NEWS AND VIEWS: Judicial independence or constitutional crisis? (06/10/01)

NEWS AND VIEWS

Judicial independence or constitutional crisis?

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, 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 Heorhii Gongadze, and the emergence of secretly taped conversations allegedly showing President Leonid Kuchma's involvement. The very popular Prime Minister Victor Yuschenko was sacked recently, despite signs of solid economic improvement and growth in the country.

Vice Prime Minister Yulia 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 U.S. 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 in the 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 aforementioned 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 vice prime minister 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. In 1998 it validated the election of Serhii Holovatyi as a national deputy in Parliament, 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 of Ukraine 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.

The 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 Constitution of Ukraine, 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. Therefore, the deadline for the Ukrainian Parliament to pass such a law is June 28. 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 28 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 to the 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 has displayed at times 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 irreparably damaged .

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 U.S. Court of Federal Claims. He 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.

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