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Judge Bohdan A. Futey: "Rule of Law in Ukraine: Forward or Backward?"
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The Constitutional Court of Ukraine has recently issued two decisions regarding the conformity of proposed changes to the political system in Ukraine (registration No. 4105 and 4180), with provisions of Articles 157 and 158. Both drafts propose that the President be elected by the Parliament instead of direct election by the people as provided by the current version Article 103. The drafts, however, differ in their suggested effective date and implementation.
Draft No. 4105 suggests that the people directly elect the President in October 2004 as per the present Constitution. The President would serve until a new President is elected by the Parliament "within a month after the day of the opening of the first meeting of the [Parliament] elected in 2006." On the other hand, Draft No. 4180 proposes that the Parliament elect the President in October 2004 for three years. Parliament's term will then be extended by an additional year, and the new President shall be elected again by the Parliament "within a month after the day of the opening of the first meeting of the [Parliament] elected in 2007." The President and the Parliament will then serve complete five-year terms.
When analyzing these changes, the court held that the proposals were in compliance with Articles 157 and 158. Specifically, the court reasoned that "the change of the procedure of presidential election suggested in the Bill is not aimed at the abolition or restriction of human and citizens' rights and freedoms." Relying on paragraph 2 of Article 5, the court also reasoned that the people exercise their power through both direct and indirect forms of democracy.
It is noteworthy that the court relied only on Article 5 to support its position that the President can be elected by the Parliament because the people can "exercise power directly and through bodies of state power and bodies of local self-government." The court appears to have reasoned that the rights of the people were not being abridged because the Constitution provided for indirect exercise of power along with direct forms of democracy. The court's failure to consider the limitations in Articles 69, 103, and 104, lead to a skewed resolution of this matter.
The current version of Article 103 provides, inter alia, that "[t]he President of Ukraine is elected by the citizens of Ukraine for a five-year term, on the basis of universal, equal and direct suffrage, by secret ballot." Article 104, which was not mentioned in the court's majority opinion, expressly provides that the President shall take an oath affirming that he was "elected by the will of the people . . . " Reference to this constitutional provision, however, was made in Judge Skomorokha's dissenting opinion. Article 69 states that "[t]he expression of the will of the people is exercised through elections, referendum, and other forms of direct democracy." It is, therefore, clear that the "will of the people" is defined in Article 69, and not Article 5. If the authors of the Constitution had intended that the President be elected through any exercise of the "power of the people," they could have explicitly provided for that in Article 104. They did not do so. Accordingly the authors intended that the president be elected by the "will of the people."
Further, by holding that it was constitutionally permissible for the Parliament to elect the President, the court deprived the citizens of Ukraine of the right to exercise their will through "direct democracy." While at first glance it may appear that any violation of Article 69 could be redressed through an additional amendments, a significant problem arises. Article 69 falls under "Chapter III - Elections. Referendum." According to Article 156, however, any amendment to an article under Chapter III, must be approved by "an All-Ukrainian referendum . . . ." The regular procedures set forth in Article 155 for amending the Constitution are, therefore, inapplicable. In this respect, one cannot ignore that "[t]he right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials." The authors of the Constitution perceived the direct expression of the will of the people as such a fundamental right that it could not be taken away from the citizens without their explicit approval.
All the above-mentioned constitutional limitations preclude the election of the President by means other than direct election by the people, be it in 2004, 2006, or 2007. An additional problem, however, is posed by proposal 4180, which would lead to a self-extension of the current Parliament's term until 2007. As discussed in Judge Shapoval's and Judge Vozniuk's dissenting opinions, an extension of the Parliament's current term would violate Articles 38, 69, 70, 71, and 83.
As the end of the current session of Verkhovna Rada nears, there is an impending sense of urgency for those seeking to amend the Constitution so that it is in effect for the next presidential elections scheduled for October 2004. The current procedure for amending the Constitution requires that the amendments first be approved by a "majority of the constitutional composition of the Verkhovna Rada of Ukraine" and then by "no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine" at its next regular session. Therefore, if the Parliament does not vote on these "so-called" amendments prior to its upcoming recess, these amendments could not constitutionally apply to the October 2004 elections. Further, any suggestion that a simple majority can ratify a change in the Constitution is belied by the express language of Article 155.
In 1998, the Constitutional Court in considering the law on election of deputies declined to review the constitutionality of the provision requiring the political parties and electoral blocs to receive a minimum of four percent of the popular vote in order to be elected to the Parliament. Specifically, the court reasoned that issue presented a political question which belongs to the jurisdiction of the Parliament itself, and not the court. This decision serves as precedent for the court refusing to consider political questions, however, the recent decisions did not allude to this important precedent. Although the court's power to review the proposed changes derives from Article 159, the court must be careful not to exceed its authority and issue opinions on political questions.
Finally, proposed Article 126, which reduces the term of judges from life appointments to a 10 year term, removes key safeguards of judicial independence. The proposal does not enhance the principle of separation of powers and limits judicial autonomy.
In conclusion, it should also be noted that the proposals have not been viewed favorably in the international community. For instance, the Venice Commission in its opinion on the proposals stated:
<i>The Commission [recognizes] and welcomes the efforts in Ukraine to reform the system of government in a way bringing Ukraine closer to European democratic standards. The precise solutions chosen in the various drafts however do not yet seem to have attained that aim and would introduce other amendments to the Constitution that would appear to be a step backwards.</i>
A member of the committee also warned: "A society where rights are not secured and the separation of powers [not] established has no constitution at all."
These statements, in and of themselves, raise serious concerns about the progress of the Rule of Law and democratization in Ukraine. When coupled with the timing of the proposed constitutional changes, the severity of the situation becomes more pressing. Although constitutional reform may indeed at some point be beneficial, constitutional reform proposed on the eve of presidential elections is troubling. As discussed above, the problem has been further compounded by the Constitutional Court's decisions. The resolution of this situation involves the recognition that the Rule of Law stands above political motivations, and then and only then, will Ukraine avoid a damaging "step backwards."
 Although the proposed changes seek to amend approximately thirty articles in the Constitution, these comments mostly focus on the changes to Article 103 and accompanying transitional provisions.
 Draft 4105.
 Draft 4180.
 Decision 1-39 (draft 4105).
 Article 5, paragraph 2.
 Article 103, paragraph 1. The new proposal reads as follows: "The President of Ukraine shall be elected by the Verkhovna Rada of Ukraine. The President of Ukraine shall be deemed elected if no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine have voted in favor thereof, by secret ballot."
 Article 104, paragraph 3.
 Article 69.
 Article 156, paragraph 1.
 Article 5, paragraph 3.
 Article 155.
 The United States Supreme Court has likewise held that the American Judiciary lacks jurisdiction to review political questions. See Baker v. Carr, 369 U.S. 186 (1962).
[Editor: Judge Futey is a federal judge on the US Court of Federal Claims in Washington, D. C. and has been active in Rule of Law and Democratization programs in Ukraine since 1981. He served as an advisor to the Working Group on Ukraine's Constitution, adopted on June 28, 1996.]
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