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16 WWW.UNWLA.ORG “НАШЕ ЖИТТЯ”, ВЕРЕСЕНЬ 2015 THE BASIC LAW OF UKRAINE: STRENGTHS & WEAKNESSES Comments by Judge Bohdan A. Futey June 29, 2015 Ukrainian Institute of America - New York, NY It is an honor for me to be part of this program on the occasion of the 19th Anniversary of Ukraine’s Constitution. Before I begin, allow me to call your attention to a very significant his- torical fact. This year Ukraine also celebrates 300 years of Pylyp Orlyk’s Constitution. It was adopt- ed in 1710 in the city of Bendery, almost 80 years earlier than the Constitution of the United States. This Basic Law embodied the principle of separa- tion of powers, a separate judicial tribunal, and the concept of private ownership of property. Since 1992 two Commissions worked on the present Constitution, one led by President Kravchuk and the other by President Kuchma. To assist the Commission in its task there was also a working group chaired by Professor Leonid Yus- kow, of which I was a member. In an overnight session from June 27-28, 1996, the Rada debated and eventually passed the Constitution by 315 votes. With the adoption of its Constitution on June 28, 1996, Ukraine took yet another step toward joining the community of democratic nations that place the rule of law and a free market economic system among their high- est values. The process that culminated in the adoption of a Constitution was, by no means, solely one of agreement and harmony; rather, as one might expect, this Constitution was born of compromise—as, for example, the vote for Ukrainian to be the State Language (Art. 10), and keeping the name of Autonomous Republic of Crimea. The Constitution addressed the concerns of Ukrainians about their national interests, the establishment of their statehood, as well as the suppression of rights by the Soviet Union and, at the same time, what kind of social changes a democratic future would bring. The Constitution was commended by a number of international organizations including the Venice Commission, particularly for its guarantee of many human rights. In articulating individual rights, the Con- stitution includes both negative and positive rights. Negative rights protect against govern- ment interference by limiting the role of govern- ment. They establish basic private rights and per- sonal freedoms, such as freedom of speech, press, religion, and assembly. Negative rights are en- forceable under the rule of law. A court may de- clare a policy or enactment of the government improper or illegal. Positive rights require the government to do something for the benefit of the individual. They include the right to a job, the right to housing, and the right to “satisfactory liv- ing standards.” They are, however, very difficult to enforce without further legislation. Many crit- ics believe, therefore, that these rights should be placed in the Preamble. Article 6 provides for the separation of powers, splitting the government into three branches: Executive, Legislative, and Judicial. The concept of checks and balances, however, has not been established in practice. Article 8 declares that the rule of law is recognized and effective. The concept of a market economy has been greatly enhanced in Ukraine by the guaran- tees of private ownership of property, Art. 14. The right to vote, which is guaranteed by the Constitution, has been increasingly well en- forced, particularly following the Orange Revolu- tion. Minority languages are also protected, Art 10. Clearly, even after nineteen years, Ukraine’s Constitution remains a work in pro- gress. With every election of a new President there has been a move to amend or adopt a new Constitution. Presently, President Poroshenko has established by decree a new Constitutional Commission with the mandate to amend three areas (sections) of the Constitution. The aim is to make it more democratic and closer to interna- tional standards as the government of Ukraine moves forward with reforms for a prompt Euro- pean integration. The Venice Commission and EU experts are playing an important role. I am hon- ored to be appointed to serve in the Commission as a consultant. There are three working groups that have been established in the areas of major concern to all Ukrainians. 1. The first such area is decentraliza- tion . The intent is to provide greater autonomy to local municipalities. This is extremely important in view of the constant armed conflict in Donbas and Luhansk as a result of daily actions by the so-
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