After the pro-Russian Regions Party took control of the parliament and government on Aug. 5, following four months of Negotiations and Rada intrigue, President Viktor Yushchenko appears helpless to lead the country toward continued reforms. However, Yushchenko may yet have a card to play, with the nation’s Constitutional Court back in operation.
The president’s predicament dates back to December 2004, when he had controversial constitutional amendments, which transferred many of his powers to the legislature, foisted on him by his allies in his bid for the presidency. Yushchenko was unable to challenge the constitutionality of the reforms, which kicked in this year, because the parliament refused to swear in enough judges to form a quorum in the Constitutional Court.
Now, if 45 people’s deputies or the president petition the court to review the constitutional reforms, which were hastily adopted during the country’s 2004 Orange Revolution, the president could regain such important power as the right to appoint the country’s prime minister and all the members of the Cabinet, currently held by the Regions and its coalition allies.
Lawmakers from more than one of the Rada’s five factions had blocked Yushchenko from playing his wild card for 10 months.
Now it remains to be seen whether the freshly re-staffed high court will reassert its autonomy in favor of the president or yield to partisan pressure from the powerful Regions camp.
Judges finally sworn in
The Ukrainian parliament finally swore in 14 Constitutional Court judges on Aug. 4, which is a milestone in the difficult first 18 months of Viktor Yushchenko’s presidency – especially because Ukraine had been without a functional Constitutional Court since October 2005.
According to the Constitution of Ukraine – adopted in 1996 and amended in Dec. 2004 – parliament, the president and Ukraine’s Council of Judges each appoint 6 justices to the 18-judge Constitutional Court. They serve nine-year terms, without the possibility for extension, and are also obliged to resign at the age of 65 if terms have not expired by that time.
Serious problems arose in Oct. 2005, when the terms of 13 Constitutional Court judges expired simultaneously. Only five judges remained on the bench, and the court was left without the necessary quorum of 12 judges. The term of a fourteenth judge expired during the 10 months that passed between October 2005 and the Aug. 4 swearing-in session.
According to Volodymyr Voznyuk, former deputy head of the Constitutional Court appointed by the Council of Judges in 1996, the court could have begun working much earlier if parliament had immediately sworn in the judges appointed by the presidential and Council of Judges quotas.
“With the six judicial appointments from the Council of Judges, the six judges from the presidential quota [three from Yushchenko and three appointed earlier by former President Leonid Kuchma], and the two judges from the parliamentary quota, whose terms had at that stage not yet expired, the Court could have begun working, practically speaking, as early as November 2005 … by Jan. 2006 at the latest. But they were not allowed to take their oath for a number of reasons, which, in my view, were politically, and not legally, motivated.”
Parliament’s dereliction of duty, by not appointing its quota and not swearing in the other judges, paralyzed the court, which could have played a significant role during the recent protracted political crisis over the formation of a new government.
Bohdan Futey, a judge on the U. S. Court of Federal Claims, believes it is imperative that parliament introduce changes to the Law on the Constitutional Court to ensure that there is always a functioning court – either by extending the terms of judges until a new court is elected, or by introducing a mechanism of rotation that maintains a quorum.
“What I would like to see is for at least 45 deputies to raise questions about the Law on the Constitutional Court, whether the swearing in of judges by the Rada is constitutional,” added Futey, noting that this inaction by the Rada can be considered to be either malfeasance or nonfeasance because “on the one hand they refused to act, and on the other hand, they also simply didn’t act…”
“The oath of office that requires judges to be sworn in by parliament gives the Rada additional oversight over the appointment of Constitutional Court judges, which violates Article 6 of the Constitution that ensures the separation of powers,” he added.
Court faces tough decisions
Even after 10 months of stalling, parliament’s vote to appoint its five judges on Aug. 4 was no less politicized than the coalition-building process that began after the March 26 parliamentary elections.
The appointment of parliament’s five judges took place the very same day that Regions leader Viktor Yanukovych was voted in as premier and parliament approved a new bill on the Constitutional Court which prohibits the court from reviewing the constitutionality of the 2004 political reform. Apparently acting against his own interests, President Yushchenko promptly signed the bill into law.
The other nine judges who were sworn in that day had already been appointed by Yushchenko or the Council of Judges after October 2005.
It’s clear that with this new Law on the Constitutional Court, parliament has moved to curb the court’s authority to review this issue, something which Futey considers “clearly unconstitutional.”
He said it violates a number of articles in the Constitution, most importantly Article 147, which identifies the Constitutional Court “as the sole body of constitutional jurisdiction in Ukraine.” Furthermore, Article 150 empowers the Constitutional Court to provide official interpretation of laws and the country’s Constitution.
However, given the current political environment, experts are also divided over whether or not the Court’s integrity is greater than the possibility of sending Ukraine spiraling into another political crisis.
