President Viktor Yanukovych (second
from left) shakes hands in this Aug. 17 photograph with close ally
Volodymyr Kolesnichenko, head of Ukraine’s High Council of Justice,
which appoints judges. Anatoly Golovin, also a close presidential ally
who heads Ukraine’s Constitutional Court, is at left. Oleksandr
Pasaniuk, head of the High Administrative Court, is at right. All three
are recent appointees.(Mykhailo Markiv)
Source: Kyiv Post - Graham Stack, Peter Byrne and Yuriy Onyshkiv
Ukrainians will almost certainly get major changes to the Constitution, whether they like it or not.
To change the Constitution in a way that gives him and future
presidents more power, President Viktor Yanukovych will benefit greatly
from a friendly Constitutional Court that ratifies any new document.
But have his supporters stacked the 18-member judicial body with Party
of Regions supporters to ensure that the court sanctions whatever the
Presidential Administration wants?
That’s what it looks like after four new justices were sworn in by
parliament on Sept. 21, only days after Ukraine’s Congress of Judges
dismissed their predecessors who may have been obstacles to
strengthening presidential power.
The four replacements are seen as likely to favor the annulment of the
constitutional changes agreed to in 2004 as part of a rushed compromise
agreement ending the democratic Orange Revolution.
Mykhailo Gultai, Oleh Serhiychuk, Natalia Shaptala, Mykhailo Zaporozhets
Ukrainians will almost certainly get major changes to the
Constitution, whether they want them or not, as President Viktor
Yanukovych is determined to strengthen presidential powers. Four new
appointments (shown above) to the 18-member Constitutional Court give
the president a commanding majority of loyal judges to ratify anything
the administration wants, court watchers say.
The changes were adopted as demonstrators took to the streets to protest
the Nov . 21, 2004 presidential vote rigged in favor of Yanukovych.
They took effect in 2006, diluting presidential powers and strengthening parliamentary ones.
“In 1996, we had the best constitution in Europe (…) I acknowledge the mistake [we made in 2004], now it’s time to correct it.”
- Olena Lukash, Yanukovych’s representative at the Constitutional Court.
They were supported strongly by Yanukovych, who sought to limit the
authority of his rival, Viktor Yushchenko who became president after
winning a repeat vote on Dec. 26, 2004.
But more than five years later, Yanukovych has flip-flopped on the
issue. Now, as president, he is pushing for stronger presidential rule
and appears to have stacked the Constitutional Court with enough judges
to make it happen.
After monopolizing political power in Ukraine by forming a dominant
coalition in parliament by bending the rules of Ukraine’s existing
constitution, Yanukovych now appears close to grabbing the strong
presidential rule that former president Leonid Kuchma had during his
notoriously corrupt and authoritarian 10-year rule.
The new composition of the Constitutional Court comes as the justices
started on Sept. 23 to rule on whether the 2004 agreement to shift
powers to parliament should be canceled. A majority of the 450 national
lawmakers last summer asked the court to rule on the issue. A decision
is expected within days.
“In 1996, we had the best constitution in Europe (…) I acknowledge the
mistake [we made in 2004], now it’s time to correct it,” Olena Lukash,
Yanukovych’s representative at the Constitutional Court, said on Sept.
Yanukovych is believed to now have commanding control over the loyalties
of the newly constituted Constitutional Court – with 15 of 18 justices
in his favor, according to one court watcher.
“There are now only three judges left who are
critical of Yanukovych. These are judges appointed by [former President
- Vladimir Fesenko, director of the Gorshenin Institute.
“There are now only three judges left who are critical of Yanukovych.
These are judges appointed by [former President Viktor] Yushchenko,”
said analyst Vladimir Fesenko, director of the Gorshenin Institute.
Many experts and pro-democracy activists, including David J. Kramer, who
takes over this month as executive director of U.S. based Freedom
House, see the stacking of the Constitutional Court as the latest of a
series of anti-democratic steps.
“The internal developments this year in Ukraine concern me more than any
foreign policy issues,” said Kramer, who served as Assistant U.S.
Secretary of State for Democracy, Human Rights, and Labor from March
2008 to January 2009.
