Who gets to appoint judges?


A draft bill proposing to strip parliament of the power to appoint judges for life, but give this right to the High Council of Justice and President, as well as life tenure for the Prosecutor General will not have the opposition’s support needed for a constitutional majority

On Thursday the ruling majority took the first step towards passing a law which would remove the Verkhovna Rada’s role in appointing judges, and could remove any fixed term of office for the Prosecutor General.  The opposition is against any increase in the influence of the President on the judicial system and did not support the bill which gained 244 votes from the Party of the Regions, the communists and some non-affiliated MPs.  In fact however, since the bill proposes amendments to the Constitution, it requires a constitutional majority of 300 votes.

The bill removes parliament’s right to appoint judges to indefinite tenure, passing this right to the President who is supposed to act on the recommendation of the High Council of Justice.

The bill also proposes to remove the constitutional norm which stipulates a five-year term of office of the Prosecutor General. 

The proposed amendments to the Constitution on the judicial system were tabled in the Verkhovna Rada by President Yanukovych on 4 July this year.  The explanatory note asserts that the amendments are in accordance with the Venice Commission’s recommendations.  The draft law was passed to parliament without consideration of the opinion of the Constitutional Assembly which had drawn up its own draft amendments.  This second bill received an assessment from the Venice Commission on 15 June. 

The Venice Commission continues to support all proposals stripping the Verkhovna Rada of the right to appoint judges.

There is however no mention of the indefinite powers of the Prosecutor General which therefore has not been considered by the Venice Commission.

Andriy Portnov from the President’s Administration writes in the explanatory note that the EU demands greater independence for the Prosecutor General. He cites a Venice Commission opinion from 17 October 2006 which recommended that the Prosecutor General be appointed for life or for a longer period.

The opposition is against life tenure for the Prosecutor General.

Although the draft bill is among the so-called European integration laws and the opposition voted for the draft to be sent to the Constitutional Court on Sept. 5, they see a number of dangers in it.

The opposition has prepared a joint statement asking for the draft law to be reworked.

They are against the president having the power to appoint judges for life tenure.  They demand instead that judges be appointed only by the High Council of Justice which should be made up solely of judges.

The statement asserts also that the indefinite term of office for the Prosecutor General will lead to the person being in office for life and to untrammelled extension of nepotism.

The opposition points out that this would mean that the current Prosecutor General Viktor Pshonka could hold office until at least 2019 when he turns 65.

“Viktor Pshonka will be able to work for life, this is nonsense for Ukraine. And the court system will be totally concentrated in the president’s hands before the 2015 elections. The opposition will therefore not vote for it, and it will not gain 300 votes.”, Viktor Shvets, First Deputy Head of the Committee on Legal Policy and Batkivshchyna MP told the BBC.

Some other doubts regarding these and other changes can be found in Ukraine: When Reform isn’t  

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