LEGAL ANALYSIS: Ukraine's Supreme Court decision (12/12/04)

LEGAL ANALYSIS: Ukraine's Supreme Court decision

by Bohdan A. Futey

In the months leading up to the Ukrainian presidential election, grave concerns were expressed regarding whether Ukraine would move forward as a democratic nation supporting a civil society that protects individuals rights under the rule of law, or would take a "step backwards" as the Venice Commission had noted.

Problems began to surface when the Verkhovna Rada, on the eve of the presidential election, attempted to initiate political/constitutional reform. The draft laws would have allowed the Parliament to elect the president and would have shifted a significant portion of the president's power to the prime minister.

Prior to voting on the measures, Parliament was required to obtain an opinion from the Constitutional Court of Ukraine certifying the draft laws' conformity with the Constitution of Ukraine. The judiciary, however, did not command respect from either the citizens of Ukraine or the other branches of government.

Surveys conducted in 2002 showed a deterioration of public confidence in the judiciary. It was unclear whether the judiciary, as the third branch of government, could issue an independent and objective opinion.

The Constitutional Court compounded this problem when it issued two vastly criticized opinions upholding the constitutionality of Parliament's election of the president and allowing President Leonid Kuchma to seek a third-term in office. The Constitutional Court's actions resonated throughout and the negative public opinions which accompanied those actions were imputed to the judicial branch as a whole.

The public's skepticism was shared by the international legal community, which doubted whether the judiciary was capable of efficiently and impartially resolving the inevitable presidential election disputes. The shortcomings of adjudicating election disputes following the 1998 and 2002 parliamentary elections were not corrected. Important issues concerning jurisdiction and venue remained unresolved. The election of the mayor of Odesa in 1998 and the election of the mayor of Mukachiv in 2003 are two well-known examples of courts in different oblasts invalidating election results outside their geographic territories.

Against this backdrop, supporters of democracy and the rule of law had difficulty maintaining a positive outlook as the presidential election approached. Nevertheless, the October 31 Presidential election and November 21 run-off took place as scheduled. Both rounds, however, were marred by allegations of massive fraud. In particular, international monitoring organizations noted serious deficiencies in the election process: many countries, including the United States, likewise questioned the election results.

In response to these allegations, the Ukrainian people stood up for the right to have their vote counted. The Ukrainian people could not remain silent as certain segments of the political establishment doctored the election results and deprived them of a meaningful election.

Over the course of the last two weeks, Ukraine and the world have witnessed the "Orange Revolution." The Ukrainian people are to be applauded for rising to the occasion and exercising their constitutionally protected right of peaceful assembly to demonstrate against the stealing of an election. The people are demanding nothing more than what they are entitled to.

As the voice of the people emboldened a nation, the Verkhovna Rada took notice and responded to the credible allegations of fraud. Through brave and courageous actions, the Parliament passed a resolution that called the election results into question as not representative of the will of the people. The Parliament also passed a vote of no-confidence in the current government. As representatives of the people, Parliament attempted to ensure that the presidential election reflected the will of the people.

Despite the allegations of widespread fraud, on November 24, the Central Election Commission (CEC) nevertheless voted to declare Viktor Yanukovych, the prime minister, the winner of the run-off election against Mr. Yushchenko, the opposition candidate.

On November 25, Mr. Yushchenko's representatives immediately filed a complaint with the Supreme Court of Ukraine. The complaint alleged that the final vote tallies in forty territorial districts, 20 percent of all districts, were falsified. The complaint also focused on voter list irregularities, improper use of absentee voter certificates, certification of precinct voting where the number of votes exceeded the number of registered voters, and multiple voting.

In an initial display of authority, the Supreme Court prevented the CEC from officially certifying the final vote count until the Supreme Court issued a decision addressing Mr. Yushchenko's allegations of fraud.

Over the span of five days, the Supreme Court heard oral arguments in the matter of Yushchenko vs. CEC. On December 3, after deliberating for approximately seven hours, the Supreme Court issued its historic decision. In one opinion, the Supreme Court unequivocally restored the dignity of the entire judiciary and instilled hope in democracy.

