As soon as June 2, the parliament may vote into law the amendments to the Constitution dealing with the judiciary as well as a new version of the law “On the Judicial System and Status of Judges.” To make it happen, the Presidential Administration (PA) is pulling all the stops: as some MPs explained to The Day, mobilizing support in the Rada was a reason for the recent expose of the Party of Regions’ shadow accounts. Thus, the government wants to get “disobedient” MPs under its thumb which would force them to vote for the amendments to the Basic Law, and such MPs are many on the list of those involved in the scandal.
This idea found confirmation when we talked to retired judge of the Constitutional Court (served from 2006-15) Viktor Shyshkin. “One MP, who is going to vote against the amendments, had a conversation with me and told me that Bankova Street [where the PA is located. – Ed.] was putting fierce pressure on the MPs who are still undecided or want to vote against the amendments to the Constitution. The pressure takes various forms, ranging from bribery to intimidation, including attacks on the family businesses or firings of wives, children, etc. He sees this drive as the reason for the recent publication of the Party of Regions’ shadow accounts, although they had known about them for two years, ever since the documents were recovered from water near Mezhyhiria. They are drip-feeding this information, sparing certain MPs so far to get them to vote ‘correctly.’ According to him, the published list also lacks names of judges involved in corruption, including the Constitutional Court judges who are valuable for the government since they gave an opinion that we were not living under martial law conditions, and therefore amending the Constitution could go ahead.”
Of course, the judicial reform is long overdue, however, will the PA-proposed amendments really launch a judicial revolution in Ukraine? “These amendments have both positive and negative traits, and the latter are rather serious,” Candidate of Law, Senior Researcher of the Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine Mykola Siry commented for The Day. “As for the negative traits, they are related to the fact that these amendments would destroy the balance of separation of powers as defined by the Constitution as it is now. When we talk about the independence of the judiciary, it means that the parliament has no right to limit the jurisdiction of the courts. That is, all judicial power must be exercised by the judiciary alone. Meanwhile, the proposed amendments reserve to the legislature defining the limits of the courts’ jurisdiction. In addition, the procedure which is proposed for appointing judges (they are to be selected by the High Council of Justice and approved by the president) will actually bring about the subordination of the judiciary to the president.”
It is expected that the judicial reform will involve creating a three-tier court system and a complete reboot of the existing judicial system. Under the new system, the bulk of cases are to be tried by local courts. The second tier will include courts of appeals, and the Supreme Court will be the sole third-tier court. “The much-promoted advantages, such as elimination of the five-year period of probation for judges, could have been implemented by an ordinary law rather than through amendments to the Constitution,” Siry said.
The big negative, experts say, is the fact that the proposed changes effectively grant the licensed lawyers the monopoly of court pleading. That is, a person who has a law degree but is not a licensed lawyer will be unable to represent others in court. For example, the renowned constitutionalist Shyshkin or MP of the Verkhovna Rada of the 2nd and 3rd convocations Oleksandr Yeliashkevych, despite holding law degrees, will be no longer able to represent Oleksii Podolsky in the court which is trying the high-profile Gongadze-Podolsky case. “When proposing to establish the licensed lawyers’ monopoly, they should have considered the state in which our legal profession is now. We need a transitional period during which the legal profession is to be brought into proper shape. For now, the licensed lawyers’ monopoly is unacceptable,” Siry explained.
But the main problem is not even the proposed amendments to the Constitution themselves, but rather a very important point that brings us closer to the Rubicon.
“I often repeat the same argument that passing any amendments to the Constitution amounts to a betrayal of Ukraine and helps Vladimir Putin as he tries to whitewash himself on the international scene,” Shyshkin stressed. “And under this doctrine, our government is, in fact, playing along with him. Firstly, the president has failed in his constitutional duty to impose the martial law in the presence of a military invasion of our territory by another state, which would also give grounds for legitimate mobilization (Clause 20 of Art. 106 of the Constitution). Secondly, if we do not experience the martial law conditions, why then are we hearing of head-on battles which see tanks, artillery, and the Air Force employed, thousands of people killed in defense of Ukraine’s independence, and millions of refugees? However, under conditions of the martial law the Constitution may not be changed (Clause 2, Art. 157). I stress it yet again, ‘under conditions of the martial law,’ and not after its formal declaration. And it is not just pure theory of law, but a foreign policy disaster for Ukraine as well. By acting this way, we confirm that we have no Putin-led aggression to fight, just as he is telling the whole world that Ukraine is fighting a ‘civil war.’”
However, we still do not know whether the amendments will get 300 votes they need in the parliament. “We are working on it,” MP from the Petro Poroshenko Bloc Valerii Patskan commented for The Day. “I support the idea to cleanse the judiciary, but it should not involve radical measures such as firing all the judges we do not like. We should have a professional committee which will examine the suitability or unsuitability of judges to pass certain decisions, their legal status, knowledge of laws and many other qualities. Lustration of judges should not be a reprisal, but rather a clean-up.”
“The MPs received the registered bill ‘On the Judicial System and Status of Judges’ as late as in the afternoon hours of May 31.” Fatherland MP Serhii Vlasenko told The Day. “In fact, the judicial reform is a delicate thing, somewhat akin to microsurgery, and it is absolutely unacceptable to throw such bills at us two days before the vote. But we live in a country where the president submits all his bills at the last moment and forces the MPs to vote for them by shouting that he needs a reform to pass. We are still undecided.”
