The Verkhovna Rada on Sept. 12 passed in the first reading a bill seeking to re-launch the judicial reform that President Volodymyr Zelensky’s team says was sabotaged by his predecessor Petro Poroshenko.
The legislation envisages fully replacing the composition of the High Qualification Commission of Judges, which vets and hires judges. The bill also stipulates halving the number of Supreme Court judges from 200 to 100 and selecting a new, smaller Supreme Court out of the old judges of the court.
However, much depends on whether the new authorities will seek to appoint professionals with integrity or tainted judges and political proteges to the new commission and the new Supreme Court, anti-corruption activists and legal experts say.
The legislation has also been criticized because it does not envisage replacing the composition of the High Council of Justice, the highest judicial governing body that appoints, fires and punishes judges. This contradicts earlier promises by Zelensky’s team to re-launch the council as well.
Both the High Council of Justice and the High Qualification Commission of Judges were accused of botching judicial reform and protecting corrupt judges under Poroshenko, although they denied the accusations. Zelensky and his team have agreed that the commission and the council had blocked the reform.
“The slightest inconsistency regarding the selection process of the two judicial bodies may result in them being captured by untrustworthy politicians again, and another reform opportunity wasted,” Mykhailo Zhernakov, the coordinator of the Public Integrity Council, the judiciary’s civil society’s watchdog, said in a Sept. 3 op-ed.
Halya Chyzhyk, also a member of the Public Integrity Council, told the Kyiv Post that she hoped necessary amendments to improve the judicial reform bill would be made in the second reading.
The Presidential Administration did not respond to a request for comment.
High Qualification Commission
Under the bill, a selection commission comprising three members of the Council of Judges and three members of the Public Council of International Experts, a foreign advisory body, will choose new members of the High Qualification Commission of Judges within 30 days after the law comes into effect.
The bill also seeks to apply lustration — a ban from holding state jobs — to Serhiy Kozyakov, the current head of the High Qualification Commission, and Zenovy Kholodnyuk, the head of the State Judicial Administration.
The DEJURE legal think-tank, Transparency International Ukraine, the Anti-Corruption Action Center, the AutoMaidan anti-corruption watchdog and the Center of Policy and Legal Reform made a joint statement, calling on the Rada to amend the bill and give foreign experts control of the selection process for the new High Qualification Commission. They said that four selection commission members out of six should be foreign experts.
One of the downsides is that the bill does not require the involvement of civil society representatives in the future High Qualification Commission, said Roman Maselko, a member of the Public Integrity Council, the judiciary’s civil society watchdog.
High Council of Justice
Members of the Public Integrity Council have criticized the bill for failing to replace the composition of the High Council of Justice. Civil society has called for re-launching the council, and Zelensky’s team had previously promised to do so.
Meanwhile, a new commission comprising three High Council of Justice members and three members of the Public Council of International Experts will be able to initiate the firing of members of the High Council of Justice and the High Qualification Commission if they violate ethics and integrity standards or the law, according to Zelensky’s legislation. The problem is that it will still be up to the unreformed High Council of Justice to fire them, which may sabotage the process.
DEJURE, Transparency International Ukraine, the Anti-Corruption Action Center, AutoMaidan and the Center of Policy and Legal Reform called for strengthening foreigners’ participation in the ethics commission. They said that four ethics commission members out of six should be foreign experts.
They also suggested that the ethics commission’s proposal to fire a member of the High Council of Justice or the High Qualification Commission can only be rejected by a joint meeting of the High Council of Justice and the ethics commission, given that at least two foreign experts uphold the decision.
Supreme Court
The yet-to-be-formed new High Qualification Commission of Judges will select a new, smaller Supreme Court out of the old judges of the court. Those who are deemed not worthy of the Supreme Court will be either fired or transferred to appeal courts.
It remains to be seen, however, whether the commission will fire tainted judges or only those disloyal to the new authorities, Chyzhyk said.
Under Poroshenko, the High Council of Justice and the High Qualification Commission of Judges appointed 44 Supreme Court judges who the Public Integrity Council says violated integrity and professional ethics standards.
Chyzhyk argued that creating an entirely new uncompromised Supreme Court by holding a new competition would be better than Zelensky’s proposal but may not have enough political support.