Former court justice Voznyuk noted that settling the issue at this stage would be rather difficult, especially because “a previous court had ruled Oct. 5, 2005 that statues 157 and 158 of Ukraine’s Constitution had not been violated by the constitutional amendments, or rather that they did not curtail the human rights and freedoms of [Ukrainian] citizens, or violate Ukraine’s territorial integrity.”
Voznyuk added that the remaining issue is whether Parliament adhered to the procedural requirements outlined for introducing changes to the Constitution when passing the law amending it back in December 2004.
Stanislav Shevchuk, a member of the National Committee for Strengthening Democracy and the Rule of Law, noted that there were “three violations of a procedural nature,” the first two of which were essentially nullified by the Oct. 5, 2005 decision handed down by the previous court.
The third and most significant one, according to Shevchuk, was procedural.
The draft law amending the Constitution was changed hastily between its first and second readings in December 2004, during the peak of the Orange Revolution.
But because the draft law was not resubmitted to the Constitutional Court for consideration, this breached Article 152 of the Constitution, which explicitly states that review by the court is mandatory.
Rule of law or chaos?
In this regard, the issue of constitutional reform is not just about whether the court can be called upon to adjudicate what Shevchuk refers to as “competency clashes” between the legislative and executive branches of government, but about establishing its own authority.
Futey said these underlying issues illustrate that overturning constitutional reform would not be a recipe for chaos, but “a recipe for the rule of law, to illustrate that you cannot adopt laws or change and amend the Constitution if you don’t follow the Constitution while doing so…,” adding that even if the Court decides that the amendments are constitutional, the previous court’s ruling of Oct. 5 2005 stipulated that any changes to the Ukrainian political system must be submitted to and approved by a national referendum.
Voznyuk added that there is also the question of the political necessity of overturning these reforms.
“While this is not an issue for the Constitutional Court, this will hang over the heads and in the thoughts of the judges on the Constitutional Court… Imagine: a Cabinet of Ministers has been formed now in accordance with the new Ukrainian Constitution, and today there is a parliamentary-presidential republic… To overturn the constitutional reforms would mean to entirely break the organization of today’s government and the like… and start anew,” he said, adding that “this could result in another political crisis … and of course the political crisis entails a societal strain, and we’re tired of this strain…”
Clearly, the new court, if petitioned to review the political reform, faces a formidable task. Nonetheless, legal and judicial experts believe that the new court, with its seasoned justices and academic theoreticians, has a majority that is promising for establishing the independence of the judiciary.
Regardless of the decision the court makes, the burden of weighing stability, the integrity of the Constitution, and its own authority will make it a tough one.
Elected by Congress of Judges
Ivan Dombrovskiy 59, acting head of the court until one is chosen in September 2006
Anatoliy Didkivskiy 56, appointed to Ukraine’s Supreme Court in 1987 and 1997
Vyacheslav Dzhun 54, former justice of the Highest Economic Court, the Higher Arbitration Court
Yaroslava Machuzhak 50, recently a Supreme Court justice specializing in criminal law
Vasyl Bryntsev 55, chaired Kharkiv Regional Court of Appeals
Andriy Stryzhak 57, appointed to the court in 2004, but not sworn in until 2006
Note: Two of the justices listed above served on the country’s Supreme Court in 2004, when the court made a number of key rulings, including the invalidation of the results of the second round of the fraud-ridden 2004 presidential elections.
Appointed under quota of Current President Viktor Yushchenko (2006)
Dmytro Lilak 46, former justice of the Supreme Court in the chamber for business affairs
Volodymyr Kampo 58, scholar, former lecturer, appointed minister of justice by presidential edict in 1992, suspended by parliament due to procedural violations
Viktor Shyshkin 54, former lecturer, former prosecutor general who served on the commission investigating the murder of journalist Georgy Gongadze
Appointed under quota of Former President Leonid Kuchma (2001-2004)
Volodymyr Ivaschenko 58, former deputy minister in the Cabinet, appointed in 2001
Valeriy Pshenychniy 55, former Supreme Court justice, appointed to Constitutional Court in 2003
Suzanna Stanik 52, former minister of justice, appointed to Constitutional Court in 2004
Elected under parliamentary quota
Anatoliy Holovin 54, former deputy prosecutor general and chief military prosecutor
Mykhaylo Kolos 43, former member of the Socialist Party of Ukraine, headed department of special law disciplines at Ostroh Academy National University,
Maria Markush 51, appointed by the Communist Party of Ukraine, MP in previous parliament
Vyacheslav Ovcharenko 49, appointed by Party of Regions, former chairman of local court in Donetsk Region
Petro Stetsiuk 44, proposed by pro-presidential Our Ukraine faction, his candidacy was leveraged to have Yushchenko sign the law on the Constitution Pavlo Tkachuk 57, proposed by Socialist Party of Ukraine, appointed 2002
