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Judicial Independence
or Constitutional Crisis?
A New Challenge for Ukraine
By Bohdan A. Futey*
Since 1996, with the adoption of a new
Constitution, democracy and the Rule of Law have made strong
strides in Ukraine. Now, the Verkhovna Rada, the Parliament
of Ukraine, must pass a law instituting a constitutional
system for the courts of general jurisdiction under one
Supreme Court by June 28, 2001, or the courts of general
jurisdiction of the country will not have a legal basis
for their continuing operation. No matter what divides them
or what reservations on the law they retain, the members
of the Ukrainian
Parliament must enact the Law on the Judiciary in order
to avert a serious constitutional crisis.
Recent Problems in Ukraine
To read the news in recent months, it would
seem scandal and corruption are the norm in Ukraine. There
is no doubt the country has suffered many unfortunate episodes.
The freedom of the press, so highly valued in the new Constitution,
has been called into question, a problem embodied most obviously
in the disappearance and death of journalist Heorhij Gongadze,
and the emergence of secretly taped conversations allegedly
showing President Leonid Kuchma's involvement. The very
popular Prime Minister Victor Yushchenko was sacked recently,
despite signs of solid economic improvement and growth in
the country. Deputy Premier Yuliya Tymoshenko suffered arrest
and attempted rearrest on charges of corruption, tax evasion,
and document forgery. And Russia's strong diplomatic overtures
to Ukraine have caused concern in the United States. The
United States' stake in a free, democratic, economically
viable, and westward-leaning Ukraine is enormous, both for
the preservation of European stability and the prevention
of the formation of a new Russian empire.
Independence and the Rule of Law in the Ukrainian Judiciary
Given the history
of unease and instability in the former Soviet republics,
it is not surprising, perhaps, that when it comes to Ukraine,
the focus remains on the negative. There is a sense of seeming
permanence to the country's difficulties. But there are
positives to report, especially in the all-important area
of judicial independence.
In the case of the
afore-mentioned Ms. Tymoshenko, the Supreme Court of Ukraine,
which is the highest court of general jurisdiction in the
country, ruled on May 15 of this year that prosecutors had
illegally imprisoned the Deputy Premier before her trial,
and prohibited attempts to arrest her a second time.
In 1999, the Court
ordered the official registration of all seven candidates
in the presidential election, despite the government's opposition.
It validated the election of Serhiy Holovatyj as Deputy
in Parliament, in 1998, despite severe political pressure
against such a decision. Not only do these decisions demonstrate
healthy judicial independence, they also indicate a strong
endorsement of the Rule of Law.
The Constitutional
Court of Ukraine, which is a separately-created court under
Ukrainian law and the jurisdiction of which is solely over
questions of constitutional matters, has in its decisions
reinforced the importance of the Rule of Law. In the 1997
Ustymenko case, the Court held that the Constitution guarantees
the right of citizens to obtain information about themselves,
and to prevent unlawful retention and dissemination of that
information. In that year the court also upheld the constitutional
prohibition on dual mandates, stating that national deputies
could not hold two government positions at once.
In a lawsuit brought
by residents of the City of Zhovti Vody over the
devaluation of accounts in banks in 1998, the Court held
that courts of general jurisdiction could not refuse to
hear cases that involve guaranteed rights of citizens, essentially
issuing a jurisdictional mandate. In 1999, it examined the
question of the death penalty, and declared it unconstitutional.
Constitutionalism and Ukraine's Law on the Judiciary
These positive developments demonstrate
the existence of a nascent independent judiciary that can
effectively uphold the Rule of Law, and they represent a
significant next step in the process begun by the new Ukrainian
Constitution, adopted June 28, 1996. The adoption of the
Constitution was praised by the European Commission on Democracy
through Law (Venice Commission) as a document capable of
bringing true democracy to Ukraine.
The new Constitution contains transitional
provisions mandating the creation of various institutions
of government according to the principles set forth in the
Constitution itself. These provisions mandate the creation
of the Constitutional Court, which was achieved in 1996.
They also require the creation of a new system for the courts
of general jurisdiction within five years of the adoption
of the Constitution. The deadline for the Ukrainian Parliament
to pass such a law is therefore June 28, 2001. Various drafts
of Ukraine's Law on the Judiciary have been written to meet
this constitutional
mandate.
The Parliament has failed to enact the Law on the Judiciary,
however, despite the submission of these drafts of the law
to the Parliament. On May 24, the latest draft failed to
pass after its third reading before the Parliament, due
to various perceived problems and deficiencies. With mere
days before the elapsing of the five-year period for enactment,
therefore, Ukraine faces a constitutional crisis that easily
overshadows the scandals and controversy presently hampering
its progress as a developing democracy. Because the new
court system must be in place within five years of adoption
of the Constitution by its own terms, after June 28th the
courts would not have authority to render decisions without
new legislation. If this occurs, it would rupture not only
the implementation of the judiciary's role in Ukraine's
fledgling constitutional democracy, but also the fundamental
structure of the system of government in Ukraine. It is
the sole responsibility of Parliament to rectify this potential
constitutional catastrophe by adopting the Law on the Judiciary.
