Participants in 13th Kyiv Post CEO Breakfast debate whether judicial reform is real (VIDEO) - Feb. 21, 2018

The urgent need for an independent judiciary in Ukraine that delivers swift, fair, sure justice took front and center stage in a 90-minute conversation among top government, business and nongovernmental organization leaders.

The 13th Kyiv Post CEO Breakfast took place on Feb. 21 at the Hilton Kyiv. Sponsored by Evris law firm, the theme was: “Judicial Reform: Is it real?”

The 18 participants were deeply split on the answer.

Some argued that Ukraine has made tremendous strides in establishing rule of law, including the start of a newly constituted Supreme Court, and curbed powers on the General Prosecutor’s Office. Those who answered “yes,” that the reform is real, pleaded for more time to bring results. Some say they are already seeing results — with judges issuing clear, law-based rulings that are respected.

But others argued that Ukraine’s politicians are merely imitating reform because the nation’s oligarchs are still in charge of the economy, politicians and courts. And the last thing those oligarchs want, the skeptics said, is rule of law. Some rated judicial reform as a complete failure that must be started over because the current changes have done nothing to restore public trust in the judiciary. They accused the government of touting process because there are no results to show yet.

President Petro Poroshenko is increasingly unpopular for his failure to deliver on justice, most glaringly illustrated by the the fact that no one has been convicted in any major corruption case or in high-profile murders, such as the police sniper killings of nearly 100 people during the final days of the EuroMaidan Revolution that drove President Viktor Yanukovych from power on Feb. 22, 2014. Moreover, his handpicked prosecutors, Viktor Shokin and Yuriy Lutsenko, have done more to obstruct justice than seek it.

Poroshenko, on the fourth anniversary of the EuroMaidan killings, acknowledged on Feb. 18 the legal system’s abject failure to convict anyone for the murders and pledged to intervene to catch and prosecute those who ordered the crimes. Yanukovych is believed to have ordered police snipers to kill the demonstrators in a last-ditch bid to retain power and frighten the public into calling off the revolution. But the violence backfired spectacularly, making Ukrainians more resolute to oust him and prompting more people and governments to distance themselves from Yanukovych.

The situation has gotten so bad today that even the International Monetary Fund, Ukraine’s major creditor, has joined ranks with the nation’s Western partners to demand the creation of an independent anti-corruption court before Ukraine is granted any more IMF loans. Ukraine has received about $8.7 billion in loans out of $17.5 billion, but hasn’t received a tranche since April 2017.

Faced with the mounting international and domestic pressure, Poroshenko reversed course in recent months — going from adamant opposition to the anti-corruption court to grudging acceptance of its need. But the president’s draft bill does not meet the Council of Europe’s Venice Commission standards for an independent, credible body.

Meanwhile, public opinion polls show that the courts remain among the most distrusted public institutions in the nation. The situation was so bad for so long in the courts that judges bought their seats and were often seen as selling their rulings to the highest bidder or following the orders of political masters.

The longer that Ukraine goes without a functioning, unreformed, independent judicial system, the more its economy will suffer — and the more investors will stay away, participants said. As it is, ambassadors have complained that they spend an inordinate amount of time trying to help their nations’ companies resolve business disputes that arise as political insiders attempt raider attacks or government bureaucrats overstep their authority.

At stake is the future of Ukraine’s economy. With investors bypassing Ukraine, the nation’s economy remains small and sluggish — $100 billion a year. Businesspeople surveyed routinely cite the top three obstacles to investment as: 1. lack of property rights; 2. an untrustworthy judicial system; and 3. corruption. Foreign businesses in Ukraine suffer from the absence of a free, competitive market as oligarchs still control much of the economy and dictate the rules, participants said.

Some favored having international experts have more say in forming the anti-corruption court, while government officials are trying to limit foreigners to merely an advisory role. Others cited the example of Romania, which set up a National Anti-Corruption Directorate in 2002 that has led to scores of prosecutions and convictions of high-ranking officials for corruption.

The new 111 Supreme Court judges make more than $8,000 monthly, salaries designed to make them more independent and less susceptible to corruption. Judges are also responsible for disciplining wrongdoing in the profession, but critics say they have mostly ignored complaints against their own.

Great concern was also expressed for Ukraine’s accelerating “brain drain,” as more Ukrainians give up hope in the nation and find work abroad, including more than 1.2 million in neighboring Poland alone. Ukraine still has advantages that can turn around the situation, participants said, including a highly qualified workforce and the ability to export goods and services at competitive prices.

But without genuine rule of law, the situation is not like to improve, many concluded, as more Ukrainians don’t see a future at home. To create the pressure an effective judiciary, Ukraine has an active civil society, businesspeople demanding change and international support. one participant said, taking the optimistic view.