored positively on only four of these factors. On the other hand, 15 factors received a negative correlation, including most factors related to lack of independence in the judicial decision-making and external interference in other aspects of the work of the judiciary, dire financial conditions of the courts, and lack of transparency of court proceedings and documents. In a Rule of Law Project poll, both Ukraine’s judges and journalists concur with these findings and believe that the judiciary should be reformed. For example 84% of journalists surveyed and 77% of judges believe that reform should be a top priority. (6)

The question remains whether democracy will survive in Ukraine. Ideally, the Constitutional Court would perform its duties faithfully and without outside influence, solve the constitutional and legal crisis, and the other branches of the government would respect and adhere to any decisions of the Constitutional Court. We are far from an ideal situation, however, and although I have hope that the Rule of Law will persevere in Ukraine, it at least appears that the leadership on all sides has attempted to exert political pressure on the judiciary (7) that may threaten the country’s democratic future. (8) Furthermore, the current political crisis has ruined many of Ukraine’s governmental institutions, including the Constitutional Court. Unfortunately, I have to concur with the many critics that have stated that the Constitutional Court has been discredited and that the legal and constitutional systems are being destroyed. (9) At this point, I cannot honestly and truthfully say that any decision by the Constitutional Court pertaining to the current political and legal crisis will be reasonable and objective. Major changes will need to be made, therefore, in order for the crisis to be resolved and for democracy to take hold in Ukraine.

Finally, it is apparent that something needs to be done to clarify and strengthen the constitution. The primary source of constitutional crisis in Ukraine is, of course, the political reform. The problems began following the fraudulent presidential run-off election in 2004, which sparked the Orange Revolution. At that time, the Verkhovna Rada passed several amendments to the Constitution on December 8, 2004 known as the political reform, which became effective January 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. In addition, the President’s decree dissolving Parliament on April 2, 2007 brought Ukraine to an even deeper constitutional crisis.

The stat
us of the political reform still remains in question. 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 should be submitted to and approved by a national referendum. (10) No such referendum was ever put forward. Many critics of the reform, including myself, (11) believe that the political reform is a change in the political system 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.

One option is for the Constitutional Court to consider the political reform and decide which amendments are constitutional and which need to be changed, or even strike the entire political reform. As I said earlier, however, this seems unlikely because the Constitutional Court is unwilling or unable to proceed because of the political climate. Moreover, any adoption of a new constitution or constitutional amendments by national referendum would be unconstitutional under the current constitution. Another option would be for the President and Parliament to agree to eliminate the political reform, return to the original constitution, and work together to amend the constitution properly. The final option is to start from scratch and completely re-write the constitution. The second option is the most desirable because the constitution, as it was originally adopted, was widely praised for its protections of human rights, including commendations from the Council of Europe and the Venice Commission. It seems to me that the fault of the original constitution lay more with the lack of implementation of its provisions and not with the concepts expressed in the text itself.

Although the legal situation in Ukraine is chaotic right now, so long as Ukraine’s leaders remain at the negotiating table, the reforms can continue and democracy can take hold. Ukraine has had success when its leaders decide to negotiate through a crisis rather than give up or resort to violence. For example, in 1995, despite an acrimonious dispute between then-President Kuchma and the Verkhovna Rada, an agreement delineating the executive and legislative branches’ powers and principles for self-government was reached. Unlike many other former Soviet countries, a dispute was resolved diplomatically instead of by violence. As a result of this compromise, Ukraine was able to adopt a constitution a year later, taking 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.

Ukraine was able to resolve a crisis through compromise and agreement in 2004 as well. Following the November 21, 2004 run-off in the presidential election and the ensuing litigation, with the Orange Revolution gaining momentum, tensions between the Parliament, the Prime Minister, the outgoing President, and the opposition were running high. The use of force appeared almost inevitable. As was the case so many times before, however, the Ukrainian politicians, with the help of a number of foreign leaders, sat together at the negotiating table instead of taking up arms. The parties agreed to a simultaneous vote in the Verkhovna Rada on a constitutional amendment that transferred some of the powers of the President to the parliament and a bill amending the law on presidential elections. The Verkhovna Rada passed both on December 8, 2004. In addition, the political leaders agreed to hold early elections in 2007.

The transition from a command system to a system based on the Rule of Law is not easy, but I am an optimist and believe that Ukraine can move forward and become a democratic state in accordance with European standards and requirements. Let us hope that democracy in Ukraine will not rest on handshakes and political agreements among politicians, but on building of solid and strong institutions, a must for a civil society.

(1) See Yuras Karmanau, Ukraine’s Pro-West Allies in Talks, BOSTON GLOBE, Oct. 4, 2007.
(2) See Orange Revolution Back on Track After Ukraine Election, EURASIA DAILY MONITOR, Oct. 5, 2007, Vol. 4, Issue 185.
(3) Karmanau, Ukraine’s Pro-West Allies in Talks, BOSTON GLOBE, Oct. 4, 2007; Orange Revolution Back on Track After Ukraine Election, EURASIA DAILY MONITOR, Oct. 5, 2007, Vol. 4, Issue 185.
(4) H.R. Res. 713, 110th Cong. (2007).
(5) UKR. CONST. chap. I, art. 6 (“State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.”).
(6) See Kyiv International Institute of Sociology, The Baseline Survey of Ukraine Rule of Law Project, March 2007; USAID Ukraine Rule of Law Project, ‘Judicial Reform and Journalism’ Presentation of the Result of the Sociological Survey of Journalists; March 2007.
(7) Members of the Rada have made threats against judges of Pechersk Regional Court that they will be dismissed for declaring that the attempt to bring back the old CEC membership was illegal. In addition, on May 8, 2007, some Rada deputies introduced a bill attempting to dismiss five judges of the Constitutional Court.
(8) On April 10, 2007, Justice Petro Stesyuk stated during a press conference that five members of the Constitutional Court feel that they are under political pressure to resolve this case without procedural safeguards and that they “threaten to affect an independent conduct by the Court of its constitutional duties, democracy in Ukraine and constitutional rights and freedoms of citizens.” Open Letter from Justices Lilak, Kampo, Stetsyuk, Shyshkin, and Machuzhak to the Ukrainian people, President of Ukraine, Rada deputies, and Judges of Ukraine, April 10, 2007. On May 10, Chief Judge Dombrovsky, made another statement condemning the dismissal of the Judges by Yushchenko and expressing that various persons are trying to influence the judges. It is, therefore, questionable whether the Constitutional Court will be able to act at all. The Constitutional Court may also choose not to decide on this case if it finds that the effectiveness of the decree is a political question. See Baker v. Carr, 369 U.S. 186 (1962).
(9) See Volodomyr Fecenko, Interview with BBC, May 17, 2007; Havrysh Considers Court Unconsitutional, Ukrayinska Pravda, May 15, 2007. Furthermore, Mykola Onishchuk, the head of the Ukrainian Lawyer’s Union stated that the Constitutional Court must be dismissed. See Ukrayinska Pravda, May 17, 2008.
(10) People’s Authority to Amend Constitution, decision by the Constitutional Court, October 5, 2005.
(11) Bohdan A. Futey, “Crisis in the Constitutional Court of Ukraine: A Court Without Judges?” August 18, 2005.