Should the war against Russia be an obstacle for further reforms?
In the evening of February 23 I was checking my work calendar. I have set a reminder for the next day – the Ethics Council was supposed to continue its interviews with the candidates to the High Council of Justice (HCJ). A long awaited and ambitious reform of this institution has just entered the most important phase.
Future leaders of the Ukrainian judiciary were publicly questioned on every topic that might have raised doubts in their integrity. The transparency of the process and the scrutiny of the checks and interviews were unprecedented.
All looked good and I was expecting that the reform would go as planned. The only dark thought was we might not make it before a big war starts. And that is exactly what happened. From the moment when Russian tanks crossed the Ukrainian border in Chernihiv region and missiles hit first targets in Kyiv the nation had other priorities.
For almost two months no one was thinking about the reform. The Ukrainian civil society sector quickly switched to other activities aimed either at supporting our troops on the frontlines or raising international support for Ukraine’s struggle to fight the aggressor. But when the realization came that the Ukrainian state withstood the first wave of Russian invasion and that the fight will be long, a reasonable question came to our mind: should we wait until the war is over or should we continue the reforms?
The reform of the HCJ was not the only process of institutional changes that was stopped by the war. A similar process was about to start with regard to another judicial council.
Candidates to the High Qualification Commission of Judges (HQCJ) were submitting their documents. Another objective was the reform of the Constitutional Court of Ukraine. Although there was strong reluctance to proceed with it from the side of the authorities, the discussions and pressure from the public and the international partners would eventually lead to some positive changes.
When Russian president Putin announced his ambition to invade Ukraine he deliberately mentioned the reforms of the HCJ and the HQCJ. Of course the participation of the international experts in the reform for him is an example of western influence: Putin portrays Ukraine as a puppet state. While in fact, any democratic progress and strengthening of the institutional capacity of Ukraine was perceived by Russian leadership as a threat to their own plans to expand their autocratic rule to the neighboring country.
When the first shock caused by the invasion had passed, some within the judiciary and government called for the HCJ reform to be canceled for the time being.
They argued that the nation in war needs quick actions and that the selection processes envisaged by law was impossible. It seemed for a moment that Putin has at least partially achieved some success: Ukrainians won’t continue reforms while fighting. And since the war could last for months or even years, Ukraine will not use this time to strengthen its democracy and institutional compatibility with the West.
But Ukraine’s democracy is strong particularly due to the persistence of its civil society. With some effort put by the latter, the scenario of reversing changes was rejected. While our troops on the frontlines are defending our right to existence we have to make sure that our democracy not only withstands the pressure but is more capable and resilient. The reforms have to continue.
No doubt that the ongoing military activities require that processes planned for peaceful times are conducted taking into account new safety requirements. Personal safety of all the candidates and the members of the respective bodies is a must. While at the same time it is crucial that the civil society and the broader public have the means to conduct democratic oversight thus ensuring general trust to the results of the reforms. All the measures restricting the transparency of the processes have to be proportionate, otherwise the reform might be compromised by the lack of public support.
Continuing democratic reforms in Ukraine is even more important in view of Ukraine’s application for EU membership and our aspirations to join NATO. Ukraine is a democratic state, but we still need to develop our institutional capacity. Comprehensive reforms are not implemented in a day, especially when the nation is fighting a war. And that is exactly why Ukrainians should use every moment and opportunity to strengthen their institutions, so when the EU and NATO are ready we can swiftly and smoothly join them.
Stepan Berko, DEJURE Foundation advocacy manager
