Constitutional Court’s judgements seem political, not law-based


US Federal Court Judge Bohdan Futey spoke with Radio Svoboda about recent Constitutional Court judgements and plans to change Ukraine’s Constitution.

Judge Futey was a consultant to the Working Group which back in 1996 drew up Ukraine’s Constitution. He considers it to be a good Constitution, It needs certain improvements, and it needs to be observed. “You can’t pass laws which are clearly against the Constitution as was done recently over the Law on the Judicial System in Ukraine.  These problems existent and attention is needed to all of them”.

Asked about plans again afoot to rewrite the Constitution, Bohdan Futey pointed out that in over 200 years the US Constitution has seen only 27 amendments. Moreover the Council of Europe and Venice Commission are also to some extent warning Ukraine against constant changes in the laws. Take the law on the elections which has already had changes several times over the last 5 years.

He stresses that the main issue is implementation of the Constitution and notes that the latter guarantees Ukrainians the right to trial by jury, yet in all the time that has elapsed, a jury system has not been set up.

Another example is seen with the right given the President by the 2010 Law on the Judicial System and Status of Judges to dissolve courts.  The President has the right to create courts on the recommendation of the heads of the Supreme Court and Council of Judges however the Constitution does not give him or her the right to dissolve courts. How can judges be independent when they know that they can be dismissed for “breach of oath” or their courts can be dissolved?  Judge Futey points out that this flawed practice was in fact started by ex-President Yushchenko.

The Constitutional Court

Judge Futey believes that the judgements of the first intake of judges (their tenure is for nine years – translator) were basically good.  Then in 2005-2006 the Constitutional Court was effectively paralyzed for 10 months (the Verkhovna Rada did not vote for their third of the new judges, meaning that the Court did not have a quorum).  This meant that there was no highest court with the power to consider and, if necessary, declare the constitutional changes rushed in on 8 December 2004 unconstitutional. Then when the Court was back in action, parliament – following an agreement with Yushchenko – passed a law prohibiting the Constitutional Court from considering the constitutionality of the 2004 changes (see Trading away the Constitution)

Judge Futey points out that the 2004 constitutional changes were a priori unconstitutional from the outset and were a compromise for the elections.

He says that the constitutional changes were finally declared unconstitutional for not observing procedural requirements. “However what is now happening with the Constitutional Court – they pass judgements which contradict each other and don’t explain why they’re doing it. One time they rule that a coalition can only be created from blocs, another time they say that it can be formed on an individual basis. They have the right to decide thus, but they must explain it well.”

“… unfortunately it looks as though the judicial system, and this is not my opinion, I am upset by this, it’s the view of many Europeans and others from abroad, that the Court is issuing political, not law-based judgements.”

The interviewer and Bohdan Futey discuss the relative advantages and disadvantages of parliamentary-presidential and presidential systems.

Asked what needs to be changed in the present Constitution, Judge Futey answers that some provisions need to be changed, however what is absolutely necessary is to enforce the Constitution and not pass laws in breach of it. Now the question is how the Constitution is changed. Each President, head of minister needs what he calls honest brokers, honest advisers telling them not only what they want to hear, but what they need to know to make correct decisions.

He points out the 1996 Constitution clearly states in Articles 154 – 159 how the Constitution can be changed. He insists that any changes should only be in accordance with those provisions.

He does not know how the work of the Constitutional Assembly will develop and whether there will be a role for people who are not Ukrainian citizens. I”f they turn to us, however, we will try to help. I am a USAID advisor on rule of law in Ukraine and we are making great efforts on laws concerning the courts. Unfortunately not all our laws are accepted since they pass laws before we have given our advice, that’s the reality. However we’ll try to work further in order to help how we can, with our knowledge, our practice, so that all works for the better, for the good of Ukraine and so that there aren’t such negative comments.

These elections in October will be very important and we’ll see what steps there’ll be further. We were recently at a conference in Ottawa “Ukraine at the Crossroads” and we will really see whether Ukraine will continue to be at the crossroads, whether Ukraine will still move as everybody is now saying in the direction of the EU, and to those norms recognized by international organizations as democratic on the basis of the rule of law”.


Abridged from the interview on the Radio Svoboda Ukrainian Service

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