“The way the government was formed in March, the postponement of local
elections until the end of next month, the ramming through the Verkhovna
Rada of the Kharkiv deal, efforts to change the Constitutional Court
and the constitution itself, pressure on journalists and the case of the
missing journalist Vasyl Klymentyev, and [Security Service of Ukraine]
harassment of non-governmental representatives add up to a disturbing
pattern that, taken together, do not bode well for Ukraine’s democratic
development and threaten to reverse many gains in the area of democracy
and human rights over the past five years,” Kramer added.
Yaroslava Machuzhak, one of the more independent-minded judges recently
replaced, was also visibly distressed when discussing the future of the
“I am not an optimist about the ability of the
Constitutional Court to withstand pressure and make a decision … purely
based on jurisprudential criteria. I fear the Constitutional Court is
close to losing its independence.”
- Yaroslava Machuzhak, an independent-minded judge recently replaced.
“I am not an optimist about the ability of the Constitutional Court to
withstand pressure and make a decision … purely based on jurisprudential
criteria,” Machuzhak said. “I fear the Constitutional Court is close to
losing its independence.”
Machuzhak said she resigned when it became obvious that the
invitation-only Congress of Judges, which decides judicial appointments,
would replace her and her colleagues on Sept. 16.
Delegates voted overwhelmingly to replace Machuzhak and her three
colleagues – Ivan Dombrovsky, Anatoly Didkivsky and Vyacheslav Dzhun –
who all have resigned since August.
The congress voted in three new judges – Mykhailo Gultai of Kharkiv,
Mykhailo Zaporozhets of Lugansk and Natalya Shaptala of Donetsk. All
come from the heartland of support for Yanukovych and his Party of
Regions, and from regions long notorious for lacking independent courts.
The candidacy of a fourth judge, Oleh Serhiychuk, from the Supreme
Administrative Court, was supported by Serhiy Kivalov, the Party of
Regions parliamentarian and head of the Verkhovna Rada justice
committee, according to the Ukrainski Novyny news agency. Kivalov became
notorious as head of the Central Election Commission during the rigged
Nov. 21, 2004, second-round presidential election in which officials
declared Yanukovych the winner, triggering the Orange Revolution that
led to Yushchenko’s ultimate victory in the infamous Dec. 26, 2004,
repeat vote that followed.
Whatever the new qualifications are for getting on the Constitutional
Court in the Yanukovych era, it appears that constitutional expertise
and independent decision-making are no longer desired.
Machuzhak said that she and the other departing judges had opposed the
Constitutional Court ruling earlier this year that sanctioned how
Yanukovych’s allies formed a ruling coalition in parliament in March.
In contradiction to an explicit law and a 2008 Constitutional Court
ruling on the matter, the justices this year allowed coalitions to be
formed by individual deputies – regardless of party affiliation – even
though voters elected them on the basis of political party lists.
No longer on the Constitutional Court
Anatoly Didkovsky, Ivan Dombrovsky, Vyacheslav Dzhun, Yaroslava Machuzhak
This ruling, derided by critics as the start of judicial decisions that
rubber-stamp administration policy, allowed Yanukovych’s Party of
Regions to unseat the government of arch-rival Yulia Tymoshenko, who as
prime minister held on to a shaky majority before then.
According to media reports, three of the four departed Constitutional
Court judges – Dombrovsky, Didkivsky and Machuzhak – had also opposed
Anatoly Golovin’s candidacy as chairman of the Constitutional Court in
June. The opposing judges were effectively sidelined from participating
in court work in the run-up to the vote on the new chairman, the reports
Like three of the four new judges, Golovin also hails from Yanukovych’s
stomping ground in eastern Ukraine. His career started in the Soviet KGB
and after independence he served 13 years in the Donetsk branch of the
Security Service of Ukraine, or SBU. Golovin then switched to the state
prosecutor’s office, where he rose to become deputy head prosecutor
before joining the judiciary.
The independence, honesty and competence of the Constitutional Court
have been challenged for at least a decade. And the latest developments
will likely sully its reputation further.
In 2004, the judges ruled that ex-President Leonid Kuchma, in office from 1994 to 2005, was eligible to run for a third term.
“Most judges now have backgrounds in state prosecution and security services.”
- Serhiy Vlasenko, a deputy of the oppositional Bloc of Yulia Tymoshenko.
The ruling came despite the Constitution’s stipulation that a president
should be limited to two terms. The court further damaged its reputation
in 2007, when Yushchenko fired four of the 18 justices to avoid the
prospect of an unfavorable ruling on his right to disband parliament and
call early elections that year.
