Judicial reform – Corruption management – Top down, bottom up, or fashion accessory?

March 12, 2015

Many, many years ago when commenting upon one or another government of the day’s latest “anti-corruption campaign” and further skip full of unimplemented legislative scripture, crafted in the belief that it was some form of magic that would instantaneously solve the problems without any further effort, it was pointed out that the sacking of the entire judiciary would simply lead to a collapse of the legal system, notwithstanding the removal of a few decent and respected judges along with a barrel full of bad apples.

Moving forward in time to the present, the same problem still presents itself.  To simply sack, or lustrate, 60%, 70% or 80% of the current judiciary en masse would collapse the judicial system.  Current, pending, and yet to be brought cases would either stop, be further delayed, or face a queue far in excess of timely legal remedy/recourse.

The goal, however, remain the same – as thorough a cleansing of the judicial system as is practicable, and the management of institutional corruption thereafter.

Thus there is a need to approach the cleansing and reform of the judicial system in a thoughtful manner.

As the above tweet states, two days ago four Kyiv judges were suspended for 2 months whilst they are investigated for allegations that at the very least would be perverting the course of justice, and at worst complicity in actual crimes.

The judicial suspensions occurring only after the Rada had voted to remove their immunity – lest we forget Rada MPs, judges and the President still enjoy immunity (and impunity) through constitutionally granted inviolability.  There is, however, a question to be asked as to why the High Qualification of Judges were not the driver behind asking parliament to vote to remove these judges immunity, rather than the other way around.  An attempt at self-cleansing would project a far better perception, considering the political control that still exists over the judiciary.

The recent Rada vote to remove the inviolability of MPs and judges currently sits with the Constitutional Court, awaiting its nod of approval – and that nod is not likely to be swift until a clear legal procedure to impeach a president is also submitted, thus balancing the removal of inviolability of the executive powers.

Regardless, these judges are now under investigation – very good – but it’s also disappointing that it happened in Kyiv, and not somewhere in the provinces prior to confronting these particular individuals in the capital.  Once again, just as with the “new police force”, everything is perceived as being Kyiv-centric.  Not the best of perceptions to project, particularly when “lustration” such as it has been within the provinces, has consisted of little more than the quiet, early retirement of aging “low-hanging fruit” and a thinning out of the rank and file.

There is a real requirement for the “reformers” the get out of Kyiv and demonstrate change in the provinces, as clearly the provincial patriarchal structures and fiefdoms are going to need “assistance” to change their ways beyond the pressure local civil society and media can bring.  Big regional scalps are required.

Anyway, society and the reform-minded are faced with the prospect of a somewhat slower cleansing of the judiciary than was hoped for – and indeed inferred by the current coalition government.  The wrongly projected impression of a steamrollering over corruption, is now clearly seen as having far less steam than the political class portrayed (again) – even though there still appears to be some momentum (in Kyiv, if not so much in the provinces).

Not all the Ukrainian judiciary is corrupt of course – despite myths to the contrary.  However, questions arise as to how best utilise the 20% – 30% of decent and ethical judges within the Ukrainian judicial system vis a vis those that will (eventually) be rightfully lustrated – as well as those that will (wrongly) manage to make it through the lustration process and survive in post – particularly so if the “inviolability” issue stalls, or indeed fails to become reality.

How best to employ this scarce ethical resource from a “top down” management perspective, that will optimise the benefits to the Ukrainian constituency?

Naturally great care should initially be taken in the replacement of those judges eventually lustrated, insuring not only that the replacements are ethically robust and appointed purely on merit/ability, but also monitored once appointed to insure the corrosiveness of corruption does not erode their sense of professionalism.

A role perhaps for those 20% – 30% of judges who are indeed decent in a mentoring/self-policing?

Should those of society subjected to the judicial process be allowed to nominate the judges that hear their case,  thus a natural gravity toward the 20% – 30% of judges that will provide a “fair hearing”, and a subsequent societal shunning of the corrupt judges that slip through any lustration as a result?

How would that effect the timeliness of justice being served if all cases gravitated toward those judges seen as “fair”?  How does a newly appointed “fair” judge earn that reputation if all cases gravitate to the “tried and tested, fair” judiciary?  Why continue to employ or pay judges that society shuns by choice?

