"THE ACTION UKRAINE REPORT"
In-Depth Ukrainian News, Analysis, and Commentary

"The Art of Ukrainian History, Culture, Arts, Business, Religion,
Sports, Government, and Politics, in Ukraine and Around the World"

"THE ACTION UKRAINE REPORT" Year 04, Number 74
Action Ukraine Coalition (AUC), Washington, D.C.
morganw@patriot.net, ArtUkraine.com@starpower.net
Washington, D.C.; Kyiv, Ukraine, FRIDAY, May 7, 2004

INDEX OF ARTICLES

1. DISSENTING OPINIONS OF JUDGE BOHDAN A. FUTEY
"Rule of Law in Ukraine: A Step Forward or Backward?"
Briefing By Judge Bohdan A. Futey
Senior Judge, United States Court of Federal Claims
Radio Free Europe/Radio Liberty (RFE/RL)
Washington, D.C., Thursday, April 29, 2004
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THE ACTION UKRAINE REPORT-04, No. 74 ARTICLE NUMBER ONE
Politics and Governance, Building a Strong, Democratic Ukraine
http://www.artukraine.com/buildukraine/index.htm
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1. DISSENTING OPINIONS OF JUDGE BOHDAN A. FUTEY
"Rule of Law in Ukraine: A Step Forward or Backward?"

Briefing By Judge Bohdan A. Futey
Radio Free Europe/Radio Liberty (RFE/RL)
Washington, D.C., Thursday, April 29, 2004

RFE/RL - Ukraine stands at the crossroads of either integration and
acceptance into the European and International communities, or reversion
to a country where the Rule of Law is selectively applied and undermined
for the benefit of those who possess power.

Nowhere is this more evident than through the attention which has been
given to the proposed constitutional and political reforms, to the decisions
of the Constitutional Court of Ukraine, to the events which transpired and
are transpiring in the Verkhovna Rada (parliament), and to the election
adjudication controversy which could indefinitely entangle the election of
the President in legal proceedings and cloud its legitimacy.

Judge Futey, who has just returned to the U.S. from Ukraine, will discuss
these issues and their potential impact on this major U.S. ally in the war
on terrorism.

Judge Futey was nominated Judge of the United States Court of Federal Claims
on January 30, 1987, and entered on duty May 27, 1987. Judge Futey formerly
served as Chairman of the Foreign Claims Settlement Commission of the United
States from May 1984 to his appointment to the Federal bench. Judge Futey is
actively involved with Democratization and Rule of Law programs organized by
the Judicial Conference of the United States, the Department of State, and
the American Bar Association in Ukraine and Russia.

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. Judge Futey served as an official observer during the
Parliamentary elections in 1994 and 1998, and Presidential elections in
1994, and conducted briefings on Ukraine's Election Law and guidelines for
international observers. [RFE/RF]

RFE/RL BRIEFING BY JUDGE BOHDAN A. FUTEY:

As we reflect on the events of 2003 and apprehensively ponder the
possibilities of 2004, Ukraine stands at the crossroads of either
integration and acceptance into the European and International Communities,
or reversion to a country where the Rule of Law is selectively applied and
undermined for the benefit of those who possess power. The manner in which
Ukraine has undertaken, and will undertake, resolution of critical legal and
political issues, will decisively entrench its ascent or descent from the
current position which it occupies.

Ukraine must make great efforts to be cognizant of these repercussions, for
during a presidential election year, its approach will not go unnoticed, and
every legal and political maneuver will be highly scrutinized. Nowhere is
this more evident than through the attention which has been given to the
recent decisions of the Constitutional Court of Ukraine, to the recent
events which transpired in the Verkhovna Rada (Parliament), and to the
election adjudication controversy which could indefinitely entangle the
election of the President in legal proceedings and undermine its legitimacy.

With the adoption of its Constitution on June 28, 1996, Ukraine took a step
toward joining the community of democratic nations that place the Rule of
Law and a free market economic system among its highest values. The
adoption of the Constitution represented the end of one period in Ukraine's
constitutional development process and it also marked the beginning of a
second period, one where "enabling" legislation was to implement the rights
guaranteed by the Constitution. The enabling legislation corresponding to
these rights would determine the quality and character of this Constitution
not only as the supreme law of Ukraine but also as the documentary guarantor
of the basic rights for all Ukrainians.