The Parliament cannot allow itself to rely
on the fact that problems exist in the present draft of
the law as the basis for refusing to vote the draft into
law. The Law on the Judiciary must be passed despite its
problems. At this point, the Parliament does not face a
vote on the structure of the judiciary so much as a vote
on the preservation of the new Constitution. Obviously,
passage of the most progressive Law on the Judiciary will
be of great benefit to all. But, no longer can petty disagreements
and political wrangling be allowed to impose themselves
in the decision-making process. The deficiencies of the
present draft may be addressed by subsequent amendments
to the law. The larger constitutional crisis that looms
in the immediate future must be solved first, for the sake
of democratic Ukraine and its
people.
Failure to adopt the Law on the Judiciary
would represent a double-loss tothe people of Ukraine, and
a compounding of the problems in government that have already
beset the country. First, if the deadline passes, the courts
would not be able to operate legally. The vacuum of power
most assuredly would be filled by other sectors of government,
or by other more uncertain forces, and the current momentum
for trust in the judiciary would be halted. Second, because
the courts are the last bastion for protection of the Ukrainian
system of government and the people's rights, abuses of
power by the legislature and executive branch would go unchecked
and may begin to be accepted again as business as usual.
Tendencies toward the law of command, or "telephonic
justice," utilized in the Soviet era, may resurface.
An emasculated judiciary in Ukraine would bring hardship
and lack of freedom to the people. The very possibility
of such crises must be extinguished immediately in Ukraine.
The imminent breakdown of systematic procedures and substantive
individual rights spell additional doom for Ukraine's relationship
with the international community, especially with regard
to economic reforms. Foreign investment, so important to
a country in transition to a market economy, would be expected
to diminish greatly in a Ukraine where business could not
rely on the courts to protect its rights. In addition, Ukraine's
good standing with international organizations such as the
Council of Europe will be threatened without passage of
the law. Ukraine has pledged to these organizations that
it would complete a full cycle of legal reform, including
the adoption of the Law on the Judiciary, as well as new
Civil, Administrative, Commercial, and Procedural Codes.
While the reformed Criminal Code has been enacted, without
the Law on the Judiciary, passage of any of the remaining
new codes will be made more difficult.
To build a nation based on the ideas of
democracy and the Rule of Law requires principled action
and political courage. Although each of the three branches
of government in Ukraine have displayed at times their great
commitment to a new system of constitutional government,
no one branch should ever take it upon itself to shoulder
the burden of this undertaking to the exclusion of another.
This is not the designed intent of the Constitution of Ukraine,
and it places too much power in one branch. The judiciary
has shown itself a capable defender of the Constitution
and of the democratic ideals
that the people of Ukraine have embraced. The political
parties and
factions in Parliament must now set aside their immediate
interests and eschew the temptation to hold this legislation
hostage. They must consider the passage of the Law on the
Judiciary as an enactment of constitutional scope and importance,
above politics and above even the normal functioning of
government. It is imperative that Parliament act to give
new life to the courts of Ukraine so the judiciary may continue
its crucial work alongside the legislative and executive
branches. Only when the overall constitutional system of
government in Ukraine is considered paramount will its problems
of
abuse and corruption be properly rectified. Parliament must
pass the Law on the Judiciary before the absolutely fundamental
independence and efficacy of the judiciary is damaged irreparably.
Since his arrival in Kyiv last October,
U.S. Ambassador Carlos Pascual has played a leading role
in bringing the various interested parties together (executive,
legislative and judicial) and has provided technical assistance
as well as opportunities for a meaningful discussion and
debate on the draft law. Now it is up to the Ukrainian Parliament
to act, and time is of the essence.
_________
*Bohdan A. Futey is a Judge of the United States Court of
Federal Claims.
Judge Futey is actively involved with Democratization and
Rule of Law Programs in Ukraine and Russia, and is an advisor
to the International Foundation for Election Systems (IFES).
E. Morgan Williams
Market Economy Group Information Service (MEGIS)
202 437 4707
If you have a choice - avoid at all costs having to deal with
the court systems in Ukraine. This is true of almost any country,
but in Ukraine this is due to a lot of other factors.
First of all, no one can or will ever tell you the true story about what the process is, how long it will take, what it will cost, or where it will lead. Secondly, if you are impeded by the Anti-Corrupt Practices Act of the US and unable to bribe your way through the system, your chances of winning a court case are virtually nil. Sure, you can hire a set of lawyers at astronomical rates who then will do all the dirty work for you, but you are still not sure of winning even if you are 100% in the right.
If you are going against local nationals, then your chances are even slimmer. First of all you will never know who stands behind your opponent, (your case may have been sold two or three times), and secondly, you are at a disadvantage because you are a "foreigner" and as such, you are automatically able to pay whatever you are fighting over.
Having said this, and if you still feel that you want to pursue your case in a Ukrainian court, do so with your eyes open. Learn as much as you can about the process. Know that your case can be lost, then won on appeal, then returned back to the same court and judge where you lost the first time. Your chances of winning the second time are..- you guessed it - nil. Learn about the appeals process. Be prepared to go all the way. Usually, this is where you will have to go.
Get a second opinion.
See the
'Legal
Services' section for additional comments about selecting
an attorney.
*****
