The Ukrainian Legal Foundation’s Halyna Freeland ‘Independent thinking is hard to acquire’

Halyna Freeland practiced law in Canada for nearly 20 years and even made a run for parliament before coming to Ukraine in 1992 to work on a doctoral thesis in women’s studies. After helping to organize some legal seminars, she was asked to put together a proposal on her ideas for legal reform in Ukraine.

In working on the proposal, she met reformist deputy Serhy Holovaty, who had previously formed the Association of Ukrainian Lawyers during the glasnost era. The two convinced billionaire philanthropist George Soros to fund their joint project – the Ukrainian Legal Foundation. Freeland has worked with the foundation ever since, currently in the position of counsel to the chairman of its board of directors.
Q: What is the Ukrainian Legal Foundation working on?

A: The foundation’s general role is to work for the establishment of the rule of law in Ukraine. We think for this you need a minimum of four things. One, well-written and appropriate legislation. Two, legislation and legal information has to be available, accessible and known by the people – both those in the profession and the public. Three, an independent judiciary. Four, an independent legal profession.

On legislation, we assist the legislative drafting process. Being a small institution, we pick key legislation. The foundation was involved with the constitution from its very beginning to its acceptance. Later we were involved in educational work with the group drafting the civil code. We’ve also helped on the criminal and criminal procedure codes, and hope to start a project on the civil procedure code. These codes provide the basis of all legislation. When they are in place, we’ll start working on more specific laws.

The foundation also established the first legal library in Ukraine. There had never been one in this country. Additionally, we initiated a publishing project: court reports, statutes, some legal journals and so on. Our publishing house is now a separate firm.

The educational aspect is multifaceted, starting from the law school we established, the Ukrainian Center for Legal Studies, which currently only provides an LLM [master’s in law] degree but which we hope to expand. We also do some public legal education through television programs, printing and distributing materials, etc. And we have developed two high school programs. The teaching methods strive to bring law to life, so as they become adults they think of the law as part of the structure that helps protect their rights and also establishes the basic form of government.

Q: You also mentioned an independent judiciary. How is Ukraine doing in that regard?

A: I would say of the three branches of powers, the judiciary has made the most progressive steps forward. It’s transforming itself from what it was in Soviet times – basically one of the bodies in the chain of control of individuals – to being an impartial judge. I think its courage in taking decisions and defending its position in light of attacks by the president and the executive power is really an indication of how far we’ve come. In the last half-year it was very, very strongly criticized by the executive branch for taking decisions, for example, protecting the rights of taxpayers. These were not at all popular, but the courts held their ground. I think they have to be commended for this.

On the other hand, it’s a long process. Many of the sitting judges, their personality and approach to the job was formed in the days when they were used to taking orders, and deciding what they were told to decide. The habit of independent thinking is very hard to acquire. Even the conditions are not there completely. When you depend on your local administration to provide paper and pencils and light for your functions, it’s very difficult not to do something when you are suggested or requested to do so. They have come a long way, but there’s still a long road to becoming a truly modern, functioning, independent judiciary.
Q: Are the rulings enforceable?

A: Yes, that’s also a very important piece of the puzzle missing, the enforcement of judgments. Of course, judgments are enforced in criminal matters. That machinery is in place. People get jailed and fined. But, for example, enforcement of judgments against government officials or often in other actions – the machinery isn’t there and decisions are ignored. Judges can’t even drag in government officials if they’re required to testify.

Q: What about the public’s attitude toward the legal system?

A: Because the courts in Soviet times were really a mechanism of control, they have little trust among the public. This leads to the continuation of a practice – instead of turning to the legal system to solve problems, people still turn to posadovi osoby, people who have a position of power or authority. You have people spending days hanging around to see a person in authority, writing petitions to them, etc., rather than a belief in a rule-based system where you can refer to the court system, lawyers and other mechanisms to solve problems. This perpetuates the system that concentrates power in the executive branch of government and distorts the shape of society.
Q: How is the profession of law developing?

A: The last, most difficult step and the one we’ve made the least progress on is establishing an independent legal profession. To some extent there’s a quasi-independent legal profession now – private notaries, for example, and some lawyers with independent practices. But there’s no professional association that has powers by law to regulate the profession. No one body says what are the standards of practicing law, what the rules of ethics are, how you disbar a lawyer who violates them, and so on.