To ensure that the Constitution and its enabling legislation do not attain
the characterization of "paper tigers," the importance of enforcing judicial
decisions cannot be overstated; it goes part and parcel with the
establishment of a credible, respected and independent judiciary. Nearly
all governments enforce the decisions of their judicial systems. In the
United States, the judiciary depends upon the executive branch to enforce
court decisions. The strongest argument, however, in favor of enforcing
judicial decisions in an emerging market economy such as Ukraine is
economic.

Putting aside the moral implications of failing to enforce judicial
decisions, domestic and foreign investors would be rightfully hesitant to
engage in financial transactions in a country that failed to adequately
protect an investor's rights. This hesitancy could have disastrous effects.

Therefore, it is imperative that Ukraine enforce its decisions, and enable
the courts to provide needed stability in commercial transactions by
assuring domestic and foreign investors that judicial decisions will be
enforced.

The beneficial affects of enforcing judicial decisions are for all practical
purposes eviscerated unless the underlying decisions are perceived to be the
product of an objective and impartial judiciary. The aim of any judicial
system, either Continental (Civil Law) or Anglo-Saxon (Common Law), is to
provide stability through the consistent application of the law and
adherence to the Constitution. The whimsical and contradictory application
of judicial rulings has far reaching negative affects.

It instills uncertainty and confusion not only in legal circles, but in the
people of Ukraine as well as in the international community. It removes
the cloak of respect which veils an independent judiciary and ensures that
skepticism accompanies each judicial decision. All involved, or
contemplating involvement, with Ukraine are deprived of the confidence
attendant with the even-handed application of justice in accordance with
constitutional safeguards.

Unfortunately, such concerns are not unfounded; and, the Constitutional
Court of Ukraine lies at the center of this controversy. The Constitutional
Court derives its powers from Chapter XII of the Constitution of Ukraine,
which explicitly designates the Constitutional Court as "the sole body of
constitutional jurisdiction in Ukraine." [1] The Court's mandate entails
providing "the official interpretation of the Constitution of Ukraine and
the laws of Ukraine." [2] The Court is responsible for hearing and deciding
issues involving conformity of laws, presidential decrees, and other legal
acts with the Constitution. Decisions of the Court are final; Article 150
of the Constitution establishes their authority:

"On the issues envisioned by this Article, the [Court] adopts decisions that
are mandatory for execution throughout the territory of Ukraine, that are
final and shall not be appealed." [3] Further, as provided in Chapter
XIII, Article 159, the Court maintains a significant role in the amendment
process: "[a] draft law on introducing amendments to the [Constitution] is
considered by the [Verkhovna Rada] upon the availability of an opinion of
the [Constitutional Court] on the conformity of the draft law with the
requirements of Article 157 and 158 of this Constitution." [4]

Since the Court's inception on January 1, 1997, its Judges have occupied a
position that occurs once in the development of a nation. They have had the
unique opportunity to shape the law and the legal system in the same manner
as Chief Justice Marshall did in the United States in "Marbury v. Madison"
two hundred years ago.[5] Initially, the Constitutional Court lived up to
the great challenge it had undertaken. "In Re Residents of City of Zhovti
Vody,"[6] the Court interpreted three articles of the Constitution with the
cumulative effect of affirming that citizens shall have access to the courts
for the protection of rights.

Further, in the "Ustymenko" case, the Court held that: 1) an individual has
a right to obtain information about oneself, regardless of whether it is in
possession of national or local governmental authorities; 2) certain
provisions of Ukraine's law on Information must be understood as to
prohibit the collection of any information, retaining it, and/or
disseminating it without an individual's consent.[7] In addition, in 1998
in "Re A Law on Election of Deputies to the Verkhovna Rada of Ukraine"
the Court declined to address the provision of the election law establishing
a four percent threshold for party representation in the Parliament, because
its resolution would entail deciding a "political question." [8]

Most pertinent to the present controversy is the case "Re A Dual Mandates of
Verkhovna Rada Deputies." The Court held in 1997 that National Deputies
elected after June 8, 1995, may not simultaneously hold two state
positions.[9] The Court reasoned that the Constitutional Agreement, which
first established the prohibition against dual mandates, was in place as of
June 8, 1995, and, therefore, any National Deputy elected after said date
was bound by its terms. The Court, however, excluded National Deputies who
were elected between March 27, 1994, and June 8, 1995. The Court explained
that those National Deputies could hold dual mandates because at the time
they were elected there was no such prohibition.

