One of the key components of anti-corruption reform in Ukraine is the necessity for a thorough cleansing of the judicial system. The reasons for this should be obvious. You can purge the policing arm and the prosecutorial office of bad apples, but unless you insure that the courts and judges enforce the laws with honesty and integrity, then the effort is futile.
There is also little doubt that majority of Ukraine’s judges left over from the Yanukovich era are tainted and deeply complicit in all the shenanigans that his administration was up to while in power. During his kleptocratic reign, the court system and the judges presiding largely took their marching orders from the oligarchic elite, enriching themselves grandly in the process.
It was therefore with great hope that reformers greeted a government initiative several years ago to reconstitute the Supreme Court of Ukraine with new judges vetted by a High Qualification Commission who would examine all applicants to ensure that they met the highest standards of honesty and integrity. The government assured one and all that the process to do this would be transparent and apolitical. Well, the Commission recommended the appointment of 111 judges to the Supreme Court several weeks ago, and judging by the results, it is obvious that those high hopes were for naught.
Taking part in the process was the Public Integrity Council, a civil society watchdog organization that provided independent input to the selection process. It vetoed thirty of the applicants put forth for Supreme Court positions because there was sufficient evidence that they had breached ethical and professional standards while they held office under the previous administration. These judges had taken part in political persecution, human rights abuse and/or had assets and lifestyles that were way out of proportion to their official incomes. The Commission ignored the evidence and wound up approving twenty-five of these dubious candidates anyway for appointment to the Supreme Court. The Public Integrity Council also had serious doubts about many more candidates, but these too were ignored. There can be little doubt that powerful forces were at work to ensure that the political oligarchic elites could still control the legal system for their benefit.
The Commission made their recommendations to the High Council of Justice who make the final decision on appointments. There are twenty-one members of this council, nineteen of whom are current judges in the system that is already suspect and in need of reform. This in itself should raise some serious questions as to its impartiality. Further, some members of the council are also candidates for appointment to the Supreme Court, as is the current chair of the Supreme Court. The process is certainly bizarre to say the least.
The fact that such a significant proportion of the new Supreme Court judges are so obviously tainted discredits the whole process and leaves little hope that justice will be served in the future. One can have little doubt that should any of the key oligarchic players responsible for the blatant graft and misuse of power during the Yanukovich era ever comes before the Supreme Court, the process will be manipulated to ensure that such cases come before one of these tainted sympathetic judges that will be swayed by one means or another to render the “correct” judgment. They have had much experience doing exactly that in the past.
There has also been a strong movement by reformist forces to create new specialized courts that would deal only with anti-corruption cases. This was also a strong recommendation of the IMF who would like to see such a court before they advance further financial support to the Ukrainian government. Rather than rely on the morally and ethically suspect regular court system which might take a generation or two to rebuild any credibility, such new courts would be set up with judges that were rigorously vetted for integrity and competence. Such courts have worked to great effect in many other third world countries whose legal systems were compromised. The fact the President Poroshenko strongly opposes creating such courts says a lot about his real commitment to clean up the justice system.
The new Supreme Court appointments must be approved by President Poroshenko before they take effect. If he approves the nominees vetoed by the Public Integrity Council, then it will be a clear indication that he is less interested in reforming the justice system, and more interested in preserving the power and privileges of the oligarchic elite with which he will have clearly aligned himself with such a decision.
If this happens, it will be a clear turning point in the revolutionary movement that was spawned by the Maidan. It will imply that the Poroshenko solution to Ukraine’s political ills has failed and a more committed and bold leadership is required to clean up the mess of the past twenty six years of swamp politics.