Constitutional Changes Needed, But Yushchenko's Plan Is Misguided

WASHINGTON, DC -- U.S. Judge Bohdan A. Futey says that President Victor Yushchenko's proposed changes don't solve the problems of executive branch authority or parliamentarians' legal immunity from prosecution.

Bohdan A. Futey is a judge on the U.S. Court of Federal Claims in Washington, D.C., 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 adviser to the working group on Ukraine’s Constitution adopted on June 28, 1996.

The constitutional changes of 2004, the eminent law of Ukraine, resolved the presidential elections and prevented a political crisis (the 2004 Orange Revolution) from turning into chaos. Unfortunately, these changes interlaced the power of the executive and legislative branches, leaving the country in legal turmoil to this day.

To remedy the situation, on March 31, four years into his presidency, President Victor Yushchenko introduced to parliament the draft law “On Amending the Constitution of Ukraine.” The draft alters the entire text of the constitution – the basic law of the land. It would create a system that is somewhat problematic. Additionally, the changes have raised questions about the motivation of presidential aides who drafted them. It is unclear whether the president’s advisers are giving him the best, legitimate advice, and whether they act as “honest brokers.”

Before examining the proposed constitution, one must ask: What is the legal procedure for its approval? In 1997, the Constitutional Court in its decision explained that “the process for approval of a new constitution can only be initiated after ascertaining the will of the Ukrainian people.” This can supposedly be done through a nationwide referendum. The approval of a new constitution must also be made according to adopted rules and procedures, and as provided for in the current constitution.

If adopted, the president’s proposed constitution would introduce a radical change by creating a two-chamber legislature. The Verkhovna Rada will be renamed as the National Assembly, which will consist of the Deputies’ Chamber and the Senate. The question of what type of parliament is best for state development is more of a political and social issue, which needs deep comparative analysis and discussion.

In 1996, when adopting the Constitution of Ukraine, the “founding fathers” could have used a foreign analogue to name the Ukrainian parliament. Instead, they chose century-old Ukrainian history of state building as a cornerstone.

Aside from the creation of a two-chamber legislature, the proposed constitution removes from Article 91 the clause that people’s deputies are guaranteed immunity from prosecution. Further review of the proposed constitution reveals, however, that there is another clause that, in effect, preserves the deputies’ immunity: “A people’s deputy or senator cannot be detained or arrested without the consent of the deputies’ chamber or senate.” This inconsistency does not meet recent calls and demands to cancel deputies’ immunity.

There are provisions in the proposed constitution that one can agree with, for example, the proposed cancellation of the political practice of creating a parliamentary coalition, on which the executive powers existence currently depends. Formation of the coalition failed to add stability and increase efficiency of both the legislative and the executive branches of government.

If the proposed constitution is adopted, there will be several centers of executive power preserved: the Cabinet of Ministers, the president (and his Secretariat) and the National Security and Defense Council. This is unfortunate. Ukraine’s experience of dualism between the president and the prime minister has clearly illustrated that a misbalanced executive branch leads to inactivity and paralysis.

The proposed constitution does not optimize the legal status of the head of state, nor does it establish an effective system of checks and balances. The cabinet, formed by parliament, retains its status as highest executive power. Simultaneously, the president preserves considerable powers, including the right to submit to the senate the candidacies of prosecutor general, chief of the security service and others. The national security council, headed by the president, is preserved. The proposed constitution allows the president to cancel the cabinet’s acts on the issues of foreign policy, defense and security, after consulting with the prime minister. But it is unclear how this is to be performed. It would be expedient to introduce a counterbalance, where certain acts issued by the president are also counter-signed by the head of the government. This would guarantee a certain balance between the two representatives of the executive branch.

Under the proposed constitution, the president will have influence over legislative and judicial branches. The president has the right to dismiss the Deputies’ Chamber. He has the right to appoint (with the senate’s approval) all Constitutional Court judges, as well as, to appoint and dismiss a number of judges of general jurisdiction. This is another attempt to preserve the president’s ability to penetrate into all branches of power, leaving the head of state above all other branches. The principle of checks and balances is not preserved.

It is essential to consider what the proposed constitution means to the judiciary. The new modification which provides life tenure for judges is very positive. This provision will secure judicial independence and impartiality, which is crucial in a democratic state where the rule of law is recognized. The new draft, however, does not ensure that judicial salaries cannot be diminished. Both the current constitution and the draft law foresee the participation of citizens as jurors. Bearing in mind that Ukraine does not have a well-developed concept of jury trials, it would be important to detail jurors’ rights in laws and the constitution. It is also crucial not to delay the implementation of the right to trial by jury guaranteed in the constitution.

In addition, special attention should be given to judicial self-government, which is one of the most important guarantees of judicial independence and impartiality. In Ukraine, the body which is responsible for the financial and technical support of courts is the State judicial administration which currently is part of the executive branch. It should be part of the judicial branch of government in any revised constitution.

The current constitution created a pyramid-like judicial system with the Supreme Court at the top. The proposed constitution envisages a court system “under one umbrella,” where both the Supreme Court and specialized courts will exist at the same level. The proposed draft also introduces elections for judges in the oblasts, supposedly with the aim of bringing better justice to communities. But this proposal is disturbing. There is a real threat that the judges, influenced by their electors, will not produce fair and honest decisions.

Lastly, the draft proposes a method for approving a new constitution, which will weaken the vitality of the main law as a stable legal document.

Generally, it is questionable whether this proposed version of the constitution merits approval. The flaws of the existing constitution are due to the changes made in 2004 coupled with the failure to implement some of the clauses from the 1996 constitution. Moreover, it should be remembered that the adopted 1996 constitution had very positive reviews from the Council of Europe and the Venice Commission for its high level of human rights protection.

Changes to the current constitution, are, of course, needed; however, approval of a new constitution, with a new state order, needs a weighted approach. Ukraine has already experienced the consequences of making hasty changes to its basic law. By trying to solve current problems and patching old holes, plenty of new problems could be created. After careful study of the proposed constitution, it is neither supportable as a better legal document, nor would it help Ukraine function better as a state. Equality among the branches of government will not be established.

It seems that history’s lessons are not learned. Simply making changes does not guarantee improvement. It is important that the advisers who are working to revise the constitution, in addition to good professional training, must have a yearning for national self-identification and a sense of responsibility for the fate of Ukraine.

The constitution needs to provide stability for the Ukrainian state for many years to come. The authors have to clearly understand that the constitution – the main Ukrainian law – has to stimulate national state-building. A constitution that only reflects short-sighted political ambitions will suffer defeat and will not win over support of the Ukrainian people.

Source: Kyiv Post