Beginning in November 2003, however, the Constitutional Court departed from
the legitimacy and logical consistency which had permeated its early
decisions. The Constitutional Court issued two vastly criticized decisions
regarding the conformity of proposed changes to the manner in which the
President is elected and the duration of his initial term (registration No.
4105 and 4180), with provisions of Articles 157 and 158.

Both draft laws No. 4105 and No. 4180 proposed that the President be elected
by the Parliament instead of direct election by the people as provided by
the current version of Article 103. The drafts, however, differed in their
suggested effective date and implementation.[10] Draft No. 4105 suggested
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." [11]

On the other hand, Draft No. 4180 proposed that the Parliament elect the
President in October 2004 for three years. Parliament's term would then
be extended by an additional year, and the new President would 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." [12] The President and
the Parliament would then serve complete five-year terms.

When analyzing the proposed changes to the Constitution, the Court held that
the proposals complied 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." [13] 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." [14] 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 equally applicable
provisions of the Constitution, specifically the limitations in Articles 69,
103, and 104, led to its 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." [15] 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' . . . "[16] 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.'" [17] Article 5 does not make any reference
to the "will of the people . . . ." It, therefore, cannot be disputed 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 of the Constitution intended that the President
be elected by "the will of the people."

Further, by holding that it was constitutionally permissible for the
Verkhovna Rada to elect the President, the Constitutional Court deprived
the citizens of Ukraine the right to exercise their will through "direct
democracy." Article 69 provides that the "will of the people [may be]
exercised through elections [and] referendum[s] . . . . " It is not just any
"election," however, which will satisfy Article 69's requirements. It is a
basic tenet of statutory construction that the court's; role is to give
meaning to every word and phrase.[18]

The final clause of Article 69 limits the "will of the people" to "forms of
direct democracy." Whether it be through "elections, referendum, or other
forms of direct democracy," the import of Article 69 is clear; the "will of
the people" can only be exercised through a form of direct democracy.
The election of the President by the Verkhovna Rada is not a form of
direct democracy, and, therefore, unmistakably violates Article 69.

While at first glance it may appear that any violation of Article 69 could
simply be redressed through additional amendments, a significant problem
arises. Article 69 falls under "Chapter III - Elections. Referendum."
According to Article 156, any amendment to an article under Chapter III,
must be approved by "an All-Ukrainian referendum . . . ." [19] 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." [20] 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 draft law
No. 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.

On December 30, 2003, the Constitutional Court's transgression continued and
attracted additional international attention when it issued its decision
holding that it was constitutionally permissible for President Kuchma to run
for a third presidential term. With the principles enunciated in Chapter
XII of the Constitution in mind, as well as Court's decision in "Re Dual
Mandates of Verkhovna Rada Deputies," the recent decision clearing the way
for President Kuchma to seek a third term is unsupportable.

The Constitution provides that the Court's decisions are binding. The
Court's decision concerning the prohibition on dual mandates was not
overturned, and, therefore, remains on the books as a ruling to be adhered
to. While the dual mandates decision was referenced by the Court in the
latest decision, its holding was limited to the proposition that laws could
not be retroactively applied.

Nevertheless, the dual mandates decision and the "third term" decision are
logically inconsistent. In the dual mandates decision, when examining which
law to apply to disputes concerning National Deputies, the Court looked to
the constitutional norm in place at the time the individuals were elected.
Applying this decision and its reasoning leads to the conclusion that the
constitutional norm in place at the time President Kuchma was elected
should be enforced.

