Since the adoption of the new Constitution in 1996, Ukraine has made strong strides toward democracy and the rule of law. Now, the Verkhovna Rada must pass a law instituting a constitutional system for the courts of general jurisdiction by June 28, 2001, or the courts will lack a legal basis for their existence. Parliament members must set aside their political differences and reservations, and enact the Law on the Judiciary to avert a serious constitutional crisis.
Given the history of unease and instability in the former Soviet Republics, it is not surprising that when it comes to Ukraine, media focus has been on the negative. Freedom of the press, so highly valued in the new Constitution, has been called into question in journalist Georgy Gongadze’s disappearance and death, and by the emergence of secretly taped conversations allegedly showing President Leonid Kuchma’s involvement. Prime Minister Viktor Yushchenko was sacked recently, despite signs of solid economic improvement. Deputy 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 troubled the United States, for its stake in Ukraine is enormous, both to preserve European stability and to prevent the formation of a new Russian Empire.
But there are positives to report, especially in the all-important area of judicial independence, for the judiciary has shown itself a capable defender of the Constitution and of the democratic ideals the people of Ukraine have embraced.
In the case of Tymoshenko, the Supreme Court ruled on May 15 that prosecutors illegally detained her before the trial, and prohibited attempts to arrest her a second time. In 1999 and 1998, respectively, the court ordered the official registration of all seven candidates in the presidential election and validated the election of Serhy Holovaty as a parliament deputy, despite severe political opposition.
The Constitutional Court, a separately-created court under Ukrainian law, the jurisdiction of which is solely over constitutional issues, has also reinforced the rule of law. In 1997, the court held that the Constitution guarantees the right of citizens to obtain information about themselves, and to prevent unlawful retention and dissemination of that information. In the same year, the court upheld the constitutional prohibition on national deputies holding two government positions at once. 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. And in 1999, it declared the death penalty unconstitutional. These decisions demonstrate healthy judicial independence and a strong endorsement of the rule of law.
The evolvement of Ukraine’s judicial structure represents a significant next step in the process begun by the new Constitution, adopted June 28, 1996. The Constitution was praised by the European Commission on Democracy through Law (Venice Commission) as a document capable of bringing true democracy to Ukraine. It contains transitional provisions mandating the creation of various institutions of government according to principles set forth in the Constitution itself. These provisions require, in pertinent part, the creation of a new system for the courts of general jurisdiction by June 28, 2001. Article 12 of the transitional provisions reads: “The Supreme Court of Ukraine and the High Court of Arbitration of Ukraine exercise their authority in accordance with the legislation of Ukraine that is in force, until the formation in Ukraine of a system of courts of general jurisdiction, in accordance with Article 125 of this Constitution, but for no more than five years.”
Despite the submission of various drafts, parliament has failed to enact the Law on the Judiciary. On May 24, the latest draft failed to pass after its third reading, due to various perceived deficiencies. With the deadline fast approaching, Ukraine faces a constitutional crisis that easily overshadows the obstacles presently hampering its progress as a developing democracy. After June 28, the courts would not have authority to render decisions without new legislation. This would rupture not only the implementation of the judiciary’s role in Ukraine’s fledgling constitutional democracy, but also Ukraine’s fundamental structure of government.
Parliament must pass the Law on the Judiciary despite its problems. Obviously, passage of the most progressive law would be of great benefit to all. The vote’s implication exceeds the structure of the judiciary, however, and extends to the preservation of the new Constitution. The present draft’s deficiencies may be addressed subsequently with amendments. 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 compounding of the problems that have already beset the country. First, 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, halting the current momentum for trust in the judiciary. Second, without judicial oversight, abuses of power by the legislature and the executive branch would go unchecked. Tendencies toward the law of command, or “telephonic justice,” utilized in the Soviet era, may resurface. An emasculated judiciary would bring hardship and lack of freedom to the people.
The crisis would also extend beyond the domestic realm and pose problems for Ukraine’s economic relationship with the international community. Foreign investment would be expected to diminish greatly because business could not rely on the courts to protect its rights. In addition, Ukraine’s standing with international organizations will be threatened. Ukraine has pledged to these organizations the completion of reforms, 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 new codes will be more difficult.
To build a nation on the ideas of democracy and the rule of law requires principled action and political courage. The political parties and factions in parliament must now set aside their immediate interests and eschew the temptation to hold this legislation hostage. Only when the overall constitutional system of government in Ukraine is considered paramount will its problems of abuse and corruption be properly rectified. It is up to the Rada to act, before the absolutely fundamental independence and efficacy of the judiciary is damaged irreparably, and time is of the essence.
Bohdan A. Futey is a Judge of the United States Court of Federal Claims. Judge Futey is actively involved in with Democratization and Rule of Law Programs in Ukraine and Russia, and is an advisor to the International Foundation for Election Systems.
Editor’s note: Since the above article was written [June 5], it has become clear that the Rada will almost certainly not have time to enact the Law on the Judiciary before the June 28 deadline. In an interview published in the weekly Zerkalo Nedeli on June 16, Supreme Court Chief Justice Vitaly Boiko stated that in order to provide a temporary solution to the problem, a package of 10 laws that would bring existing legislation on the judiciary into line with the requirements of the Constitution has been passed in first reading. Meanwhile, the Forum Web-site reported June 14 that the Rada Legal Policy Committee is planning to finalize a new draft of the Law on the Judiciary by June 20.
