COMMENTARY: Reforming the judiciary in Ukraine (07/16/06)

COMMENTARY

Reforming the judiciary in Ukraine

by Judge Bohdan A. Futey

On March 22 the National Committee to Strengthen Democracy and the Rule of Law in Ukraine adopted a new Concept Paper for the judiciary in Ukraine. This Concept Paper was the result of the mandate given by President Viktor Yushchenko in his inaugural address on January 23, 2005, to establish an independent judiciary and a civil society based on the rule of law.

Therefore, the aim is clear: to strengthen judicial independence and the rule of law in accordance with Ukraine's Constitution, as well as standards approved by the European community and the rest of the free world.

In my opinion, this concept is a valiant effort to strengthen some aspects of court proceedings and guarantee citizens access to the courts, but as a whole it seems to me that it fails to address the problem of reforming the judiciary in-depth, and provides for additional ways to exercise control over the judiciary.

Furthermore, it may be in conflict with the Constitution of Ukraine as enacted on June 28, 1996; it violates the principal of separation of powers (Article 6) and the rule of law commitment (Article 8). The idea of having government inspectors for the judiciary is not an encouraging practice (guarantee) for judicial independence. Also, it fails to address many aspects of the present law on the judiciary and it undertakes to provide solutions that are not very democratic. It barely touches on aspects of education at law schools and the role of legal/professional organizations (like the American Bar Association in the U.S.).

I will not make any additional comments at this time, but I am willing to do so at a roundtable discussion, conference or other fora on this subject.

The judiciary in Ukraine, the United States and Europe should be somewhat alarmed. Judges should be participants in the discussion of these issues as they relate to Ukraine's Constitution, the Law on the Judiciary and the Law on the Status of Judges. Naturally, they should reserve their comments strictly to the relationship of the proposed concept on judicial independence, the Constitution of Ukraine and the rule of law.

Judicial independence does not mean the judges do as they choose, but do as they must in accordance with the Constitution and laws of the country. Judicial independence in the final analysis will depend largely on the conscience and courage of the judges themselves. Judges will not be respected until they respect themselves.

There are two aspects in which judges must be independent. First, they must be honest brokers, in that they are independent from and neutral among the parties that appear before them. Judges must decide matters before them impartially, on the basis of the facts and the law, without any restrictions, improper influences, inducements or threats, direct or indirect, from any party or institution or for any reason. A judge's moral commitment to this form of independence eliminates favoritism and corruption from the nation's judicial system. If judges fail in this duty the public will lose confidence in the basic equity of its society, generating cynicism, anger and instability.

Second, the judiciary, and hence each individual judge, must act as co-equal and independent of the other branches of government. Judges are independent in this sense if they are not beholden to any other branch of government or political party. It is vital that courts have jurisdiction and the power to restrain the legislature or executive by declaring laws and official acts unconstitutional when they abridge the rights of citizens. Further, for judicial independence to have practical effect, the courts' interpretation must be accepted and enforced by the legislative and executive branches of government.

As there cannot be a market economy without private ownership of property, there cannot be a system based on the rule of law without judicial independence.

In addition, the judiciary needs to have its own constituency, primarily the legal profession and strong bar associations. These will be responsible to expose unethical practices of the judges and/or coercive tactics upon judges and to enlist the press on their side. In the United States the major defenders or critics of the judiciary are members of the legal profession themselves (ABA), law school professors and the news media.

It would be refreshing and welcome news if professors of law schools in Ukraine would start to speak out, along with the association of lawyers, jurists, the Ukrainian Bar Association and, hopefully, the World Congress of Ukrainian Jurists.

There is no question that the judiciary in Ukraine needs to be reformed. Key issues and/or problems with the judiciary are not addressed. For example, the legal crisis with the Constitutional Court of Ukraine, which since October of last year lacks a quorum, is not addressed at all.

What is needed is to strengthen the checks and balances - not control over the judiciary by the executive. Providing adequate salaries for judges, guarantees of appropriate funding and assistance for the courts, prompt publication and availability of judicial decisions, transparency in decision-making and enforcement of judicial decisions are ways to eliminate corruption among the judiciary. Nevertheless, greater access of citizens to judges should not mean or indicate ex parte communications behind closed doors. This practice should be eliminated completely.

In the United States, the Federal Judicial Conference is authorized by Congress to create and enforce rules of procedure and evidence, which the Supreme Court may adopt, modify or reject. The Federal Judicial Conference employs various advisory committees, whose members include judges and lawyers, to propose new rules and modify existing ones. Meetings of the advisory committees are open to the public, and members of the bar may attend to give their suggestions. They may also mail their comments to the committees at any time.

Judges and attorneys often hold conferences to discuss the procedural and evidentiary rules, submit comments to the advisory committees, and publish articles in scholarly journals criticizing the rules and proposing changes. If the rules are adopted by the Supreme Court, these rules become binding.

Also, it would be worthwhile for the National Committee to Strengthen Democracy and the Rule of Law to review the recent assessment done by the ABA Central and East European Initiative and incorporate suggestions provided in that analysis. This report, the Judicial Reform Index for Ukraine, assesses how the conditions related to judicial reform and judicial independence in Ukraine correlate with fundamental international standards in this area. The judiciary is analyzed through a prism of 30 factors covering areas such as judicial qualification and education, judicial powers, financial resources, structural safeguards, accountability and transparency, and efficiency of the judicial system.

Unfortunately, the results illustrate that Ukraine scored positively only on four of these factors. On the other hand, 15 factors received a negative correlation, including most factors related to lack of independence in the judicial decision-making and external interference in other aspects of the work of the judiciary, dire financial conditions of the courts, and lack of transparency of court proceedings and documents.

It is hoped that the debate on judicial reforms will continue and that the Parliament of Ukraine, after it begins functioning, will seriously consider all views, including those of the judges of Ukraine, before it adopts reform that will affect judicial independence for many years to come.

Bohdan A. Futey is a judge on the U.S. Court of Federal Claims in Washington, appointed by President Ronald Reagan in May 1987. Judge Futey has been active in various rule of law and Democratiza-tion Programs in Ukraine since 1991. He served as an advisor to the Working Group on Ukraine's Constitution (adopted on June 28, 1996).

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