The Global Zeitenwende
How to Avoid a New Cold War in a Multipolar Era
Ukraine has struggled with the law since its independence. Its judiciary is plagued by two main problems: political dependence and corruption. Political subservience extends from the district courts all the way up to the country’s constitutional court and Supreme Court. During deposed President Viktor Yanukovych’s rule, for example, courts were often merely tools for punishing political opponents and increasing Yanukovych’s own power. Meanwhile, widespread judicial corruption -- According to Transparency International, Ukraine ranks 144out of 177 countries in terms of perceptions of corruption -- has led to the public’s dismally low trust in the courts.
It is thus not surprising that one of the Euromaidan protesters’ top demands was for stronger rule of law. Nor is it surprising that the new government in Kiev has focused on scouring the judiciary and emancipating it from its political subservience. But how it has gone about that is troubling. The government has chosen to tackle the judiciary’s problems through lustration -- the process of weeding out (and denying future office to) the current judicial leadership. Proponents bill lustration as a clean-up operation that will dislodge Yanukovych appointees from their administrative positions throughout the court hierarchy and will discipline judges who perpetrated selective and politicized justice during Euromaidan. For others, judicial lustration will represent victors’ justice -- a purge of Yanukovych appointees to make room for the new government’s own political appointees.
Ukraine’s current leaders are thus in an unenviable situation. If they do nothing, they will leave themselves vulnerable to a hostile judiciary and will risk alienating some supporters. Mass dismissals, on the other hand, could anger many in the eastern and southern parts of the country and will only reinforce the judiciary’s politicization. Further, the current reforms do not even begin to tackle the issue of corruption and, in fact, could exacerbate it as judges scramble to protect themselves from dismissal.
The new government’s lustration plans came together within hours of Yanukovych’s ouster. First, on February 24, the parliament adopted a resolution to fire five constitutional court justices who had been appointed by the previous, pro-Yanukovych majority. The resolution also called on others -- namely, the acting president and the Congress of Judges -- to fire seven more justices. These 12, out of 18 total justices, had all previously voted to return Ukraine to a presidential system, thus handing more power to Yanukovych.
After the constitutional court, the government turned its focus on the ordinary judiciary. On April 11, its plan, called “On Restoring Trust in the Judicial System of Ukraine,” came into force. The new law terminates the administrative mandate of all chairs and deputy chairs across the country. All court secretaries for the high specialized courts and the appellate courts will lose their positions as well. In addition, the law stipulates the immediate dismissal of all members of the bodies that are responsible for internal discipline and judicial careers -- the High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HJC) -- as well as all delegates to the Congress of Judges. Moreover, the law excludes most of these individuals from ever being eligible for reappointment. And the HQCJ cannot draw new members from sitting parliamentarians, cabinet members, or anyone previously charged with corruption or convicted of any other crime. The same goes for HJC hires.
The law also created a performance review process aimed at identifying judges who violated their oaths of judicial ethics, limited Ukrainians’ right to protest during Euromaidan, or participated in cases against political prisoners and activists. Judges who delivered rulings in the electoral disputes over the 2012 parliamentary elections can also come under scrutiny, as will judges whose rulings have been cited for violations by the ECHR.
The records will all be vetted by a newly established Special Temporary Commission (STC), which will be stocked with people selected and appointed by the new governing majority. The STC’s 15 members will include five parliamentary appointees, five Supreme Court appointees, and five appointees made by the Government’s Representative on Anti-Corruption Issues (a position currently held by Tetyana Chornovol, an investigative journalist and Euromaidan activist). The new STC members cannot be parliamentarians, state officials, or sitting judges. And they cannot have served in law enforcement in the last ten years, as a court chair in the last five years, or have been charged with corruption offenses or have a criminal record. In other words, STC membership is closed for most everyone involved in any way with the Yanukovych administration.
The main rationale for cleaning out the judiciary is to remove judges who have violated Ukrainians’ civil and political rights by serving the regime rather than the constitution. And there are plenty: judges who attacked opposition figures, who suppressed Euromaidan, who looked the other way as Yanukovych amassed power. Yanukovych’s influence over the judiciary was on full display last December, when courts tried scores of protestors only to have them released on bail or to house arrest days later after Yanukovych gave some guarantees that many of the activists would be freed.
The new government might score some political points with the public by removing tainted judges -- many protesters have vowed to never forgive or forget the repression -- but probably not as many as it thinks. Lustration is simply not that important to the Ukrainian electorate, especially as bigger problems mount. With Russia menacing, the east descending into chaos, and the economy spiralling downward, pro-lustration rallies have drawn only a couple hundred activists. According to a recent survey, an overwhelming majority (78 percent) of Ukrainians do support some lustration policy, but most (54 percent) think that such policies should target only those involved in corruption. Only a small minority (six percent) would like to see the new government go after those responsible for violating human rights during the protests. In addition, only 13 percent of respondents think that judicial reform is a top priority. Even in western and central Ukraine, where the policy will likely be most popular, less than a fifth think judicial reform is a top priority.
