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Facing the inevitable Constitutional Court ruling – Lustration

June 11, 2016

Numerous are the entries relating to the “Lustration Law” (On cleansing power), commencing from the date it was signed into law, knowingly flawed, by President Poroshenko in October 2014.

A glossary of the expected problems with the poorly crafted law, together with the anticipated Venice Commission “Opinion” suggestions, and forewarned Constitutional Court outcomes can be found here.

The time has come,” the Walrus said, “To talk of many things: Of shoes–and ships–and sealing-wax– Of cabbages–and kings–And why the sea is boiling hot–And whether pigs have wings.” – Well, that time to talk nonsense has perhaps not quite arrived just yet, but the time of reckoning for a legislative act that barely met the parameter of “OK” certainly has.

The Constitutional Court will finally issue a full verdict regarding the constitutionality – or more likely the lack of constitutionality – regarding the “Lustration Law” (or major parts thereof) in the next few days.

This has prompted robust statements from Justice Minister Petrenko that amendments (submitted on 26th March) to accommodate the Venice Commission “Opinion” will finally be forced through the Verkhovna Rada – and presumably therefore also meet the requirements of the Constitution of Ukraine (though no doubt new appeals (or attempts there at) will be forthcoming relating to these amendments by vested interests).

Speaker Paruby has stated that amendments will also be forced through the Verkhovna Rada to keep the law in statute and on-side with the Constitution – whether he is referring the the same Venice Commission related amendments as Justice Minister Petrenko is unclear.  (Perhaps there are other possible amendments to consider?)

Prosecutor General Lutsenko is stating that his former parliamentary colleagues should vote for a new “Lustration Law” – in which he implies the end of the panel of judges that may perhaps (indeed probably quite rightly) rule the current “Lustration Law” unconstitutional.

“If the Constitutional Court would go against the will of the Ukrainian people – it will be the beginning of the end of the panel of judges.”

As the judges are not responsible for the poor text of the legislation that rubs against the Constitution -but Mr Lutsenko and his parliamentary colleagues that drafted and voted it into statute at the time are – the inference within the Prosecutor General’s remarks regarding the future outcome for the judges are somewhat “unhelpful” if trying to portray an “independent” judiciary, or uphold the integrity and morality of the Prosecutor General that from such a statement may be perceived as interfering/influencing/pressuring the Court.

Is the Prosecutor General seriously stating that the Constitutional Court should rule a prima facie unconstitutional legislative act (or several parts therein) constitutional because not to do so would go against the will of the people?  Is it not the case that the legislative act should either meet the demands of the Constitution of Ukraine, or (perhaps dangerously) the Constitution of Ukraine be amended to facilitate that legislative act – the mechanics of which are both primarily the originating responsibility of the Verkhovna Rada – a body of which until only a few weeks ago Mr Lutsenko has been a member for decades.

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To be clear, the Judges can hardly be said to be truly free of vested interests, for the “Lustration Law” did their caste few favours, yet that they become (perhaps temporarily) beneficiaries of poor Verkhovna Rada work is the responsibility of which entity?

There are numerous other lesser mortals from within the Verkhovna Rada also decrying the anticipated Constitutional Court outcome – yet that anticipated outcome has been predicted from the very day the law was signed into statute in 2014 – “I’ve thoroughly studied the draft Law “On Purification of Government” in the version that has been adopted by the Verkhovna Rada the last week. It is not flawless. It has a lot of problematic moments. A lot of innocent people will have to go through a humiliating procedure. I am not happy with that. I’d wish for the better. But in current circumstances, the Law will be signed”. 

“We will finally put this issue into legislative framework. It was the main reason for the adoption of the law. The country must purify itself and it must be carried out under clear procedure regulated by the law.” – President Poroshenko 4th October 2014.

It is perhaps no surprise that with regard to this law in particular, (for a reader can be sure that if a Ukrainian politician (and President) acknowledges flaws in a law when signing it, then it really is notably flawed) that this blog has always accompanied any mention of the “Lustration Law” with the phrase “Legislate in haste – repent, repeal and pay reparations at leisure!.” as there was always to be a time of reckoning – and that time is now upon us.

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