The rule of law is the lynchpin to promote democracy throughout the world, and democracy, in turn, will provide a better and more prosperous economic life. Article Eight of Ukraineâs Constitution underscores that âthe principle of rule of law is recognized and effective.â Now, as President Viktor Yushchenko proposes to draft a new constitution for Ukraine, it is particularly important that the rule of law prevail. There are many characteristics of the rule of law. Let me mention what I consider to be essential.
â The supremacy of law, which means that all persons â individuals and government officials â are subject to the law.
â A concept of justice which emphasizes interpersonal adjudication, law based on standards, and the importance of procedure.
â The importance of preservation of individual liberties.
â A political system based on separation of powers with appropriate checks and balances.
This requires an independent judiciary.
On Dec. 27, Yushchenko issued a decree setting up the National Constitutional Council, of which he is the head, and authorizing the Council to draft a new constitution for Ukraine. The president proposes to draft an entirely new constitution because âthe current Constitution is too imperfect to be amended.â
At the first meeting on Feb. 20, Yushchenko told the Council that their suggestions would be put to public discussion, a vote in parliament and a referendum. The president stated further, however, that if the members of parliament fail to cooperate, he would bypass parliament and submit the new constitution to a national referendum, so that it would be adopted âat the initiative of the people.â
The presidentâs assertions certainly cause concern that he may be ready to circumvent the current laws in order to adopt a new constitution. Commentators have questioned the legality of adopting a new constitution at all. Nonetheless, if the president proposes a new draft constitution, and parliament and the people agree to its implementation, it should be legal so long as its implementation follows the requirements of the current Constitution.
The presidentâs statement that he is willing to bypass parliament, however, is particularly troubling. The implementation of any amendment to the Constitution clearly requires parliamentary approval. There is great concern that the presidentâs advisors are not providing him with the best counsel. Now is when it is most important that the advisors to the president operate as âhonest brokersâ. If the president were to merely present a new constitution to a national referendum without the approval of parliament, the adoption of that constitution would be contrary to present law.
Some have argued that Article Five of the current Constitution places the power to adopt a new constitution solely in the people; however, in approving the Constitution in 1996, the people delegated the power to elected officials and the government when it established the means by which the basic law can be amended. Nevertheless, if the draft constitution were to be submitted to a national referendum for merely consultative purposes, and then submitted to parliament for approval in accordance with the current Constitution, adoption of that constitution would be legal.
In order for a new constitution to be properly and legally adopted, the president must comply with Chapter XIII of the current Constitution. This is further emphasized by Article 102 of the current Constitution, which recognizes the president as the guarantor of the Constitution of Ukraine.
Any provision of the new draft that changes the general principles of the Ukrainian government and Constitution, the means by which elections and referenda are conducted, or the means by which the Constitution is amended, however, must be reviewed by the Constitutional Court to ensure its compliance with Articles 157 and 158 of the Constitution, and must be approved by two-thirds of parliament, as well as by an all-Ukrainian referendum. All other provisions of the new draft must similarly be reviewed by the Constitutional Court, and must be approved first by a majority of parliament and, if successful, then by two-thirds of parliament at the next session. There is no constitutional requirement that these amendments be approved by public referendum.
It is imperative at this point in time, as Ukraine struggles to establish itself as a democracy that the introduction of a new constitution complies with these legal requirements. The restrictions of the current Constitution are in place to ensure that the executive does not exert unchecked authority, as the president would be doing were he to bypass parliamentary approval. It is exactly when such actions are threatened that the rule of law must prevail: respect for and compliance with the law is absolutely critical to the promotion of democracy.
This is not the first time that the rule of law principles and democracy have been threatened in Ukraine. The political reform of 2004, which became effective in January 2006, violates the principles of the rule of law and is probably unconstitutional. In a decision handed down by the Constitutional Court on Oct. 5, 2005, the majority of the Court stated that any change in the political system of Ukraine should be submitted to and approved by a national referendum, in addition to all other formalities. No such referendum was ever put forward. Many critics of the reform, including myself, believe that the political reform constitutes a change in the political system as it converts Ukraine from a presidential system to a parliamentary system and is, therefore, unconstitutional unless submitted to a national referendum, notwithstanding any other irregularities.
The transition from a command system to a system based on the rule of law is not easy, but I am an optimist and believe that Ukraine can move forward and become a democratic state in accordance with European standards and requirements. Let us hope that democracy in Ukraine will not rest on handshakes and political agreements among politicians, but rather will follow the basic law and focus on the building of solid and strong institutions, a must for civil society.
Bohdan A. Futey is a judge on the US Court of Federal Claims in Washington, D.C., appointed by President Ronald Reagan in May 1987. Futey has been active in various rule of law and democratization programs in Ukraine since 1991. He served as an advisor to the working group on Ukraineâs Constitution adopted on June 28, 1996.
Source: http://www.kyivpost.com/opinion/oped/28891/
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