The current legal situation in Ukraine is extremely uncertain. The problems began following the fraudulent presidential run-off election in 2004, which sparked the Orange Revolution. At that time, the Verkhovna Rada (parliament) passed several amendments to the Constitution on Dec. 8, 2004, known as the political reform, which became effective Jan. 1, 2006. Although the political reform resolved the 2004 presidential election crisis, it was hastily adopted and not thoroughly thought-out. In addition, because the reform was passed as a package, the Rada deputies were either unable or unwilling to examine the effect individual provisions would have on the operation of the government. This was all evidenced by the considerable confusion surrounding the formation of the majority coalition and new government following the March 2006 parliamentary election. In addition, the president’s decree dissolving parliament on April 2, 2007 brought Ukraine to an even deeper constitutional crisis.
The status of the political reform still remains in question. In a decision handed down by the Constitutional Court on Oct. 5, 2005, just prior to the expiration of the nine-year term for most of the judges, the majority of the court stated that any change in the political system of Ukraine should be submitted to and approved by a national referendum. For nearly 10 months after the Oct. 5 decision, however, there was no quorum in the Constitutional Court because parliament refused to swear in the president’s and the Council of Judges’ Constitutional Court appointees and avoided electing its share of justices. Therefore, the court was unable to consider the constitutionality of the rest of the political reform before Jan. 1, 2006, the reform’s effective date.
There was a great deal of disagreement following the March 2006 elections regarding the effect of the reform, particularly as to what the president’s powers were in nominating the prime minister. For example, the president now has 15 days to decide on the nomination of the majority coalition’s candidate for prime minister. There is no indication in the amended provisions, however, as to what would happen if the president does not make a decision within those 15 days. Furthermore, the purpose of the 15 days is unclear. Is it meant to give the president time to consider the prime minister’s qualification? Or is it time to allow the president to negotiate agreements with factions in parliament, which will be contingent on the nomination of the prime minister? This would seem to be the spirit of the law even if it is not the letter of the law.
Also, on Jan. 12, the Rada adopted the Law on the Cabinet of Ministers, which further enlarges the power of the Cabinet of Ministers and reduces the power of the president. In particular, the law gives the Rada the power to appoint the ministers of foreign affairs and defense if the president fails to do so “in a timely manner” and deprives the president of the power to veto the Cabinet of Ministers’ action plans. Furthermore, the law states that deputy ministers are to be appointed by the Cabinet, ministers may not appeal their dismissals in court, and the Security and Defense Council may not influence the Cabinet’s decisions. President Viktor Yushchenko vetoed the bill, alleging that it was contrary to the Constitution of Ukraine, which requires that any transfer of power between branches of government only be implemented by a constitutional amendment. The Rada voted to override the President’s veto, but, in reality, voted a new law. The president, therefore, had the right to use his veto powers again, because it was a different law presented to him.
After the political reform came into effect and Viktor Yanukovych was elected prime minister following the March 2006 elections, President Yushchenko had three options open to him to resolve constitutional issues. Soon after the elections, Yushchenko called for a roundtable discussion with the parliamentary leaders to reach an agreement on the ultimate intention of the political reform to determine its proper meaning. This seemed at least possible at the beginning of the Rada’s term, when the heads of the leading parties, including Yanukovych, held discussions with the president and signed a Declaration of National Unity “to bind the president and government to a common platform setting out coherent and realizable goals in line with the aspirations of the Ukrainian people.” Yanukovych and the Cabinet of Ministers, however, did not abide by the declaration of national unity and instead repeatedly attempted to usurp the president’s power. These actions, as well as Yanukovych’s underhanded efforts to recruit deputies away from their political factions in contravention of the Constitution, made a political solution to the constitutional issues impossible.
Yushchenko’s final option was to allow the people to decide, so he issued a decree dismissing the Rada early, before its five-year term expired. Because of Yanukovych’s and the Cabinet of Ministers’ actions and the Constitutional Court’s inability to render a decision on the extremely pressing constitutional issues, this practically became the president’s only option. Yushchenko was faced with a Cabinet of Ministers passing laws that vastly diminished the president’s powers and Yanukovych threatening to gain a super-majority of 300 votes in the Rada (which would allow him to override presidential vetoes), both accomplished by unconstitutional means. Particularly troubling was Yanukovych creating a super-majority in the Rada by recruiting individual deputies from other factions because Article 83(6) of the Constitution specifically states that a coalition may only be formed by joining political parties or blocs. Quite simply, it appeared that the Cabinet’s and Rada’s aims were to curtail the powers of the presidency and change or ignore the Constitution when it was not to their liking.
Before the political reform came into effect, reforming the judiciary was a top priority for President Yushchenko. During his inaugural address on Jan. 23, 2005, Yushchenko issued a mandate that Ukraine must establish an independent judiciary and a civil society based on the rule of law.
The question remains whether democracy will survive in Ukraine. Now, more than ever, the Constitutional Court must act, and the prime minister, the president, and the Rada will have to respect and adhere to the decisions of the Constitutional Court regarding the dissolution of the Rada, the interpretation of the political reform, and the powers of each branch of government. If not, the country will sink even deeper into legal chaos. For democracy and the rule of law to continue, the Constitution and the checks and balances contained therein must remain in full effect. Democracy is in serious danger in Ukraine right now, and it will take a great deal of work and mutual respect between every branch of government, particularly the Rada and the judiciary, for Ukraine to remain democratic.
Bohdan A. Futey is a Judge on the U.S. Court of Federal Claims in Washington, DC, appointed by President Ronald Reagan in May 1987. Judge Futey 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.
