Seminars focus on integrating Ukraine's Constitutional Court into civil society (08/02/98)

Seminars focus on integrating Ukraine's Constitutional Court into civil society

by Victor Lychyk

WASHINGTON - The U.S.-Ukraine Foundation and the Pylyp Orlyk Institute for Democracy recently held three seminars in Ukraine as part of a program titled "Integrating the Constitutional Court into Ukraine's Civil Society." The program seeks to enhance public understanding of Ukraine's Constitution and the Constitutional Court by holding seminars with the participation of legal experts from Ukraine and the U.S.

The Constitutional Court

On May 22, a seminar was held in the town of Yaremche, Ivano-Frankivsk Oblast, that focused on the relationship between the Constitutional Court and other governmental institutions, national and local.

Constitutional Court Justice Volodymyr Shapoval spoke on general problems of establishing constitutional jurisdiction while Justice Mykola Korniyenko discussed how the interests of local government may be protected by the Constitutional Court.

Judge Bohdan Futey of the U.S. Court of Federal Claims contrasted the U.S. and Ukrainian judicial systems. He noted that the U.S. has a unified federal court system with the Supreme Court acting as the final arbiter of law including issues regarding the Constitution. In Ukraine, as in many other European countries, the judicial system is divided into courts of general jurisdiction and a Constitutional Court. In Ukraine, the Supreme Court is the highest court of general jurisdiction. Only the Constitutional Court, however, can rule on the constitutionality of laws or issue interpretations of the Constitution.

Attorney Stephen Nix discussed the relationship between the Supreme Court and the other branches of government in the United States by using the issue of executive privilege as a case study.

The teaching and study of Constitutional Law

A seminar on "Advancing Scholarly Research and Improving the Teaching of Constitutional Law" was held in Kharkiv on June 19 at Yaroslav the Wise National Law Academy of Ukraine.

Rector Vasyl Tatsiy noted that the academy has an enrollment of about 14,000 students. The topic of the seminar, he said, has great value since it addresses both teaching and research issues, and is taking place with the active participation of colleagues from the U.S.

Justice Shapoval noted that while the fields of civil and criminal law have been clearly defined, the field of constitutional law is still being debated.

Prof. Gordon Hylton of Marquette University Law School pointed to conflicting provisions in the Constitution regarding the question of who has ultimate authority within the executive branch. The Constitution declares that the president is the head of state, but makes no mention of him being the head of the executive branch. The supreme body of the executive branch is the Cabinet of Ministers. The Constitution also states that the Cabinet of Ministers is responsible to the president and that its activity is governed not only by the Constitution and laws of Ukraine, but also by presidential acts. Furthermore, Article 106 gives the president the right to annull acts of the Cabinet of Ministers.

Chief Judge Loren Smith of the U.S. Court of Federal Claims enumerated the qualities of good constitutional lawyers and explained that the ideology of the United States is embodied in the U.S. Constitution. Judge Smith also recalled what James Madison said about the courts being the "least dangerous branch" of government because they have neither the power of the sword nor the power of the purse. The power of the courts, Judge Smith said, stems from the public and its support, essential if the judiciary is to succeed.

Attorney Robert Liechty, director of the American Bar Association's Central and East European Law Initiative in Kyiv, pointed out that since only the Constitutional Court can rule on the constitutionality of laws, its decisions will form the basis of constitutional law in Ukraine. He also stated that the real audience for the Constitutional Court's decisions is the average Ukrainian, whom the court can reach through the media. The highest duty of the judges on the Constitutional Court, therefore, is using their decisions as a means of teaching the rule of law in Ukraine.

Other presentations focused on the constitutional bases of the election system and local self-government, approaches to the study of constitutional law and its relationship to other branches of law and the role of the Verkhovna Rada's human rights representative or ombudsman.

The Constitutional Court and human rights

The final seminar of the series, "The Role of the Constitutional Court in Protecting Human Rights in Ukraine," was held in Kyiv on June 26 in the Constitutional Court's Press Center.

Constitutional Court Judge Mykhailo Kostytskyi noted the salient role of human rights in Ukraine's Constitution and discussed how human rights cases are handled in Ukraine's court system today.

National Deputy Oleksander Barabash, the first Ukrainian citizen to petition the Constitutional Court for an interpretation described the procedure that he went through in order to bring a case before this judicial body.

Citing the court's ruling in favor of Mr. Barabash, National Deputy Viktor Shyshkin, who helped write the Law on the Constitutional Court, stated that the "Constitutional Court has become a staunch and independent defender of human rights."

Judge Futey examined the origins and development of the individual rights question in the U.S. He noted that the U.S. Constitution of 1787 did not contain specific guarantees of individual rights. In order to remedy this controversial omission, the first 10 amendments to the Constitution, or Bill of Rights, were adopted in 1791. Judge Futey compared the constitutions of the U.S. and Ukraine in terms of the rights they contain.

Judge Charles Wolle, chief judge of the United States District Court for the Southern District of Iowa, spoke about the right to due process - that no person may "be deprived of life, liberty or property, without due process of law" - which is at the core of the American Constitution and the judicial process. He noted that while the meaning of due process has been debated, it is generally meant to ensure that everyone has the right to go to court to defend their rights, to receive a fair hearing and trial before a decision is made, and to receive a fair and just ruling from an impartial and independent court.

Judge Suzanne Conlon of the U.S. District Court for the Northern District of Illinois called the Bill of Rights a "contract for freedom." By discussing individual amendments, she illustrated how the interpretation of these rights has resulted in differences of opinion, public debate and substantial litigation.

The dean of the National University of Kyiv-Mohyla Academy Law School, Volodymyr Suschenko, discussed various aspects of this institution's program in legal education.

For more information contact the U.S.-Ukraine Foundation at: telephone, (202) 347-4264; fax, (202) 347-4267; or visit the USUF website at http://www.usukraine.org.