The Constitution as adopted in 1996 and prior legislation addressing
presidential term limits have consistently limited the President to two
terms: 1978 Constitution of Ukrainian SSR as amended on July 5, 1991
(Article 114/2); 1991 Law on the President; 1994 Law on Election of the
President; and 1995 Constitutional Agreement, which was reached between the
Parliament and President Kuchma, and signed by President Kuchma. For
instance, the 1994 Law on Elections of the President, Article 2, Section 2,
under which President Kuchma ran for the first time and was elected,
provides:

In order to be elected as the President of Ukraine a person must be a
citizen of Ukraine with the right to vote, not younger than 35 years of
age, who has resided in Ukraine no less than 10 (including the last
five) years, and speaks the state language. "One and the same person
cannot be elected President of Ukraine for more than two terms."[21]

The applicable law as well as the constitutional norm in place at the time
President Kuchma was elected, as well as at the time President Kuchma ran
for reelection in 1999, limited the President to two terms. This would have
been the inescapable conclusion if the Court had engaged in a
straightforward application of its prior rulings. For one reason or
another, such an exercise did not take place. At this point any attempt to
reconcile the two decisions would be an exercise in futility. The
constitutional norm was not uniformly applied. The Court applied a
"different standard" to National Deputies in 1997 than it is now applying to
President Kuchma.[22]

Putting the Constitutional Court's decisions aside momentarily, another area
of concern deserves immediate attention - - adjudication of election law
disputes. The Verkhovna Rada adopted a new election law for Rada deputies
on September 24, 1997, and elections were conducted under this law on March
29, 1998. The law set forth both legal and administrative remedies for the
resolution of electoral disputes. The right to file an action in the courts
is clearly set forth in Article 15 of the law, and reflects a desire on the
part of the Verkhovna Rada that such disputes should ultimately be resolved
in the courts of law. This is consistent with the general principles of
Ukraine's Constitution.

In practice, however, the manner in which the courts have addressed such
disputes only highlights the weaknesses inherent in Ukraine's current system
of Courts of General Jurisdiction. First, although the Constitutional Court
considered the constitutionality of the new election law and upheld many of
its provisions, the Court held that a number of provisions of the law were
not in compliance with the Constitution, including the provisions as to the
resolution of electoral-related disputes by the administrative process. The
Court explained that the right to file a claim in court is guaranteed by the
Constitution.[23]

In addition, during Parliamentary elections of 1998 and 2002, the Law on
Elections of deputies allowed candidates to challenged the election
procedure and election results. As a result, the courts were overloaded
with disputes. In 1998, the Courts of Ukraine of all levels reviewed 162
disputes by participants in the election process, while in 2002 the courts
reviewed more than 500 disputes.[24] Adjudication of these disputes
revealed the shortcomings of the system.

The courts' resolution of the enormous number of election disputes was
characterized by inconsistent rulings and failure to take jurisdiction, as
well as the improper taking of jurisdiction, among courts of first instance,
as well as reviewing courts, and contributed to confusion among the courts,
parties and the public. In fact, some cases were heard in seemingly
improper venues. That is, they were heard in courts outside of the
geographic area in which the alleged acts took place.

For example, in 1998, the election of the mayor of the City of Odesa
was challenged in the City of Kirovohrad, which is in a different oblast.
The Kirovohrad Court invalidated the election. Likewise, a court in the
city of Lviv recently invalidated the June 29, 2003 election of the mayor
in the City of Mukachevo; again, a city in a different oblast. It appears
that someone in these instances selected a forum that would most likely
produce the results he/she was seeking.

In some cases, courts also voided election results when there was apparently
insufficient evidence that alleged wrongdoing would have affected the
outcome of the elections, which is the standard set forth for voiding
elections under the election law. Conflicting news accounts of court
decisions, coupled with the lack of published written opinions by Courts of
General Jurisdiction, have only added to the confusion, and have prevented
an accurate summary of the process in general.

As a critical presidential election approaches, it is worthwhile to examine
the specialized administrative courts created by the Constitution and as
implemented by the Law on the Judiciary, adopted in February 2002, to
adjudicate election disputes. The court will consist of approximately sixty
judges. As of December 2003, however, only nine judges have been voted on
by the Verkhovna Rada. In addition, the procedural rules for filing and
maintaining a cause of action have not been put into place.

Given the magnitude of the work which remains to be completed prior to
the specialized court being considered a fully functional tribunal, one
cannot help wonder whether the court will be operational in time to deal
with any disputes which may stem from the upcoming presidential election.

The importance of resolving the above-mentioned electoral issues stems from
the fact that the right to vote in a democratic society is one of the most
precious of all individual rights. The United States Supreme Court has
endorsed this proposition: "No right is more precious in a free country
than that of having a choice in the election of those who make the laws
under which as good citizens they must live." [25] Voters trust and
confidence are of great significance.

