COMMENTARY: Examining draft of Ukraine's Constitution (02/04/96)

COMMENTARY: Examining draft of Ukraine's Constitution

by Judge Bohdan A. Futey

On November 15, 1995, the Working Group of the Constitutional Commission of Ukraine had issued a preliminary draft version of Ukraine's Constitution to be presented to the Supreme Council at the beginning of this year. The final version of the constitution must further enable Ukraine's shift from a command system to one based on the rule of law.

Initially, this draft constitution acknowledges principles that support a democratic system. For example, Article 6 states that the power of the state is to be divided between the legislative, executive and judicial branches. Such division implies a co-equality of all three branches and allows for the necessary "checks and balances" that limit the government's authority over its citizens. Further, the draft indicates that the power of each branch derives from the constitution, which connotes the independence of each branch.

Later provisions, however, demonstrate that this draft fails to fully embrace the principles supporting a democracy based on the equality of separate branches of government.

As for adopting such a system, the November 13, 1995, draft of the Law of Ukraine on the Judicial System (Court System) goes much further than does the Working Group's draft of the constitution, especially concerning the judicial branch of power.

While not perfect, the draft Law on the Judicial System better establishes the credibility of the court system as well as the respect due to the judiciary. For example, the draft law clearly emphasizes the judiciary's equality with the other branches of government. In addition to several times expressly affirming the courts' independence, the draft contains specific provisions allowing the court to implement its power.

For example, Article 1, paragraph 2 gives the courts the exclusive authority to interpret the law. Article 6 contains language reminiscent of Marbury v. Madison, an early case in the United States that articulated the courts' power of judicial review - the power to declare unconstitutional both legislative statutes and executive acts. Paragraph 3 empowers the courts in Ukraine to declare "enactments" unconstitutional.

The draft law also guarantees judges' lifelong tenure. Life tenure assures judges that they will not lose their jobs in the event of an unpopular decision. This provision, therefore, helps to maintain the courts' impartiality and independence, both of which are necessary in order to maintain a democratic state.

The draft law also supports a unified court system. Whereas earlier drafts of this law, as well as the current draft of the constitution, call for a court system with more than one organizational pyramid, the November 13, 1995, draft Law on the Judicial System establishes a court system where all courts are "under a single umbrella." The Supreme Court of Ukraine is at the apex of this system, with the Constitutional Senate as a part of this court.

The Supreme Court is also composed of various specialized judicial boards. Thus, the decisions of the Supreme Court will influence the decisions of all courts and judicial institutions.

While certain aspects of this draft law require some fine-tuning, as a whole, it goes a long way in establishing the judiciary's independence and co-equality. This would help guarantee a system based on the supremacy of the rule of law.

For these principles to be effective, however, the constitution also must adopt them. In doing so, the drafters of the constitution will smooth the path toward restructuring Ukraine's legal system, its economy, and its entire system of government. The current draft of the constitution, however, contains many roadblocks on that path.

One problem with the November 15, 1995, draft of the constitution is found in Article 103, which states that the president "is the guarantor of state independence, territorial integrity of Ukraine [and] adherence to the constitution," among other things. This article may be analogous to Article 11 of the United States Constitution, where the president is obligated to "preserve, protect and defend" the constitution and is granted the power to faithfully execute "the laws."

If so, then this provision is in harmony with the doctrine of separation of powers. If, on the other hand, it means that the president is the guarantor of the power and independence of the judiciary and the legislature, then this article actually interferes with the separation of powers, as shown by the conflicting language in Article 151, which states that the Constitutional Court determines the constitutionality of laws and normative acts by its own interpretation of the constitution.

The court system in general is addressed in Part VIII, titled "Dispensation of Justice." It is noteworthy that the parts dealing with the other two branches use the terms "legislature" and "president" in their titles. Therefore, for the sake of continuity and in order to demonstrate the co-equality of this branch, the drafters should use a title such as "The Judiciary" for Part VIII, rather than merely describing judicial functions.

In this part, the Working Group's draft describes the Supreme Court of Ukraine as only a higher cassational (review) court, rather than the highest court. In addition, the judges of this court are appointed for a three-year term, after which they are eligible for a lifetime appointment. While the eventual lifetime tenure will help ensure impartiality of decisions, the initial three-year term may hinder the appearance of judges' objectivity. As for the removal of these judges, the draft states that their removal will be defined according to a statute. The draft does not contain a provision for impeachment of Supreme Court judges, as it is provided for Constitutional Court judges. The removal process should be the same for both courts.