According to court watcher Fesenko, only three of the current members of
the constitutional court can be considered experts in constitutional
The rest, he said, have been appointed for reasons of political loyalty
“both under the previous president as well as under the current one.”
At the opening Constitutional Court hearing on Sept. 23, one
acknowledged constitution expert among the judges warned of major
consequences that could follow if the constitutional changes from 2004
were ruled “unconstitutional.”
“What will we do with the current laws that will no longer conform to
the constitution?” asked Viktor Shishkin, who was appointed under
Yushchenko’s presidential term.
According to parliamentarian Serhiy Vlasenko of the oppositional Bloc of
Yulia Tymoshenko (ByuT), “most judges now have backgrounds in state
prosecution and security services.” Vlasenko said he expects them to
vote on pro-presidential constitutional changes “with eyes closed and
“In a state that aims to become a state of law,
courts have to be authoritative, powerful and self-sufficient –
genuinely independent. I believe my presidency’s main goal lies in
taking Ukraine out of the group of outsiders among European countries.
(...) This can’t be done without independent and professional courts".
- Viktor Yanukovych, president of Ukraine.
However, while addressing the Congress of Judges on Sept. 16, Yanukovych pledged to support the independence of the judiciary.
“In a state that aims to become a state of law, courts have to be
authoritative, powerful and self-sufficient – genuinely independent,”
Yanukovych said. “I believe my presidency’s main goal lies in taking
Ukraine out of the group of outsiders among European countries. (...)
This can’t be done without independent and professional courts".
Yanukovych also promised to eradicate “telephone justice,” the
Soviet-era practice of political interference in judicial decisions.
Back to future
The agreement to change the Constitution came during the 2004 Orange
Revolution. The changes were pushed by the tandem of Yanukovych and
Kuchma, the outgoing president, on Yushchenko, his successor, as part of
a bargain to hold the decisive Dec. 26, 2004, Yushchenko-Yanukovych
rematch. Many believe Yushchenko betrayed the Orange Revolution by
acquiescing to these changes.
The Kuchma-inspired changes expanded the powers of the Verkhovna Rada,
giving lawmakers the right to nominate and ratify the prime minister, as
well as ratify the president’s nominations for defense, interior and
foreign ministers. The prime minister nominated other government
members, subject to ratification by the parliament.
Supporters said the revised Constitution, which took effect in 2006, was
more in line with European parliamentary democracies. But a growing
chorus of critics argues that the changes muddled authority between the
presidency, government and parliament, thereby contributing to the
political conflict and gridlock that characterized the ruling tandem of
Yushchenko and Tymoshenko.
Moreover, the argument that the procedure for making the constitutional
changes in 2004 was legally flawed is not new, said Bohdan Futey, a U.S.
Court of Federal Claims judge who is of Ukrainian roots and has advised
Ukraine on constitutional issues. Futey, in fact, came to the same
conclusion in a legal opinion to Yushchenko in 2005. Among his
arguments: the Constitutional Court had already voted against similar
changes to the Constitution in May 2004 and, according to the
Constitution, a year had to pass before repeat voting is allowed.
In addition, the Constitutional Court ruled in October 2005 that changes
to the political system must be approved by referendum before they go
into effect. According to Fesenko, constitutional changes have to be
approved item by item, whereas the numerous changes introduced in the
2004 agreement were enacted by one vote in parliament. In addition,
changes were made to the law after it had been cleared by the
Constitutional Court in 2004.
The precise legal arguments may matter little to Yanukovych, who wants
stronger political powers to push through urgent changes, but may lack
the 300 votes required in the Verkhovna Rada to change the Constitution
legislatively. Therefore, a favorable court ruling would be the easiest
way. In the very least, it could build moral ground in parliament for
Yanukovych’s push to return the country to stronger presidential rule.
But it remains very much unclear if Ukraine’s oligarch-dominated
parliament would consent to handing so much authority back into the
hands of one individual.
Bitter clashes between parliament and Kuchma during his 10-year reign
are still fresh in the memories of many lawmakers. Moreover, many top
businessmen could fear the fate of Mikhail Khodorkovsky, the Russian
billionaire who was thrown into jail under a strong Russian presidency.
Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States
"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."
Constitutional Court challenge
The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.
On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:
“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.
The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.
There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)
In emphasis the report (item 68) stated
"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”
On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.
Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.
Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24
“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”
Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying
“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.