BRAMA, Jan 9, 2004, 10:00 am ET
Press Release
Comments by Judge Bohdan A. Futey on the recent attempts to amend the constitution of Ukraine
The U.S.-Ukraine Foundation (www.usukraine.org) is providing the following comments by Judge Bohdan A. Futey, Board Advisor to the Foundation, regarding the recent attempts to amend Ukraine's Constitution, as a service of its Legal Sector/Legal Links Project.
Judge Futey serves on the U.S. Court of Federal Claims in Washington, DC and has been active in various Rule of Law and Democratization Programs in Ukraine since 1981, including the Foundation's Constitutional Court Project. He served as an advisor to the Working Group on Ukraine's Constitution, adopted on June 28, 1996.
Judge Bohdan A. Futey (FILE)
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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.[1]
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."[2] 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."[3] 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."[4] 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."[5] 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."[6] 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 . . . "[7] 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."[8] 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 . . . ."[9] 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."[10] 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.[11] 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,[12] 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:
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.
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."
(END)
[1] 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.
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[2] Draft 4105.
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[3] Draft 4180.
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[4] Decision 1-39 (draft 4105).
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[5] Article 5, paragraph 2.
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[6] 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."
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[7] Article 104, paragraph 3.
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[8] Article 69.
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[9] Article 156, paragraph 1.
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[10] Article 5, paragraph 3.
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[11] Article 155.
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[12] 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).
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Note: The U.S.-Ukraine Foundation (USUF) is a not-for-profit 501(c)(3) non-governmental organization established in 1991 to facilitate democratic development, encourage free market reform and enhance human rights in Ukraine. The Foundation's mission is to build peace and prosperity in Ukraine through shared democratic values. USUF is dedicated to strengthening the mutual objectives of both nations and advancing Ukraine as a cornerstone of regional stability, and a full partner in the community of nations.
The Foundation, in pursuing its mission, often serves as an "independent broker of information." As such, the comments above do not necessarily reflect the opinion(s) of the U.S-Ukraine Foundation.
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