The Ukrainian parliament has undermined a major judicial reform bill by inserting conflicting amendments on the role of foreign experts, anti-corruption and legal activists say.
One of the amendments gives foreign experts a decisive role in the reform, while another amendment does the opposite.
The bill, which was passed by the Verkhovna Rada in the second reading on June 29, is meant to reform the High Qualification Commission of Judges, a body that hires and fires judges. It was signed by Verkhovna Rada Speaker Dmytro Razumkov on July 5 and sent to President Volodymyr Zelensky for approval.
The only way to resolve the conflict is for the president to veto the bill and send it back to parliament. This may significantly delay or block its adoption.
Foreign experts’ crucial role in the reform has been a requirement of the International Monetary Fund, the European Commission for Democracy through Law (Venice Commission) and Ukraine’s other foreign partners.
“I hope nobody managed to hide legal loopholes in the bill or distort its meaning with ‘spam’ amendments,” Zelensky said on Facebook on June 29. “The High Qualification Commission must and will be created in such a way that none of its members will have obligations before or links to the so-called judicial mafia.”
The President’s Office did not respond to a request for comment.
Legislative chaos
According to the bill, the selection panel for choosing the High Qualification Commission would consist of three Ukrainian judges and three foreign experts. At least four panelists will be needed to approve candidates.
An amendment by Anastasia Radina, head of the Rada’s anti-corruption committee, stipulates that, when the vote is split three to three, the foreign experts’ opinion will prevail. This gives international experts a crucial role in the reform.
However, a different amendment by Andriy Kostin, head of parliament’s legal policy committee, fails to give international experts a prevailing vote. Kostin, whom activists accused of sabotaging judicial reform, did not respond to a request for comment.
Both Radina and Kostin represent Zelensky’s ruling Servant of the People party.
Mykhailo Zhernakov, head of legal think tank Dejure, argued that Razumkov intentionally derailed the reform bill. Instead of sending it to Zelensky with conflicting amendments, Razumkov should have held another vote on removing the discrepancy, he added.
Now the only solution is to veto the bill, remove the discrepancy and pass it again, Zhernakov said. However, parliament may drag its feet and may fail to adopt a corrected version of the bill by the time the current legislative session ends on July 16, effectively postponing it until the fall.
Razumkov argued on July 2 that it was impossible to correct the discrepancy at the parliamentary level. He said that the bill may be vetoed and returned to parliament.
If it is vetoed, the legislation may be corrected during the current session, he said.
Other problems
There are also other obstacles that may block the reform.
One problem is that the discredited High Council of Justice, the judiciary’s unreformed governing body, will have a lot of say over who gets chosen to the High Qualification Commission, and this may sabotage the attempt at reform. The council will choose 16 appointees out of 32 candidates nominated by the selection panel, according to the legislation.
Under the new bill, half of the new High Qualification Commission members would be judges. Civic activists think this will preserve the old corrupt judiciary.
Moreover, it is not clear whether the legislation will be implemented at all. In 2019, Zelensky signed similar legislation to reform the High Qualification Commission but it was not implemented due to the High Council of Justice’s refusal to carry it out.
Vitaly Tytytch, ex-head of judicial watchdog Public Integrity Council, argued that the passage of the legislation was a trick by the Zelensky administration to get an IMF loan. After the money is disbursed, the authorities will likely derail the judicial reform to avoid losing control over judges, similar to what happened in 2019, he said.
