New leaders, same questionable practices
In the frenetic moves Ukraine’s new leaders are making to shed the country’s recent past, they are demonstrating regrettable continuity in style and mentality with their predecessors. This is particularly seen in their unwillingness to separate the judiciary and legislative branches of power, with the same political motivation and manipulation of legal norms emerging. Moves are likely on Feb 25 to remove Human Rights Ombudsperson, Valeria Lutkovska. Others have already been taken to oust the Constitutional Court judges who voted to return the 1996 Constitution.
The point is not in whether criticism is justified. Viktor Yanukovych set to establishing control over all courts in the land within months of becoming president and the Constitutional Court passed , many questionable judgements including that regarding simple reinstatement of the 1996 Constitution. Even if MPs, many of whom just over a month ago voted without a murmur for laws establishing dictatorship in Ukraine, had the moral right to stand in judgement, they simply have no legal right to do so. It is not for parliamentarians to decide that judges have breached their oath. This term has been consistently criticized by the Council of Europe’s Venice Commission as too woolly and open to abuse. Abused it was, regularly, under Yanukovych. This is not practice for Ukraine’s new leaders to emulate.
Nor should they apply formal requirements only when they suit, and be willing to destroy real achievements for political ends.
A resolution has been tabled in parliament which proposes to remove Lutkovska from her post as Ombudsperson on the grounds that she did not take an oath. The pretext is seriously questionable since it was the opposition’s blocking of parliament which prevented her taking the oath.
It is manifestly only a pretext. Although the opposition failed to put forward an alternative candidate, they opposed Lutkovska whom they saw as too closely linked with the Yanukovych regime. They particularly objected to the fact that, in her capacity as Government representative at the European Court of Human Rights she had denied any political component in the detention of former Interior Minister Yury Lutsenko. As we know, this denial was dismissed by the Court in Strasbourg.
There have been a number of occasions since her election in April 2012 when Lutkovska’s refusal to comment on developments in the country, especially the politically motivated prosecution of Yulia Tymoshenko, Yury Lutsenko and others, or certain statements have aroused criticism, and by no means only from the political opposition.
Whatever our views, the current attempts to oust her are questionable for a number of reasons.
We may accept a certain degree of hypocrisy in MPs’ motives, but they must not prompt irresponsible actions. By removing Lutkovska in this manner, parliament will effectively return the previous Ombudsperson, Nina Karpachova to the post. Karpachova held the post from when it was created, with seriously dented legitimacy from 2006 when she stood for parliament and was elected as no. 2 on the Party of the Regions candidate list. For some time she held both posts, despite this being in overt breach of the Law on the Human Rights Ombudsperson. She and her Secretariat, while receiving generous funding from the state budget, did very little to improve the human rights situation in Ukraine.
However much statements made by Karpachova over the last two years have pleased the opposition more than Lutkovska’s silence, her reinstatement as Ombudsperson would be a retrograde step.
This is especially true since over the last two years Lutkovska and her staff have achieved a great deal in developing a national preventive mechanism against torture and in some other areas. During the months of protest, members of staff were out all the time endeavouring to stop the worst excesses against detained protesters, etc.
A number of civic organizations, including the Ukrainian Helsinki Human Rights Union, have issued statements opposing the planned moves. They cite the reasons above and also speak of fruitful cooperation with the Ombudsperson and her staff.
It is worth noting that even some of those who are less positive in their assessment of Lutkovska’s work over the last two years are negative about the planned move.
Too many of the decisions made over recent days have been made on political grounds. Each new administration in Ukraine has taken staffing and other decisions on the grounds of political loyalty or lack of such. It has thus far proved disastrous, and it is worrying that even with the truly unprecedented chance Maidan has given them, these not so new faces seem to be sinking in old habits.