Q: There was a recent incident in which a Post reporter contacted the lawyer representing someone who had been accused of a crime, and the lawyer divulged information that seemed to violate the lawyer-client privilege rule.

A: The first steps toward adopting a code of ethics are being taken, but there’s really no effective mechanism for enforcing them. There’s nothing like malpractice insurance or anything of that sort. The example you cited is perfect. In a Western country, that lawyer would lose their right to practice so quickly he wouldn’t have time to turn around. He would also be sued for a lot of money. Basically, he is libeling his client. Under Western professional ethics standards, a lawyer is not even entitled to name a client without permission from that client, let alone talk about the details of a case.
Q: How would you rate Ukraine’s legislative branch?

A: It certainly doesn’t have a stellar record in so far as accepting legislation. The adoption of the constitution is one of its great successes. I would say that the Verkhovna Rada is too divided to be effective as a legislature. It’s partly a political problem – too many factions – and partly a knowledge problem. Before independence it was basically a rubber stamp. Suddenly it has real law-making authority. Although they are learning fast, they still don’t have the personal skills and experience, or the staffs, or even libraries. It’s a long way from taking the All-Union laws, crossing out the word All-Union and writing in Ukraine, to debating a law on policy issues.

The constitution lays the ground rules. But – and there’s always a but – many of the provisions enshrined still don’t have the accompanying legislation. For example, trial by jury. Since this is a relatively new concept for Ukraine, you need the legislation that says when you have a jury trial, how you impanel one, how you pick one, etc. All this specific legislation still has to be formulated. Similarly, the constitution talks about adversarial trials, with two sides presenting evidence. But this isn’t the case here. The procuracy [the arm of the state that investigates and prosecutes violations of law] hasn’t been reformed. It still has much more extensive powers than we’re used to in North America.

Q: How would you describe current attitudes toward legal reform?

A: After independence and in the early years there was an acceptance that change was necessary, reflected by indicators like the removal of the old prosecutor general, some reduction in the powers of the office, and the appointment of a reformist replacement, Viktor Shyshkin. Now what we see is that despite constitutional provisions, no steps at all are being taken to reform the procuracy, or again, to adopt enabling legislation so it loses much of its power. In addition you have the old prosecutor general being re-appointed. Symbolically, it shows the atmosphere and the optimism about legal reform has changed very much.

Broadly, you now have a battle between conflicting interests in the legal system. In my view, between progressive forces that want to move toward Europe, to become democratic and establish a system for a mixed and market economy and make the individual a priority, against those who want to keep as many elements of the old system in place as they can. This includes a procuracy that is in charge overall of legality and an inquisitorial system in the courts. I read today that [Progressive Socialist leader Natalia] Vitrenko is once again talking about abolishing the office of president, all power to the soviets, etc. You see, positions that used to be in effect in Soviet times are being argued very forcefully once again.

I think not just legal reform but reform in general is in a period of decline. Partly, the fate of legal reform depends on economic reform, and vice versa. If people don’t think their rights to property are going to be protected, they won’t invest in property. If people don’t think they can settle their disputes, they won’t advance money, take risks.
Q: So what is the backbone for economic reform?

A: The Civil Code sets the foundation for economic reform, but it has not yet been adopted. What you do have is the constitution, which states that you have private property, there is provision of private enterprise, and that there can be private property in land. But private property in land is subject to appropriate legislation and the parliament has very clearly said no laws generally providing for private property right now. Land cannot be a commodity. But that’s a foundation of economic reform. That won’t happen with this parliament.

With other forms of private property, and even a step toward private property in land, that will be provided for in the Civil Code – if it is adopted. Part of the reason the Civil Code calls up opposition is that it takes it a step forward. The current Civil Code is still that of the Ukrainian Soviet Socialist Republic. And you are going from that to a system that talks about different forms of property, different forms of ownership, different means of production, different relations to production – people taking control. It’s a major, major revolution. Without this major legislative change to underline the change, it’s piece-meal, subject to change and contradictory.