The draft addresses the Constitutional Court separately, and its treatment of the Constitutional Court raises a series of issues.

First, the draft states that the Constitutional Court is not part of the court system of Ukraine and is independent from the legislature, the executive and the judiciary. Thus, despite prior language dividing power among three branches, there now seems to be a fourth independent body.

The second difficulty is the number of judges on the court. The draft calls for 14 Constitutional Court judges. What happens if there is a tie? In the United States, when the judges are evenly split, the lower court's decision stands. The draft, however, does not establish a court below the Constitutional Court. As for court decisions, the draft does not state how many judges must agree in order to constitute a binding decision. Is a simple enhance the judges' ability to render impartial opinions. Other provisions, however, hinder the appearance of impartiality.

For instance, judges on the Constitutional Court serve only a 10-year term. As a result, relatively young judges face the prospect of finding future employment and, with that in mind, might favor one side over another. In addition, the judges elect the chief judge and the deputy chief judge from their own ranks, which may encourage patronage among the judges.

Further, the draft constitution fails to guarantee the non-reduction of judges' salaries. The draft Law on the Judicial System is deficient also in terms of guaranteeing non-reduction of salaries. In order to reinforce the public's confidence in the judicial system, it is important to guarantee judges' independence in making decisions by securing their lifetime tenure and non-reducible salaries. The deficiencies in the draft law and draft constitution may instead create the appearance of impropriety in the public's mind.

Another difficulty with the Constitutional Court arises in terms of a procedural standpoint. The draft gives the court the power to issue advisory opinions requested by the procurator, the Supreme Council, the president, the human rights representative and citizens. Further, the court is empowered to interpret legislation, statutes and the actions of other governmental bodies in addition to interpreting the constitution. The court's power over interpretation plus its jurisdiction over advisory cases suggest that there will be an enormous workload for only 14 judges. This will create a backlog of cases.

Another governmental entity that poses problems in the November 15, 1995, draft of the constitution is the Procurator's Office. Under part VII of this draft, the procurator has supervision over the legality of activities in Ukraine and is guided only by the constitution and the laws. The procurator is independent of any branch. As with the Constitutional Court, the draft has created an additional independent office in contradiction to Article 6, which divides power among the three main branches of government.

Unfortunately, the November 13, 1995, draft Law on the Judiciary suffers from this same problem by allowing the procurator to participate in the work of the Plenary Assembly of the Supreme Court in setting the court's policies. Given the notorious history of Procurator's Office during the Soviet empire's rule, it is puzzling that the drafters are so eager to grant the procurator so much power and independence.

An additional problem with the Working Group's draft constitution is its failure to address the right to a jury trial. The concept of jury trials has received much attention during the years spent drafting Ukraine's new constitution. In order for jury trials to be established as a right, this concept must be incorporated into the constitution itself.

The November 13, 1995, draft Law on the Judicial System allows for jury trials, although it contains some ambiguities and inconsistencies. For example, the draft law is unclear as to whether the jurors act as mere fact-finders or as lay judges. Further, the draft law allows different sized juries for different courts. The draft law also raises an age discrimination issue: jurors must be at least 30 years old, whereas voters and candidates for the Supreme Council need only be 25 years old.

Without a constitutional basis for jury trials, however, the provisions in the final Law on the Judiciary, or any law addressing jury trials, are subject to change in the future.

It is clear that the current Constitution of Ukraine - a patchwork of the Soviet Constitution with amendments, the Constitutional Agreement and presidential decrees - is insufficient for Ukraine's current needs. However, the process for ratifying a new constitution is currently being hampered by a struggle between the president and the legislature as to where power should be concentrated.

As the deadline for ratifying a new constitution approaches, these two branches and the drafters should not overlook the importance of an independent and coequal judicial branch in order to establish a market economy as well as a democracy based on the rule of law. To that end, the November 13, 1995, draft Law on the Judicial System provides better guidance in that direction than does the Working Group's November 15, 1995, draft of the constitution.

Judge Bohdan A. Futey sits on the U.S. Court of Federal Claims in Washington.

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