BY
On 26th
July 2015, an entry relating
to the generally positive Venice Commission “Opinion” toward judiciary
reforming constitutional amendments was published.
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.
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