A long, long time ago, at the beginning of October 2014 to be more precise, an entry appeared here regarding the poorly written “Lustration Law”, foreseeing all sorts of constitutional issues, and ultimately ECfHR cases as a result.
The entry concluded thus – “Is it a good idea to accept the “OK” when the “good” can be achieved – or a sensible thing to introduce the “OK” when the need to tackle the “bad” is absolute and immediate in the minds of the electorate?
President Poroshenko stated “I am confident that the given law is rather more positive than negative and it will make Ukraine better.” – Maybe so, maybe not.”
Indeed, constitutional challenges were made regarding the aforementioned badly crafter law, as was anticipated – “Under challenge are Part 1 – Clause 6. Part 2 – Clause 2. Part 2 – paragraph 13. Part 3 and Article 3. Thus whilst not striking down the entire Lustration Law, it would certainly seem to hollow it out somewhat.”
Now the issues within the legislative text sit before the Constitutional Court of Ukraine, as indeed they should – but not before the Venice Commission made comment upon the “Lustration Law” in December of 2014 – “Firstly The Venice Commission recommends that body in charge of lustration should be a specially established independent commission – not the Justice Ministry. It stresses that people’s right to a fair trial -including the right to a lawyer, equal rights of the parties, and the right to be heard in court – should be observed, and that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.
Currently the law on lustration fails to contain some provisions dealing with such guarantees of rights.
It also suggests the provisions of the law containing the list of positions subject to lustration should be revised, and that lustration should only apply to those positions that could pose considerable danger to human rights and democracy, and that guilt should be proven in each specific case – it cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.
All of which, again, was entirely predictable – so much so it was predicted at the time.
Legislate in haste – repent, repeal and pay reparations at leisure.”
Thus before the Constitutional Court sits a law that will clearly not find much favour within the ECfHR (considering the comments of the Venice Commission) when thousands of cases make their way forward for consideration should the Constitutional Court allow it to stand – or it is a law that it can rule as, in full or in part, is unconstitutional, ergo, requiring recompense and perhaps reinstatement for many.
(We may ponder, indeed, whether there is mileage in the creation of a temporary “Ukraine Division” within the ECfHR, not simply for internal cases that may make their way in large numbers, but also when Ukraine v Russia cases reach the Strasbourg.)
Perhaps the State will offer those already subjected to “lustration” the option to accept the outcome of that act (which meant most quietly kept their ill-gotten gains upon sacking or resignation), or upon reappointment be subject to criminal corruption investigation where ill-gotten gains will possibly be taken by the State.
However, despite knowing just how poorly crafted the “Lustration Law” is, it appears that some MPs, even government ministers, and law enforcement figures have called, via the media, for a public turnout/protests/petition at the Constitutional Court when the “Lustration Law” goes under the constitutional microscope. Something that the Constitutional Court has not taken kindly to.
The Constitutional Court has taken the view that such acts (together with others mentioned below) are an attempt to intimidate the court.
“9-10 April media distributed by individual MPs, public figures and law enforcement officials. accusing judges of the Constitutional Court, threats of their prosecution and engagement, appeals to citizens to assemble at the walls of the Constitutional Court on the day of the examination of the referred case.
On the eve of the consideration for such a sensitive public affair, around the sole body of constitutional jurisdiction, artificially there is created a situation of tension and mistrust. It is, in fact, to intervene in the activities of the Constitutional Court, namely the obstruction of the court cases on the constitutionality of certain provisions of the law “On cleaning power”.
Attempts by politicians to extend compromising information concerning the professional activities of judges, calls for rallies and demonstrations under the walls of the Constitutional Court are nothing but pressure on the court. Recall that influence judges in any manner prohibited by Article 126 of the Basic Law of Ukraine.
Any pretrial conclusions or assumptions, including by law enforcement authorities or the media is nothing but pressure on the judges sole body of constitutional jurisdiction, which is prohibited by the Constitution of Ukraine.”
Naturally there is a right of assembly, and a right of expression for those that assemble, in answer to any calls made by the legislatively illiterate that crafted the “Lustration Law” – and they may rightly gather in support of the spirit behind the law, but that will not made poorly crafted legislation suddenly well crafted legislation.
The Constitutional Court will fail in its duty if it does little more than raise a learned eyebrow. There is now a very visible opportunity for the judiciary to take a step in retaking its rightful democratic space – and as the statement from the Constitutional Court above makes clear, keep the oversized political feet off of the manicured judicial lawns.
Should the Constitutional Court find unconstitutional fault with the “Lustration Law” (and it’s hard to see how it won’t), then those gathered would be perhaps wiser to raise their ire toward the retarded legislature that created such an unconstitutional law, rather than the court.
With all “volunteer battalions” now legitimately within the National Guard, and thus The State retaking its place as holding the monopoly on force in society, it is now time that the judiciary take the opportunity to reclaim its democratic space, so often stomped upon, perverted, and abused by the political class historically.
The State must be prepared to lose within its own legal system if its legislators are not capable of crafting clever legislation that remains constitutional, within Ukraine’s internationally ratified obligations, and meets the requirements of society – and to be blunt, most Ukrainian legislators are not capable.
If this law, in part or in full, is deemed unconstitutional, society would be wise to appropriate the cause where is duly lies – with the legislature and not the judiciary.
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Post Script: Blog entries will become somewhat ad hoc/erratic for the next month despite what will undoubtedly be the usual succession of (dramatic) successes and failures within and without Ukraine, for your author is engaged upon something of a mini-tour of Europe which is unfortunately not all play.
There may also be several “guest author” entries that will undoubtedly be far more informative, witty, and well written than your usual read here.
By mid-May, hopefully, the daily, dull, normal service, will have resumed.