Reforming the judiciary – the Opposition Bill

July 27, 2013

Well here is an interesting little entry on the Svoboda website relating to an opposition Bill to reform the judiciary.

It has so far garnered 127 MPs signatures, 23 short of the required 150 to formally introduce the Bill.  Batkivshchyna and Svoboda MPs have signed – as yet UDAR MPs have not.

In fact as interesting as this entry is, it is possibly too short to be really interesting – as it fails to mention numerous important aspects and justify others.

However, whilst some important aspects are missing, what is there is deserving of a little closer scrutiny.

There are basically 6 points listed:

1.  Providing a mechanism for local people to impeach local judges by way of referendum.

2.  The involvement of people in the judicial mechanism through “peoples assessors” and juries.

3.  The elimination of the Constitutional Court (and reinstalling the Supreme Court of Ukraine as the highest court in the land).

4.  Making the High Council of Justice genuinely independent – reducing its numbers to 15.  (10 of which will be elected by the Congress of Judges and 5 by the RADA).  The High Council of Justice to be formed only of professional judges.

5.  Limiting the presidential powers to such a degree they are all-but ceremonial in appointment.

6.  Removing the official oversight of the Prosecutor General’s office over the judiciary.

Some interesting points – both good, bad and indifferent.

Firstly, I have to say there must be some concern over the ability for a local referendum to remove a judge – as it is possible to see a circumstance where the judge delivers a lawful verdict much to the angst of the local community – and possibly the judge him/herself.

If the High Council of Judges is to be truly independent as the opposition propose, then the HCJ should be the primary source of hiring, firing, disciplining and retiring judges.

They are after all, not democratically elected to their position by the populous under the opposition proposals – and therefore the question is whether they should be able to be removed from that office by public referendum – which is a democratic tool – It seems somewhat messy.

Personally, I have a very dim view of the prospect of returning “people’s assessors” – To me a Soviet hangover that regularly took on a role far greater than that of a juror and has no place in a modern “European” judicial system.  If the aim is to reform the judicial system to that of a European one, why hang on aspects of a Soviet past?

The installation of the jury system is, however, highly desirable – and as quickly as is possible to accomplish it effectively.

The elimination of the Constitutional Court (according to the Svoboda website due to it being fully discredited) is quite possibly a move in the right direction if we consider the Supreme Court of Ukraine would be as equally – as branch of the judiciary – capable of dealing with constitutional issues as the Constitutional Court.

Quite simply, is it necessary to have a branch of the judiciary that deals solely with constitutional issues? – Probably not, and if not, get rid of it (be it discredited or otherwise).

With regards to comprising the High Council of Justice of only professional judges – quite right.  What is the point of having civil servants in such a highly placed legal council?  What benefit do they add – or perhaps more to the point how great is the hindrance and interference they cause?

However, I do wonder why, when absolute independence is the goal for the HJC, the opposition want the RADA to appoint 5 of the proposed 15 members?  If the Congress of Judges can appoint 10 of the 15, why not all 15?  Why is it necessary to have any political appointments in a supposed A-political and independent institution.  Is that not somewhat self-defeating and muddying the waters unnecessarily?  If they want it to be independent, take all political appointments out of the equation.

When it comes to limiting the presidential powers over the HCJ, I am all for it – just as I am removing the 5 RADA appointed HCJ members as the opposition proposes in its Bill. – It seems no Ukrainian politicians can garner the political will to completely allow the judiciary to be independent – they all seem to need to have some input/control, to the absolute ruin of the concept of independence.

Lastly comes the issue of oversight.  If the Prosecutors Office is to no longer be charged with oversight, who is?  Is anybody?  What happens if the HJC or the Council of Judges – or both – becomes just another corrupt (but independent) patriarchy?

If as is necessarily the case, that HJC and Council of Judges appointments are open ended to insure they will serve continuously through many presidential and parliamentary terms, and are their terms  are necessarily “difficult” to bring to an abrupt end – short of internal disciplinary measures – thus removing the ease of political manipulation and expediency to insure they are not be beholding to any particular president or sitting parliament – they still require some form of, if not vertical oversight, then horizontal accountability.

Who and how?

Has the opposition submitted its Bill to the Venice Commission as they demanded of the current majority’s equivalent Bill, for subsequent recommendations?  It would be interesting to know what the Venice Commission would state having received it.

To be honest, so important is the reform of the judiciary, that both opposition and majority Bills should be subject to Venice Commission scrutiny and recommendation.  An expert and independent eye seems quite appropriate – especially so as the Bill submitted by the majority also has good, bad and indifferent proposals therein.

A last, and rather poignant question, is when, eventually, the political class will actually remove their own immunity and subject themselves to the law?

Despite numerous voices across every Ukrainian political party supporting the removal of immunity, it remains –  That said, just like strategic voting at the UN in the full knowledge that there will be a veto from one or another security council member, thus enabling you to vote against your own best interests in order to curry favour with public opinion with no adverse result to self interests, numerous RADA MPs from all parties can raise their voice in favour of abolishing MP immunity in the full knowledge it won’t get passed.

Nevertheless, unless or until UDAR MPs sign in support of this Batkivshchyna/Svoboda Bill, it may not even get submitted to the RADA in the fullness of time anyway – making this entry all rather pointless really (much like many others!)

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