In truth, the new government itself will be the biggest beneficiary of lustration. The process will remove from the scene most Yanukovych loyalists, who could otherwise sabotage the government’s new policies, including its efforts to deal with separatists in the east. There are already reports of judges in eastern Ukraine refusing to cooperate with new government officials. Hostile courts could also undermine the upcoming election campaign by selectively enforcing electoral laws, just as they have in the past.
Yet the short-term benefits for the government (and for justice) of lustration will become a long-term liability. The thorough purge of the judicial leadership would only remind judges that they can be punished for delivering politically incorrect rulings. Research in Latin American has shown that, when judicial tenure is not guaranteed and each incumbent purges the judiciary after coming to power, judicial independence tends to stay low under democratic and authoritarian governments alike. Lustration could thus harm judicial independence in Ukraine more than it helps.
Supporters of the policy like to point to neighboring Georgia, where judicial lustration appears to have been somewhat successful. After the 2003 Rose Revolution, President Mikheil Saakashvili implemented far-reaching reforms that led to considerable turnover in the judiciary. Since then, Georgia has made some progress in the area of rule of law. In 2003, its judiciary suffered from the same problems as other post-Soviet judiciaries -- dependence on politicians, low public trust, and corruption. But today, most studies identify Georgia as the head of the legal pack in the post-Soviet region (excluding the Baltics).
Taking cues from Georgia is problematic, however, because Saakashvili came to power with a much stronger mandate than Ukraine’s interim government, led by Prime Minister Arseniy Yatsenyuk. In January 2004, Saakashvili received upwards of 96 percent of the popular vote in a clean election. That gave him political capital to pursue radical and risky policies. By contrast, the Yatsenyuk government’s mandate is more limited. Yes, a large majority of Ukrainians would probably like to see the courts become stronger and more independent. But only a slim majority has given the Yatsenyuk government the power to make that happen. Firing scores of judges appointed by the Yanukovych administration may indeed be a step towards restoring trust in the judiciary in western and central Ukraine, where Yatsenyuk is popular. But it will not be seen that way in the east and south.
Another problem with the current judicial reform plan is that it sidesteps the other major issue with the Ukrainian judiciary -- corruption. The first draft of the lustration bill empowered the STC to check judicial records for both civil rights violations and evidence of corruption. But the current draft of the bill does not contain any references to corruption or how to deal with it. The rationale may have been that a special and temporary commission is not suited for such a complicated task. And that might be true, but the fact remains that trust in the judiciary will not improve unless the government tackles corruption. And public opinion surveys show that it is the Ukrainian public’s main concern right now; across all regions, over 60 percent of the population identifies the fight against corruption as a top priority.
If there is no anti-corruption component to lustration -- or anyone to guarantee that the STC and HJC are free from corruption -- judges involved in graft will rush to try to buy themselves a favorable performance review. And, by definition, they have the money to offer substantial bribes. Since all HJC and STC members will be appointees of the current parliamentary majority, many will believe (rightly or wrongly) that the new majority ousted Yanukovych in order to gain his corruption rents and control of the judiciary. To minimize the credibility of such allegations, the government should make sure that whenever the STC starts functioning, it operates with maximum transparency.
In Ukraine, judicial lustration is now a fact. But there is still a chance for the country to avoid the worst effects of it. For one, the government should signal that it purged the judiciary to promote the rule of law, rather than to use the courts to achieve its own political goals. Once the judiciary is staffed, Kiev should refrain from using it in a politicized way. It may be tempting to rely on a newly cooperative judiciary to contain and neutralize separatist challenges in eastern Ukraine. But the government should not attempt to do so. Unlike the Yanukovych regime, it should let the judiciary adjudicate any cases that it receives without interference. Rightly or wrongly, many in the east will still interpret a court ruling against a pro-Russian activist, delivered by a court with a newly appointed chair and deputy chair, as a miscarriage of justice. So, the government should rely more on formal and informal negotiations to restore order in the east and use the criminal justice process very conservatively and only as a last resort. As previous studies have argued, the power and legitimacy of new judiciaries increase when they are isolated from the political fray.
In addition, the government should decisively distance itself from the process of recruiting new judicial leaders. The judicial lustration law stipulates that new faces must fill the HJC and the HQCJ, the Congress of Judges, and the administrative positions in all courts. Yanukovych loyalists and allies of the current government who have previously served on the HJC and the HQCJ will be barred from returning to these institutions. The interim government has taken some important steps toward creating true formal judicial self-government. For example, it mandated that all court chairs and their deputies must be elected by their peers in a secret vote and can be dismissed by two thirds of their peers, also in a secret vote. But the government must also renounce all previous meddling with who gets appointed to an administrative positions to begin with. If the judiciary is to start building its independence, judges should elect their administrative leaders without political interference. This is a crucial step, and without it lustration will be little more than partisan revenge by the winners.