If citizens cannot be assured of a fair and honest election process, they
will have no faith in other components of the political process. Social
stability rests on the individual's confidence in the electoral process to
function correctly in every respect. Courts must ensure that the process
is implemented in a proper way and must guarantee fair elections.

Under the theory of Separation of Powers (Article 6), any default on the
part of the Judiciary would ideally be counterbalanced by an effective and
independent Legislative branch. Recent events cast doubt on whether
Parliament is capable of fulfilling that role. As the end of the last
session of Verkhovna Rada neared, there was an impending and open sense of
urgency for those seeking to amend the Constitution, so that the amendments
would be 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.[26] Therefore, if the Parliament did
not vote on these so-called amendments prior to its recess, these amendments
could not constitutionally apply to the October 2004 elections.

The procedures set forth in the Constitution cannot be cast aside lightly,
and must gain increased importance during a period where usurpation of power
seems imminent. The leadership of the Verkhovna Rada, however, was
determined to vote on the amendments; ultimately, such tactics resulted in
the utilization of a crude hand vote. All aspects of that incident remain
heavily contested. In addition, any suggestion that the proposed amendments
could pass with the support of a mere simple majority of the Verkhovna Rada
is belied by the express language of Article 155.

Moreover, it appears that rushed political reforms have distracted the
Verkhovna Rada from completing its long-outstanding legal reform. The
Parliament must keep in mind its commitment to enact the Civil Procedural
Code,[27] the Criminal Procedural Code, as well as other procedural codes,
and eliminate the contradictions between the Commercial and Civil codes
which became effective as of January 1, 2004.

Trial by Jury guaranteed by the Constitution and the Law on the Judiciary
must also finally be implemented. Further, as was discussed above, the
lack of enforcement of judicial decisions by the executive must be
addressed. This reform must begin with the Parliament itself where several
deputies to this day disregard the Court's 1997 decision and maintain dual
mandates.

The Verkhovna Rada has given some indication that it is capable of
fulfilling its obligations as an independent branch of government. On
February 3, 2004, the Verkhovna Rada voted to remove the provisions
pertaining to the election of the President by Parliament, and provisions
reducing the term of judges from life appointments to a ten-year term, from
the text of the draft laws.

It is important to note this subtle distinction, however, that such reform
is not "per se" unconstitutional. The constitutionality of the proposed
amendments is a matter separate and distinct from the implementation of a
process which should occur before such reform is instituted. It is
imperative that extensive discussions and debates be undertaken by those
knowledgeable in such affairs to ensure that the reforms are necessary and
beneficial to advancing democratic ideals. Any reform, constitutional or
political, that is placed on an expedited schedule and is coerced through
under the pressure of time constraints does not allow for a thorough
ventilation of pertinent issues and concerns.

In conclusion, it should also be noted that the proposed amendments have not
been viewed favorably by the international community. For instance, in
early December 2003, 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. Similar sentiments and criticisms were reflected in the January
27, 2004, Council of Europe, Parliamentary Assembly, Report: Committee on
the Honouring of Obligations and Commitments by Member States of the
Council of Europe (Monitoring Committee).

The international outcry, in and of itself, raises serious concerns about
the progress of the Rule of Law and democratization in Ukraine. Although
constitutional reform may indeed at some point be beneficial, the timing of
the proposed constitutional changes, on the eve of presidential elections,
is troubling and adds to the severity of the situation. The problem has
been further compounded by the Constitutional Court' failure to assert its
independence and failure to render impartial decisions.

Officials at the highest levels of government have commented on the
arbitrariness of the Constitutional Court' decisions.[28] In addition, the
recent electoral debacle in Mukachevo received heavy criticism and has
been viewed as a presage of things to come in the upcoming October 2004
presidential elections. It is apparent that these external manifestations
of questionable conduct stem from a pervasive failure to recognize that
the Rule of Law must stand above political motivations.

The actions of those responsible for creating the underlying tensions,
however, have fortunately not yet led to irreversible consequences. The
provisions of the proposed constitutional amendments which limited judicial
terms to ten years and which placed the election of the President in the
hands of the Verkhovna Rada were removed from consideration.

