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Vitaly Tytych is a member of the Public Integrity Council, the judiciary’s civil society watchdog.
President Petro Poroshenko has managed to deceive Ukraine’s foreign partners, who have effectively had to give up the idea of Ukraine creating an independent anti-corruption court.
This means that Western taxpayers’ money will be channeled to funding yet another fake judicial reform and to lining the pockets of corrupt Ukrainian judges. This should have implications for Western voters during future elections.
As a result of a fake “compromise” between Poroshenko and foreign donors, he will be able to set up a puppet anti-corruption court and stack it with his cronies.
The competition for the anti-corruption court will be entrusted to the discredited Soviet-style High Qualification Commission, which rigged the competition for the Supreme Court and brought the judiciary under Poroshenko’s control.
Moreover, the competition will be held under old rules, which will allow the High Qualification Commission to assign scores arbitrarily and subjectively.
The deception worked because Poroshenko has switched the agenda from the real problem – the commission’s inability to carry out an honest competition and flawed methodology for assigning scores – to an imaginary one: foreign donors’ veto powers.
According to the compromise, the seven-member Council of International Experts, which will be delegated by Ukraine’s foreign partners and donors, will be able to veto candidates for the anti-corruption court nominated by the 16-member presidentially controlled High Qualification Commission.
A joint session of the Council of International Experts and the High Qualification Commission will be able to override such vetoes.
Allies of President Petro Poroshenko insist that at least 16 votes should be enough to override vetoes by the Council of International Experts on candidates. This means that the High Qualification Commission’s 16 votes will be enough, and foreign donors’ opinion can be ignored.
Ukraine’s foreign partners say that at least 20 votes should be necessary to override a veto by foreign partners.
But in ether of the scenarios, the High Qualification Commission will be able to rig the competition for the anti-corruption court in favor of political loyalists.
Even if foreign donors have veto powers, the commission will still be the one choosing candidates. And, instead of choosing the best of the best, it will choose the worst of the worst.
Moreover, good candidates will not even run in the competition because they know they will be blocked by the commission.
There are only two ways to make the competition for the anti-corruption court honest and objective – to entrust it to foreign donors’ independent representatives (i.e. creating a chamber comprising such representatives in the High Qualification Commission) or making the assessment methodology fair and objective. These are not mutually exclusive, and both of these things can be done.
During the Supreme Court competition, 90 points were assigned for anonymous legal knowledge tests, 120 points for anonymous practical tests, and the High Qualification Commission could arbitrarily assign 790 points out of 1,000 points without giving any explicit reasons.
To make the competition’s criteria objective, the law on the judiciary must be amended to clearly assign 750 points for anonymous legal knowledge tests and practical tests (for competitions for both the anti-corruption court and all other courts). If parliament refuses to amend the law, the High Qualification Commission can simply change its regulations, which is even easier.
