In Europe and around the world, many countries follow the civil law system, rather than the common law. Common law systems are hierarchical and unified, with a single high court atop the hierarchy, while civil law judicial systems sometimes lack a unified court system and instead rely on separate, specialized courts. In the present era of globalization, however, the distinction between the two systems has become blurred, and common law and civil law countries have incorporated some shared features. The aim of either judicial system is to provide stability through the consistent application of the law and adherence to the Constitution, as the whimsical and contradictory application of judicial rulings has far-reaching negative effects. Arbitrary application of the law instills uncertainty and confusion not only in legal circles, but also in the people of a given country, as well as the international community. As a common law system, the United States and its experience with precedent should therefore be relevant to ensuring consistency in Ukraine’s legal system.
In the United States, courts engage with precedent via the doctrine of stare decisis. Under this doctrine, appellate courts generally adhere to decisions of their own court, although they have the power to overturn those prior decisions. The Supreme Court has described this doctrine as one of “fundamental importance to the rule of law.”
Stare decisis stems from a Latin phrase meaning “[t]o stand by things decided, and not to disturb settled points.” The doctrine reflects “a policy judgment that ‘in most matters it is more important that the applicable rule of law be settled than that it be settled right." Following precedent “promotes the even-handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” The doctrine, however, is “not an inexorable command” and “does not preclude” a court from recognizing a change in law and overruling older cases that are “inconsistent” with more recent decisions.
Because judges are not absolutely bound by precedent, courts sometimes consider the policies of stare decisis when ruling on cases. At least three general purposes are served by following precedent.
If in every case, a court had to write on a blank slate when determining the correct rule of law, the judicial system might collapse under the inevitable delays. The Supreme Court has noted that “no judicial system could do society’s work if it eyed each issue afresh in every case that raised it.” Stare decisis “expedites the work of the courts by preventing the constant reconsideration of settled questions” and allows courts to focus on new and unsettled questions of law.
First, it helps to ensure that statutes and rules are interpreted with “consistency and uniformity, because a settled question of law cannot be lightly disturbed.
Second, following precedent ensures predictable outcomes. Adhering to precedent encourages judicial self-governance and helps “preserv[e] a jurisprudential system that is not based upon an ‘arbitrary discretion."
Third, the doctrine promotes judicial efficiency. If in every case, a court had to write on a blank slate when determining the correct rule of law, the judicial system might collapse under the inevitable delays. The Supreme Court has noted that “no judicial system could do society’s work if it eyed each issue afresh in every case that raised it.” Stare decisis “expedites the work of the courts by preventing the constant reconsideration of settled questions” and allows courts to focus on new and unsettled questions of law.
Effect of overturning political reform
The decision of the Constitutional Court of Ukraine on the “political reform” is an abrupt change of course. Although the substance of that decision was correct, the court should have explained in full its reasons for departing from its prior, recent rulings on this exact subject. The failure to do so, and the uncertainty created by the recent decisions, threatens legal chaos.
The “political reform” was passed by the Verkhovna Rada in response to the fraudulent presidential runoff election in 2004. The reform, embodied in Law No. 2222-IV (the Law of Ukraine on Amending the Constitution of Ukraine), constituted a series of amendments to Ukraine’s constitution. The amendments resolved the electoral crisis, but were hastily adopted and not passed in accordance with required constitutional procedures. According to a 2005 decision of the Constitutional Court, changes in the political system of Ukraine must be submitted to and approved by a national referendum, in addition to all other requirements. The “political reform” was never subject to any such referendum. Many critics, including myself, believe that such a referendum was required because the reform changed the political system and converted Ukraine from a presidential system into a parliamentary system.
The procedures for adopting the “political reform” were challenged as recently as 2008. One hundred and two legislators petitioned the Constitutional Court to review the procedures for adopting Law No. 2222, but the court dismissed the challenge in February 2008. The court ruled that when the law amending the constitution became effective, its provisions were practically incorporated into the text of the constitution. “Having become effective,” the Court wrote, “the law itself is functionless.”
The Constitutional Court reversed course on Sept. 30, 2010. In response to the constitutional petition of 252 legislators, the court issued a decision and reviewed the constitutionality of the procedures for adopting the political reform. Without a proper explanation of why a challenge could now be brought to those procedures, the Court found law No. 2222 invalid and restored the provisions of the constitution which were amended, broadened or excluded by Law No. 2222. The decision is doubtlessly legitimate, since the procedures for enacting the political reform were unconstitutional. espite that legitimacy, however, the decision has a number of far-reaching consequences.
The decision may undermine the rule of law, since the court has now rendered inconsistent decisions. It is a risky practice for a democratic state to have its highest court issue conflicting decisions without thoroughly explaining that conflict. Legal reasoning can certainly change over time, but the court should have dealt with and explicitly invalidated its prior decisions to avoid legal inconsistency. Not so long ago, I commented on the April 8, 2010, decision of the court concerning the possibility of forming a coalition by individual defecting deputies in the Verkhovna Rada. This decision reversed a decision of Sept. 17, 2008, dealing with the formation of coalitions. Legally, nothing had changed except for change in government, and the sudden reversal raised questions of legitimacy. The recent change in course also raises issues of legal consistency and calls into question whether the judiciary has upheld the rule of law.
In the coming months, Ukraine will have to confront one of the most apparent conflicts: elections. When do the parliamentary elections and elections to other state bodies take place? When will the president’s election take place?
The substance of the court’s decision restored the provisions of the 1996 Constitution that were changed by Law No. 2222, but did so without including specific directives regarding the legitimacy of current state institutions. According to the court, reverting to the prior version of the constitution ensures stability in Ukraine, and guarantees human rights and freedoms, as well as the integrity, inviolability, and consistency of the constitution as the supreme law of the land. Reversion, however, also throws into question the legitimacy and activity of all state bodies elected, convened, or created during the last six years. This may impede future legal relations in the state, since people are uncertain which legal entities are legitimate and which have been overturned with the downfall of the political reform. The court should have explained the legal force of laws and provisions adopted in accordance with the 2004 constitution to avoid conflicts between rules of the 1996 constitution and laws adopted after the political reform became effective.
In the coming months, Ukraine will have to confront one of the most apparent conflicts: elections. When do the parliamentary elections and elections to other state bodies take place? When will the president’s election take place? All of these officials were elected in accordance with the procedures established by a law that has now been ruled unconstitutional. Will the parliamentary elections be held in March 2011 (the last Sunday of the last year of terms), as foreseen in the 1996 constitution? Furthermore, pursuant to the 1996 constitution, people’s deputies were elected for a four-year term, and the current composition of the parliament was elected for five years. Unfortunately, the Constitutional Court kept silent over these and other questions. Respect for and confidence in the judiciary hinge on clear decision-making, and it is unfortunate that the court’s decision on a topic of such national importance left unanswered questions.
Bohdan A. Futey is a judge on the United States Court of Federal Claims in Washington, D.C., appointed by U.S. President Ronald Reagan in May 1987. Futey has been active in various rule of law and democratization programs in Ukraine since 1991. He has participated in judicial exchange programs, seminars and workshops and has been a consultant to the working group on Ukraine’s constitution and Ukrainian parliament. He also served as an official observer during the parliamentary elections in 1994, 1998, 2002, and 2006, and presidential elections in 1994, 1999, 2004, and 2010, and conducted briefings on Ukraine’s election law and guidelines for international observers.