Would it not also mean the nefarious gravitating toward the corrupt judges too?

Would it therefore be wiser to stuff the regional Courts of Appeal with the judges that have a good reputation for being ethical and fair, thus ultimately allowing for due process and unbiased/uncorrupted rulings as a result of numerous appeals?  Are the 20% – 30% of ethical judges, better employed undoing the wrongful and corrupt rulings of the rest?

How does that deter the corruption in the first place if there is an undue reliance on the Court of Appeal?  Should it therefore be a procedural norm that any regional Appeal Court ruling that overturns that of an original ruling automatically triggers an investigation by the High Qualification of Judges and/or the Prosecutors Office to ascertain any corrupt practice, or simply whether there is a difference of legal interpretation that led to the overturning of original verdicts?

Alternatively, should these 20% – 30% of ethical judges be employed in specially created “corruption courts”?

Another question worthy of asking, is whether there are an equal amount of prosecutions for offering a bribe, that equates to those prosecutions within the institutions of State for those that accept them?  It is a s much a crime to offer/attempt to bribe an official in Ukraine as it is for an official to accept a bribe.  Therefore, for every corrupt official busted for accepting a bribe, it follows there should also be prosecutions against those that offered/paid it.

Would there be a noticeable decrease in the bribery of officials if both briber and the bribed faced prison sentences, large fines, and the confiscation of the bribe itself?  Perhaps, perhaps not – but until both sides of any bribery transaction consistently face prosecution, we will never know.  As this case from two days ago displays – the official has been caught accepting a bride and will be prosecuted – the briber is simply not mentioned at all.  Why?

As prevention is as important as prosecution when it comes to any crime – and bribery and corruption is no exception – it is perhaps also necessary to robustly educate society regarding its basic rights and responsibilities – insuring society is also aware of the consequences of offering a bribe, how to report one if coerced, how to say “no” (and there are ways of saying “no” without having to say “no”), and for those within the system, a confidential whistleblower mechanism – if necessary to an external and independent body.

In short, as part of an anti-corruption policy, should society not be bombarded with anti-corruption education in the same way that it is for about carrying and using condoms to fight sexually transmitted diseases?


Also, as it is patriotic fashion to have the Ukrainian flag displayed in car windows, or to have a blue and yellow ribbon adorning ladies handbags (at least it is in Odessa), then perhaps one of the urban centers in Ukraine will launch another visible campaign that will become a meme nationwide – a different coloured ribbon, wristband, lapel badge etc., that overtly proclaims the conscious decision to neither pay, offer or accept a bribe, and report any such incident if it is forced or offered.

Such an overt display may well make many current practitioners within the State institutions think twice before trying to solicit a bribe – particularly so if the meme is perceived to bring about numerous prosecutions nationwide.

Likewise those who habitually offer bribes may curtail that activity should their peers start to be prosecuted when approaching government employees wearing anti-corruption fashion accessories.

Whatever the case, and there are numerous methods of prevention to consider, somewhere in the mix of prevention, education and prosecution is the answer to a definite reduction in bribery, coercion and corruption – not only amongst the judiciary but across the entirety of the State institutions.  It is an issue of corruption reduction and management – eradication will never happen.

Continually writing more laws will not magically cleanse the judiciary in and of itself, any more than it will any other State institution.  Lustration, even if attempted in a meaningful way (which remains to be seen over and above the low hanging judicial fruit), will not be entirely effective either.

Whilst the “top-down” anti-corruption policy may be partially effective (or not), the “bottom-up” can overload the system by insisting upon being issued protocols rather than paying bribes – and then challenging them in front of the 20% – 30% of ethical and fair judiciary eventually – if the said protocols are not statute barred due to the untimeliness of an overloaded system anyway.

The question  is where it is strategically best to put the decent and ethical judges that exist in sufficient depth that they can effectively assist in curbing corruption within and without of their own ranks, whilst educating the Ukrainian constituency in its basic rights and responsibilities – and also making it the fashionable meme to say – or wear – “No”.

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