The Supreme Court began by overturning the CEC's November 24 vote count. The decision to overturn the vote count was based, in part, on the CEC's failure to consider the complaints filed by Mr. Yushchenko. Further, the Supreme Court concluded that, in accordance with provisions of the Law on the Election of the President and the Constitution of Ukraine, the CEC should not be permitted to officially certify the vote because complaints before lower courts were not yet resolved. Therefore, the November 21 run-off election was for all practical purposes "invalid."

The Supreme Court then determined that the appropriate remedy to redress the violations was to order the CEC to conduct a "repeat second round" of voting in every precinct in Ukraine. The Supreme Court also ordered that the additional round of voting would need to take place within three weeks and would be limited to the two candidates who initially advanced to the run-off.

The people of Ukraine, the Verkhovna Rada and the Supreme Court have not only spoken, but have acted accordingly. They should be saluted for their democratic actions geared toward preserving the sacred right to vote. The significance of their actions stems from the fact that the right to vote in a democratic society is one of the most precious of all individual rights. The Constitution of Ukraine provides that the president is to be elected "by the will of the people." The United States Supreme Court also has endorsed this proposition: "No right is more precious in a free country than that of having a choice in the election of those who make the laws under which as good citizens they must live." Voters' trust and confidence in the election process are of great importance. If citizens cannot be assured fair and honest elections, they will have no faith in other components of the political process. Social stability rests on the individual's confidence in the electoral process to function correctly in every respect.

It is now incumbent upon the executive branch to ensure that the final decision of the Supreme Court is enforced. The executive must heed the Constitution's instruction that judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine." Nearly all governments enforce the decisions of their judicial systems. According to Article 11 of the Law on the Judiciary, court decisions, entered into force, are binding and must be followed by state organs, local authorities, its officials, associations and other organizations, citizens and legal entities in Ukraine.

The importance of enforcing judicial decisions cannot be overstated; it goes part and parcel with the establishment of a credible, respected and independent judiciary. Further, the establishment of the rule of law rests on the development of a system that respects and enforces judicial decisions. There would be disastrous domestic and international consequences if a decision of this magnitude were not enforced.

The three branches of government must act in concert to resolve the presidential election crisis. While the steps taken to this date are commendable, it is imperative that the December 26 repeat vote comport with applicable constitutional provisions and international democratic standards.

The practical ramifications of a presidential candidate assuming office through a tainted election, and without the support of "the will of the people," cannot be overlooked. The candidate's tenure as president would be marred by allegations of illegitimacy. The repercussions flowing from such a usurpation of power would extend beyond Ukraine's borders. The candidate's ability to govern effectively in Ukraine would be severely undermined, and the lack of international recognition could lead to isolation or, at a minimum, stifle international relations.

Such an undesirable outcome can be avoided by adhering to the constitutional safeguards already in place.

The rule of law is secured through independent courts. The Supreme Court, in Yushchenko vs. CEC, re-instituted in practice the theory of separation of powers and affirmed the judiciary's independence. The Supreme Court harnessed its strengths and seized upon the judiciary's true potential. The judges fulfilled their constitutional mandate by placing the rule of law above any individual or political interests.

Simply put, the judges will be afforded respect because they respected themselves. Putting aside the substance of its decision, the example the Supreme Court has set for Ukraine's judiciary will have far-reaching implications. The theory of separation of powers no longer exists as merely a principle; rather, the day has come where the judicial branch is in application a co-equal and independent branch of government.

The Supreme Court should be congratulated. It seized upon the unique opportunity in Yushchenko vs. CEC to shape the law and the legal system in the same manner that the United States Supreme Court did in Marbury vs. Madison 200 years ago. December 3, 2004, will be remembered as a day on which the rule of law and democracy in Ukraine took a "leap forward."

Bohdan A. Futey is a judge on the U.S. Court of Federal Claims in Washington, and has been active in various rule of law and democratization programs in Ukraine since 1991. He served as an advisor to the Working Group on Ukraine's Constitution, adopted June 28, 1996. This article was written on December 6 expressly for The Ukrainian Weekly.

Judge Futey served as an official election observer for the International Republican Institute (IRI) during the first two rounds of the Ukrainian presidential election and will return for the repeat second round scheduled for December 26.

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