On April 8, 2004, the proponents of the constitutional amendments which
would have stripped the president of most of his meaningful powers ran
squarely into the thrust of constitutional safeguards when they were unable
to muster the requisite 300 votes. In this regard, reports have circulated
that 50 members of Parliament have petitioned the Constitutional Court
to allow an immediate second vote on the proposed constitutional
amendments.[29]

The Constitutional Court, however, needs to regain its bearings and
recognize that such a vote is precluded by Article 158 of the Constitution
of Ukraine. Lastly, with a full half year still remaining before the October
31, 2004 presidential elections, appropriate precautions can be put in place
to prevent an escalation of the hooliganism and fraud that occurred in
Mukachevo to a national level, and ensure that Mukachevo is viewed as an
aberrant and isolated incident. The President's commencement of an
investigation into the occurrences at Mukachevo is certainly a step in the
right direction, but by no means should it be the only step.

There are visible signs that preliminary measures are being implemented and
that some semblance of order and stability remains in tact. The upcoming
year, however, will truly determine if Ukraine will move forward as a
democratic nation supporting a civil society which protects individual
rights under the Rule of Law, or will take a "step backwards" as the Venice
Commission recently noted. To avoid the latter, the Judiciary must maintain
its independence and dedicate its efforts towards the former. Put simply,
judges will not be respected until they respect themselves.

Ukraine's future depends on an independent judiciary. Whether the focus
ultimately lands on the Constitutional Court or the Courts of General
Jurisdiction under the Supreme Court, the crucial legal issues and reforms
currently pending must be settled way ahead of the October 31, 2004
presidential election, or they may produce obstacles to the peaceful and
constitutional transition of presidential power.

It is not too late for judges to fulfill their constitutional mandate.
Rather than speculate about a possible unfortunate sequence of events,
there is a general hope that the clouds over Ukraine's political sphere will
clear, and 2004 will be remembered for Ukraine's "step forward." (END)
----------------------------------------------------------------------------
FOOTNOTES:

[1] Constitution of Ukraine (Ukr. Const.), Article (art.) 147.
[2] Id.
[3] Id., art. 150.
[4] Id., art. 159.
[5] See "Marbury v. Madison," 5 U.S. (1 Cranch) 137, 2 L. Ed. 60
(1803) (establishing the doctrine of judicial review).
[6] "Visnyk Konstytutsiinoho Sudu Ukrainy" 1 (1998):34.
[7] "Re K.H. Ustymenko," "Visnyk Konstytutsiinoho Sudu Ukrainy" 2
(1997):31.
[8] This decision is similar to that reached by the United States
Supreme Court in "Baker v. Carr," 369 U.S. 186 (1962).
[9] "Re Dual Mandates of Verkhovna Rada Deputies, "Visnyk
Konstytutsiinoho Sudu Ukrainy" 2 (1997):5.
[10] 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.
[11] Draft 4105.
[12] Draft 4180.
[13] Decision 1-39 (draft 4105).
[14] Ukr. Const., art. 5, paragraph (para.) 2.
[15] Id., art. 103, para. 1 (emphasis added). The suggested
proposal read 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."
[16] Id., art. 104, para. 3.
[17] Id., art. 69 (emphasis added).
[18] "Williams v. Taylor," 529 U.S. 362, 404 (2000).
[19] Ukr. Const., art. 156, para. 1.
[20] Id., art. 5, para. 3.
[21] 1994 Law on Elections of the President, Article 2, Section 2
(emphasis added).
[22] The actual name of the President in this instance is not
important. The same analysis and standards would apply to any person in
President Kuchma's position.
[23] Re Law of Ukraine "On Parliamentary Elections in Ukraine,
Visnyk Konstytutsiynoho Sudu Ukrainy 2" (1998).
[24] Speech by Mykhailo Ryabets, Head of the Central Election
Commission of Ukraine, Munich, February 15, 2002.
[25] "Westberry v. Sanders," 376 U.S. 1 (1964).
[26] Ukr. Const., art. 155.
[27] The Civil Procedural Code was passed by the Verkhovna Rada
and signed by the President, and will go into effect on January 1, 2005.
[28] Interview by ICTV with Speaker of the Verkhonvna Rada
Volodymyr Lytvyn (Apr. 18, 2004).
[29] Ukr. Const., art. 150 ("[I]ssues are considered on the
appeals of . . . no less than forty-five National Deputies of Ukraine...."
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