The Ongoing Battle to Protect the Rule of Law in Ukraine

Those who drafted and ratified Ukraine’s Constitution in 1996 realized something rather important: they understood that one of the lynchpins of democracy is respect for the rule of law. They realized that a system where one person’s whims or a specific group’s interests can overcome the written law is not, in fact, a democracy. For the past fifteen years, Ukraine’s Constitution has guaranteed that "in Ukraine, the principle of the rule of law is recognised and effective." The Constitution also divides up the state power of Ukraine into three distinct bodies—the legislature, executive, and judiciary—and requires that these bodies only exercise their power within the proscribed limits. Finally, in trials, the Constitution guarantees numerous rights, such as the right of all participants to have "equality before the law and the court, " and the right to present evidence, to have an open trial, and to have a trial conducted according to the laws of the country.

As the drafters of the Constitution realized, without these guarantees, democracy is ineffective. Without a stable and consistent application of law, whimsical and contradictory judicial rulings will instill uncertainty and confusion and destroy any trust law-abiding citizens may have in an impartial legal system. Without the rule of law, a country becomes divided into those who are above the law and those who are below it, or into those who write the rules and do what they want and those who are expected to follow the rules. Without a judiciary to ensure that individual liberties such as free speech, freedom of the press, and due process of law are respected, the rights of minorities and of unpopular groups may be diminished. Without a judiciary that is truly independent, there can be no respect for the rule of law. Without these protections, Ukraine’s continued democratic, political and economic development as it seeks to move closer to European standards of living will be negatively impacted.

Two recent events have shattered confidence in whether or not the rule of law and these other protections are being upheld in Ukraine.

First, the trial and imprisonment of former Prime Minister Yulia Tymoshenko have created, at the very least, the appearance of impropriety, which has tarnished the image of Ukraine’s legal system and judiciary. The potential violations of procedural and Constitutional rules are numerous, and her imprisonment was swiftly questioned by countries and organizations and leaders across the world, including former President Leonid Kravchuk, former chairman of Parliament Arseniy Yatsenyuk, former head of the Security Service Valentyn Nalyvaichenko, numerous members of Parliament and executives of the European Union, the United States Department of State, and United States Senators John McCain and Richard Lugar. Those procedural violations raise questions far beyond the guilt or innocence of one specific individual, who just happens to be the leader of the opposition; they raise questions about whether the fundamental protections of liberty enshrined in the Constitution protect everyone, or merely the ruling elite and the politically connected. In the midst of these potential violations, one must ask where Ukraine’s legal community is and where the Supreme Court’s plenum is. In the United States, an array of non-governmental organizations, such as the American Bar Association, help to ensure that proper procedures are followed, but where are these neutral organizations in Ukraine? Furthermore, Ukraine’s attempts to integrate itself into the larger European community are extremely hampered by the taint of illegality.

Second, the passage in July 2010 of the new Law on the Judiciary and the Status of Judges highlights a weakened, overly political judiciary. That law contemplates a system in which the President can liquidate courts, in which the Supreme Court has lost power to lower courts that decide whether or not to refer cases to the Supreme Court, in which the High Council of Justice exercises a politicized role, and in which the Constitution’s guarantee of a right to a jury trial continues to be ignored. The weakening of the judiciary and its growing subservience to the executive branch reduce the protections that the Constitution promises to all Ukrainians.

With these recent events, Ukraine finds itself at the brink, with its image diminished. Ukraine must ask itself what exactly the Constitution means to the country. If the Constitution is what it says it is—"the highest legal force" of the country and the guarantor of a democratic state—then its words must be respected, its principles kept. If, however, the Constitution is something that can be abandoned when inconvenient, it is nothing more than words on paper and will do little to ensure the freedoms for which Ukrainians have fought. Without those freedoms, Ukraine’s future as a democratic nation is imperiled.

I remain confident in Ukraine and the Ukrainian people.

Bohdan A. Futey is a Judge on the United States Court of Federal Claims in Washington, DC, appointed by President Reagan in May 1987. Judge Futey has been active in various Rule of Law and Democratization Programs in Ukraine since 1991. 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. He also served as an official observer during the Parliamentary elections in 1994, 1998, 2002, and 2006, and Presidential elections in 1994, 1999, 2004, and 2010, and conducted briefings on Ukraine’s election Law and guidelines for international observers.

August 9, 2011