Ukraine’s President Petro Poroshenko signed a new law on Constitutional Court on July 31 that allows the president, parliament and the Congress of Judges to appoint their loyalists in an arbitrary way.
The bill which was backed by 245 lawmakers on July 13 stipulates the appointment of the Constitutional Court judges without an open and transparent competition.
The law supposedly introduces a selective principle of the judges’ appointment. However, experts say that the way it is written gives way for political appointments.
Flaws in selection
Just like it is now, the new Constitutional Court will consist of 18 judges, with president, parliament and the Congress of Judges each appointing six of them. The judges can be appointed for nine years without the possibility of re-appointment.
From now on, the candidates for the appointment will be selected by the special bodies that are in direct dependency from each of them: the president, for instance, will approve candidates selected by the commission whose members he appoints himself.
The candidates for the parliament’s and the Congress of Judges’ picks for the Constitutional Court will be selected by a special parliamentary committee and the Council of Judges, respectively.
However, the new bill doesn’t clarify how the candidates should be selected, meaning that the president, parliament, or the Congress of Judges can potentially appoint whoever they prefer to see in the Constitutional Court.
According to Roman Kuybida, an expert with the Reanimation Package of Reforms watchdog, the new law continues the tradition of political control over the Constitution Court.
“There will be no quality changes in the appointment of the judges of the Constitution Court,” he told Kyiv Post. “Political motives will dominate.”
The problem is, Kuybida says, that the three selective bodies won’t be doing a real competitive selection. Instead, they will simply approve every candidate that fits formal demands, without selecting the best ones. That will leave the actual selection under control of the president, parliament, and the Congress of Judges.
Svitlana Zalishchuk, a lawmaker with the Petro Poroshenko Bloc, agrees that the law doesn’t establish a transparent competition.
“The law doesn’t specify neither the number of people in the commission, nor competition’s criteria,” Zalishchuk said. “It also doesn’t give information on how and where the results would be published.”
Ombudsman factor
Another reason for criticism was the part of the law that cancels the secret voting for the parliament’s human rights ombudsman. From now on, the lawmakers will openly vote for the ombudsman, which allows for a politicized appointment.
During the voting for the new law on the Constitutional Court in the Verkhovna Rada on July 13, lawmaker Olga Chervakova presented an amendment to preserve the secret voting procedure. The amendment was passed, but didn’t make it into the final text of the law – presumably, because it was presented under the wrong number by mistake.
Earlier the heads of the prominent human rights organizations, including Transparency International, Kharkiv Human Rights Group, Crimea SOS and others signed an open letter to the president asking him not to sign the law without the amendment that would preserve the secret voting.
Despite criticism, Poroshenko signed the law and praised it.
In a video address published online on July 31, Poroshenko said that the new law will give Ukraine a “transparent competition” for the Constitutional Court.
He also highlighted one of the main positive changes that the law brings: It introduces the right for all citizens to file an appeal to the Constitutional Court by themselves. Earlier, the President, the Verkhovna Rada lawmakers, the Supreme Court or the ombudsman had to submit the appeal on behalf of a citizen.
The judicial experts argue that the Constitutional Court, which used to be a subservient tool of overthrown ex-President Viktor Yanukovych, is now controlled by Poroshenko in a similar fashion.
In 2014, the Verkhovna Rada fired five Constitutional Court judges for violating their oath by letting Yanukovych usurp power. Lawmakers urged the president and the Council of Judges to fire the rest of the judges. However, Poroshenko and the council have not done so.
Several judges of the court are being investigated on suspicion of helping Yanukovych usurp power. They allegedly got a $6 million bribe from the Party of Regions, according to the party’s secret accounting ledger published last year, although they deny the allegation.
