On 26th July 2015, an entry relating to the generally positive Venice Commission “Opinion” toward judiciary reforming constitutional amendments was published.
That full opinion can be found here and is well worth reading in its entirety.
However, to summarise the positives – The removal of the power of the Verkhovna Rada to appoint the judges; the abolition of probationary periods for junior judges, the abolition of the “breach of oath” as a ground for dismissal of the judges, the reform of the Public Prosecutor’s Office, the guarantees for its independence (notably the removal of the power of the Verkhovna Rada to express no confidence in the Prosecutor General) and the removal of its non-prosecutorial supervisory powers.
Likewise with the negatives – While the ceremonial role of the President to appoint judges seems well justified, this is not the case for his power to dismiss judges, which should be removed from the text, and in addition, not only the President, but also the Verkhovna Rada should have a role in the election/ appointment of a limited number of members of the High Judicial Council.
On the whole however, not too bad at all – clearly the Verkhovna Rada had some help with their homework prior to submitting it to the Venice Commission, for their usual standard of legislative crafting is, to be charitable, poor.
Of course the whole judicial reform issue since that 26th July entry has gone precisely nowhere – no differently from removal of MPs immunity first voted for on 5th February, having long since received the nod from the Constitutional Court for a final vote.
Thus far, meaningful political reform to the Ukrainian political system is notable by its absence, and reforming the nation is dependent upon reforming the political system first.
Absolute immunity (and impunity) remains in place despite the 5th February vote and Constitutional Court nod of assent. No reforms to the internal workings of a bureaucratically constipated (and thus corrupted) Verkhovna Rada have been made. Electoral law amendments have not been passed despite Ukraine having long since received the Venice Commission advice it requested. The election laws employed for the local elections vindicated the external advice given and that was subsequently then ignored, and the OSCE called once again for the pending legislative electoral changes to be made post haste. The new law on changes to funding of political parties and candidates barely got over the legislative line with 229 votes in favour (226 required) and has a delayed implementation date of 1st July 2016. Thus the local elections last week, and any early Verkhovna Rada elections rumoured for Spring 2016 remain unaffected by this new law – assuming it is not amended into impotency prior to it coming into effect.
There is no need to go on about the failure to reform the political mechanics, though it is possible to do so.
With regard to the political party scene, then the entire gene pool remains without any ideological DNA. Some may point east, others west in their direction – but a compass point is not an ideology. Even the few new parties that have appeared from the local elections with a chance of entering the national legislature if early Verkhovna Rada elections manifest, are also devoid of ideology. The Renaissance Party is Ihor Kolomoisky’s Russian-leaning alter-ego to his Ukrop Ukrainian nationalist party – both of which will do his bidding. Our Land is a creation designed to split the Opposition Block vote further by the ruling party. It has no other purpose. All other existing parties remain nothing more than vehicles for their leaders and/or financiers, and without them the parties are quite meaningless and define political nihilism entirely devoid of political ideology and values. The leader’s whim of the day, dictates the party action. No party is bigger then, or can control, its leader/financier.
Whether any anticipated Verkhovna Rada elections would produce a better or worse legislature remains to be seen. The voters can only vote for those that appear upon party lists or who stand for single mandate first past the post seats. As long as the political parties continue to fill their party lists with the same quantities of nefarious and odious candidates, and via the same old grubby methods, voters can only vote for those who are listed.
When the political parties continue to give voters a choice of party lists that are little more than a choice between a nefarious and odious poke in the eye with a fork, or a nefarious and odious poke in the eye with a pointed stick, the result remains a nefarious and odious poke in the eye. The choice of death or cake is absent.
Nevertheless, quite clearly the Verkhonva Rada has become constipated when it comes to delivering the political structural and power changing legislation required that will facilitate reform in Ukraine. Whilst the Prosecutor General, Mr Shokin, is deliberately obstructing reforms, the Verkhovna Rada is no better.
Although it was, and remains, very unlikely that President Poroshenko and Prime Minister Yatseniuk are the two leaders that will reform Ukraine as far as implementing deep and comprehensive reform is concerned, they are certainly capable of creating the legislative mechanisms for reform so that others who follow them and who will have the will to do so, can.
Returning to the judicial and prosecutor reforms, the issue is raised here once more, not due to its continuing untimeliness, nor the expected stalling at the final hurdle/vote, but due to the fact there are a number of imminent judicial issues. The question is whether they be delayed for however long it takes to deliver the Constitution changing laws, or whether timeliness demands these judicial issues be dealt with under existing legislation?
There are currently 253 motions sat gathering dust within the Verkhovna Rada to dismiss judges. There are also 547 judges that have applied for their permanent appointment. This notwithstanding an entirely inadequate lustration of the judiciary which so far seems mostly to have occurred by way of agreed retirements (and retained pensions) rather than any prosecutions and jailing – but then nobody of any importance really gets prosecuted by the current Prosecutor General (whom the President refuses to replace) – thus nobody of any importance goes to jail.
But what to do with all of these pressing judicial personnel issues when the plan is to transparently appoint a new judiciary based upon quality under public scrutiny, and also at some point to at least feign the lustration of the judiciary?
There is already a lot of critical legislation vying for parliamentary time in November (the 2016 budget and proposed major new tax reforms are two amongst others that will demand a lot of parliamentary time) and in December too (the probable time for any “decentralisation” vote immediately before the New Year break when MPs can scatter and avoid any public ire).
The absence of will by the majority of parliamentarians to force real political machinery reform legislation to the vote is clear, as is the inability of the Party Whips to be confident of garnering the necessary votes to pass anything meaningful.
Eventually however, even if it means western economic aid suspended until this legislation is passed, the amendments will pass.
Unfortunately even when the constitutional changes are made we can anticipate further problems, as there will be a need for new legislation to progress and support the constitutional changes and enable effective implementation – and that legislation will probably be as protracted in its passing as that mentioned above. After all, Ukraine has a constitution that, since its creation decades ago, provides for a right to trial by jury – yet there has never been a trial by jury as there has never been any subsequent subordinate legislation passed defining what a jury is, what a jury does, nor the composition of a jury, how it is selected, and for what offences it it convened and which it isn’t.