Constitutional amendments, judicial reform and lacking legislation

BY NIKOLAI HOLMOV

On Thursday 2nd June it is expected that the Verkhovna Rada will vote for changes to the Ukrainian Constitution that will pave the way toward notably altering the judiciary and the mechanics upon which it (corruptly and inefficiently) runs.

President Poroshenko, European politicians and bureaucrats, innumerable diplomats, and many commentators are all  encouraging the Verkhovna Rada to raise the 300 (+) votes necessary to perform this most necessary task.

It is also necessary to be entirely honest and state that the amendments to the Ukrainian Constitution before the parliamentarians on 2nd June are far from perfect – however they facilitate the opportunities to create an improved judiciary and improved judicial machinery within which the “learned judges” will function.

It has been stated innumerable times at this blog that the Constitution of Ukraine is far to woolly in some text and far too detailed in others where standard statute would be far better placed to create the legislative framework.  The proposed amendments very much seem to continue that trend although overall allowing for improvements over the current judicial system.

Nevertheless within 24 hours of publishing this entry it will become clear whether the Verkhovna Rada can gather together 300 (+) constitution changing votes – or not.

Should that 300 (+) vote number be reached however, the ability to implement the relevant constitutional changes within the judicial system – at least in the immediate term – appears to be somewhat difficult.

The usual issues of what exists on paper (constitutionally or in statute) and what exists in reality due to the lack of will, differing interpretations by individual institutions and/or regions, or deliberate obstruction by vested interests aside (which always create an environment of ineffective, or deliberately counterproductive implementation in Ukraine), there appears to be no supporting raft of draft statute to facilitate the implementation of the relevant constitutional amendments as soon as they come into effect.

(By way of long standing historical example (and one of many), the Constitution of Ukraine since its original drafting decades ago provides the right for trial by jury – except there has not been a trial by jury as there is no law in statute defining what a jury is, how it is to be composed, and the gravity of offences nor level of court hearing at which a jury is to be called upon to sit.)

A similar state of affairs seemingly presents itself in the immediate term following any successful and Constitution changing vote within the Verkhovna Rada on 2nd June.  Ukraine will again have the most basic and fundamental law of the land stating one thing by way of Constitution, but have no statutory legislation that actually provides for its full implementation.

Perhaps the most glaring of numerous current (and no draft law in sight) statutory absences will see a new constitutionally set 3 tier judicial system that is supported by a complete absence of statutory legislation relating to the reorganisation of appellate courts and (some) local courts.

Is it not wise when tinkering with the most fundamental law of the land to have statute to facilitate its implementation already drafted and submitted for Verkhovna Rada passage in the wake of any successful constitutionally based changes to the judicial system?

Is it not erroneous, if not farcical, to have the old mechanics working unconstitutionally due to a lack of prepared implementation facilitating statute?

Should such preparatory statutory legislative work not have been done by now?  It’s not as though amendments to the Constitution suddenly appear and catch parliamentarians by surprise.

Perhaps if the constitutional amendments do garner the necessary votes, then in the time between passing and signing into law by the President something hastily scribbled on the back of a cigarette packet in the Verkhovna Rada car park purporting to be the necessary (but probably faulty) facilitating statute will come into being – then again perhaps not, and a trail by jury will occur in Ukraine first!

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