Editor’s Note: On May 24, Kyiv Post’s staff writer Oleg Sukhov identified Oleksandr Vodyannikov as the anti-reformer of the week in his weekly column, “Reformer and Anti-Reformer of the Week,” arguing that Vodyannikov’s past support for the High Qualification Commission, which the Public Integrity Council believes rigged the Supreme Court competition, helped Ukrainian authorities get away with the rigging and may help them get away with falsifying the competition for the anti-corruption court, whose creation is being considered by the Verkhovna Rada now. This op-ed is a reaction by Vodyannikov.
The op-ed “Reformer and Anti-Reformer of the Week” published on May 24 prompted me to revisit opinions and ideas expressed in my blog almost a year ago (Supreme Court Competition: Reflections on Paradoxes), as the op-ed includes quotes from my views expressed there.
Ukraine’s justice system has seen many developments since then: a new Supreme Court launched, a procedural reform enacted, legislative procedures on an anti-corruption court kicked off, competition to the new Intellectual Property Court announced – to name just a few. And this week there’s the second anniversary of the adoption of judicial reform by the parliament which is anyway a good occasion to speak of lessons learned.
The Revolution of Dignity made a great promise of new governance free of corruption and political gambling. The society harbors huge expectations as to swift and fundamental changes in the judiciary. Those responsible for the reform have opted for a way that looks promising, which is reflected in various documents and plans. The reform is conceived of in three core pillars: legislative, including the Constitution, institutional and human resources.
The reform is undoubtedly a comprehensive, delicate and complex endeavor, with the international community, including the OSCE Project Co-ordinator in Ukraine (OSCE PCU), giving assistance ranging from policy and legislative advice to the training of judges and the bar, reforming legal education and enforcement of judgments. The philosophy of this support is premised on the idea that success of any reform effort depends on an inclusive and honest dialogue of all stakeholders. But the ultimate policy choice shall be with the Ukrainians.
A natural question to ask at all points on the timeline is whether the reform is meeting the Maidan’s grand promise. Two years ago I asked then U.S. Amb. Geoffrey Pyatt to give a motto for judicial reformers. He put it briefly: “Do it right!” And while only a distant perspective of several years can produce a “right” or “wrong” verdict, it is obvious already there are both first success stories and first lessons.
Throughout 2017 the Ukrainian public followed the Supreme Court competition that opened the overhaul of the judiciary and total screening of the national bench. The selection was entrusted to the High Qualification Commission of Judges (HQCJ) and a new civil society watchdog – the Public Integrity Council (PIC). It is regrettable that as an outcome the newly established Supreme Court instead of enjoying the trust and bravely “ruling the waves” is struggling to earn a vote of confidence from society. A key reason is a claim laid against the new supreme bench that 25 discredited judges vetoed by the PIC are among the 115 supreme judges.
I can only reiterate my last year’s statements that “the Supreme Court competition was unprecedented, and the results yielded rather adequate in general.” But, again, “neither unprecedentedness, nor adequacy means impeccability” or sufficiency. And this relates foremost to the HQCJ shortcomings in providing clear and detailed conclusions on specific candidates with, especially when it disagrees with the PIC. It is the HQCJ’s responsibility to demonstrate in practice that civil society’s concerns taken into account. Additional transparency can also be injected into candidates’ assessment procedures. This will enhance public trust towards selection results.
The PIC is an advisory body to the HQCJ, but the final say is reserved to the HQCJ. The engagement of civil society has an overall positive impact on the competition to the Supreme Court judgeships. As I stated elsewhere and reiterated in my speech during the Conference “One Year of the Public Integrity Council’s Work” in December 2017, there is a powerful spillover effect on the judiciary in Ukraine: the judges realized that all their activities may be subject to civil society scrutiny. Thus the evil ethos of impunity and corporatism has been broken. And in the long run, in my opinion, this is the outcome that is even more important than the list of names we got from the Supreme Court selection.
To be fair, the PIC role should also be viewed through the prism of reality. The Council can be compared with the prosecutor in a trial while the HQCJ as the bench must decide whether the prosecution has met the burden of proof. If not, acquittal is to follow. This is the role assigned to the PIC by law. The PIC’s conclusion that a candidate fails to meet integrity standards can be overruled by HQCJ, if no convincing evidence is provided. As in the real court process, such ruling does not imply that a candidate is impeccable.
The post-selection discourse has been marred by mutual accusations of the HQCJ and PIC. The PIC is blamed for lacking clear standards and criteria in assessing. And this is partially true, as the PIC lacks a standard methodology and assessment criteria. But it would be dangerous to try to fit it into a rigid legalistic grid of statutory defined integrity requirements. As one cannot easily define justice, one cannot define integrity. But what is contrary to the notion of integrity can and should be set out. And it wouldn’t be wise to miss a chance to incrementally improve the PIC and HQCJ’s work by setting at least negative criteria of what falls short of integrity.
Once again, the PIC’s modus operandi is to collect, verify and analyze information about candidates for a judgeship and deliver a reasoned opinion if the appointment of a certain candidate may be perceived by the society as jeopardizing public trust towards the Supreme Court. This should have also included inquiry into cronyism, liaisons with political factions and politically exposed persons, evidence in the public record of a judicial candidate’s views, courage and the ability to withstand the whims of public and political opinion, reputation, written records, to name a few. But we should not overlook the limits of the PIC’s resources and pro bono character of PIC members’ work. To cope with such tasks PIC should have sufficient resources. And this is another lesson and an issue that should be corrected by law-makers.
Several international experts have pointed out that the PIC has no right to assess candidates’ specific court rulings. I fully agree, taking on the role of an appeals court judge would impose on the PIC much higher requirements as regards expertise and case review time. The Council must assess a candidate’s judicial work as a whole, including its perception and assessment by the society, i.e. societal impact of a judgment should be in the PIC’s ambit.
Also, I concur with the opinion that conflicts of interest remain a weak point of the Council, meaning that practicing lawyers (advocates) may not take part in assessing incumbent judges. This obvious thing was overlooked.
To sum up, a close look at the selection process is needed, with rectifying legislative drawbacks and lacunae, tuning of bylaws and procedures. The PIC composition and capacities should be enhanced with its members receiving compensation for their work and efforts in a manner that would preserve their independence.
New supreme judges have diverse backgrounds and legal views. But I am confident that experience of tough public scrutiny, challenges of competitive selection dramatically increases chances that they will preserve their ethos of independence and professional self-respect to serve effectively as the highest arbiters, guided by the spirit of law and justice. They are facing a challenge to prove their integrity and persuade the society that the allegations raised against them have no ground.
And finally, both the HQCJ and PIC assumed and still bear tremendous responsibility before the public. Division of opinions between them on concrete candidates and even public disputes are natural, but both sides should keep in mind that specific disagreements should be addressed without undermining and calling into question the process as a whole. The alternative is a total disruption of the key Ukrainian transformation. The OSCE PCU together with our fellow partners from the international community is ready to provide good offices for those discussions if needed.
There is a third important agent – media, whose direct responsibility is not to take one side, but ensure people see a full picture. For such a complex thing as judicial reform, there is no black and white. And balanced coverage means that both drawbacks and improvements are highlighted. Otherwise, people wouldn’t make an informed judgment of the reform process, and the transformation might collapse under the weight of public disappointment.
Oleksandr Vodyannikov, National Legal Advisor, manages a portfolio of projects with Rule of Law and Human Rights Programme of the OSCE Project Co-ordinator in Ukraine. With this article, he expresses his professional views that do not necessarily coincide with the views and positions of the OSCE Project Co-ordinator and do not reflect an official position of the OSCE.
