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Judge Bohdan A. Futey: Legal Challenges for President Zelensky:

19 Aug 2019 8:34 PM | Deleted user

Legal Challenges for President Zelensky

July 24, 2019

 Judge Bohdan A. Futey

            The Rule of Law is vital to the advancement of democracy worldwide, which, in turn, will help provide for a more prosperous economic environment. Article 8 of Ukraine’s Constitution enshrines a commitment to the Rule of Law, stating that “the principle of rule of law is recognized and effective.” The essential characteristics of the Rule of Law include:

  • ·       The supremacy of law. This means that all persons, including government officials, are subject to the law.
  • ·       A justice system with key safeguards, including interpersonal adjudication, law based on standards, and robust procedures.
  • ·       Preservation of individual liberties.
  • ·       A political system based on separation of powers, including an independent judiciary.

On April 21, 2019, Volodymyr Zelensky was elected President of Ukraine by an impressive majority. The election was recognized by all international observers as being democratic, transparent, and meeting all international standards. The election will hopefully serve as a model for other countries in the region. Now, President Zelensky and his advisers are discussing legal changes and amendments, including the possibility of referenda. As this discussion moves forward, it is particularly important that the Rule of Law prevail and Ukraine’s commitment to it not waiver.

For some, President Zelensky’s comments have raised concerns that his advisers may circumvent the current laws to adopt new laws or amend the constitution by referendum. If the President proposes changes, and Parliament and the people agree, such changes should be legal so long as their implementation follows the requirements outlined in the Constitution.

Any suggestion by the President or his advisers that he is willing to bypass Parliament, however, would be troubling. The implementation of any amendment to the Constitution clearly requires parliamentary approval. In the past, some have argued that Article 5 of the Constitution places the power to amend the Constitution solely in the hands of the people; however, when Parliament approved the Constitution on June 28, 1996, the people delegated that power to elected officials when they adopted a process for amendment.

The amendment process is set forth in Chapter XIII of the Constitution. Draft amendments pertaining to general principles of government, elections, and the amendment process must be submitted to the Constitutional Court to ensure compliance with Articles 154 through 159 of the Constitution. All amendments must be approved first by a majority of Parliament and, if successful, then by two-thirds of Parliament at the next session. In some instances, pursuant to Article 156, the President is additionally required to submit proposed changes for approval by a national referendum.

It is imperative that any proposed amendments comply with these legal requirements. The restrictions set forth in the Constitution ensure that the Executive does not exert unchecked authority. When a President proposes bypassing parliamentary approval, the Rule of Law must prevail, because commitment to the Rule of Law is critical to the promotion of democracy and the realization of its promise.

This is not the first time that discussion has taken place on bypassing legal requirements in Ukraine. Attempts were made under Presidents Yushchenko and Yanukovych. Under President Poroshenko, however, the Judiciary, including the Constitutional Court, was successfully reformed. Now, individuals have the right to challenge the constitutionality of laws. The law “On the Judiciary and the Status of Judges” became effective as of September 2016. In 2018, Parliament adopted a law providing for an Anti-Corruption Court. All amendments and changes were adopted in accordance with the Constitution of Ukraine. This provides an example of the proper path to amend the Constitution.

Elections for members of the new Parliament were held on Sunday, July 21, 2019. The assessment by international observers was that the elections met international standards for free and fair elections that accurately reflect the will of the electorate. The minor infractions that were noted did not impact the results. Four hundred twenty-four deputies were elected, one half by political party lists and the other half by majoritarian districts. This reflects a reduction of twenty-six deputies. Elections were not conducted in Crimea as a result of the illegal annexation by Russia and in certain districts of Donbass and Luhansk because of hostilities there. To be elected to Parliament, a political party must obtain a five-percent entry threshold. Five parties met that standard. President Zelensky’s party, “Servant of the People,” received the largest percentage, 43.12%. The work of deputies dealing with reforms will commence immediately. It is imperative that their work be carried out in accordance with the Constitution and laws of the country.

The transition from a command system to a system based on the Rule of Law is not easy, but the recent events throughout Ukraine and the people’s revolutionary expression at the Maidan during the Revolution of Dignity, hopefully, will be an irrevocable incentive and mandate for the implementation of reforms as the country is watchful over its independence and territorial integrity and moves forward to integrate with the European Union. Now that the new Parliament has been elected and President Zelensky is in office, it is important that both adhere to these principles.

[Bohdan A. Futey is a Judge on the United States 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 June 28, 1996. Judge Futey is a professor at the Ukrainian Free University in Munich, Germany and a visiting professor at the National University of Kyiv-Mohyla Academy in Kyiv, Ukraine. In March 2015, he was appointed by the President of Ukraine to serve as a consultant on the Constitution Commission.]

This article was published in the Ukrainian Weekly. (August 11, 2019)

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