Daniel Bilak: Nine quick wins for the justice system

Taken from the Kyiv Post

Dec. 15, 2014, 1:01 p.m. | Op-ed — by Daniel Bilak

Justice Minister Pavlo Petrenko announced that the registry of immovable property will become open to public as of Jan. 1. It's not yet clear how much information will be available to public, though.

Justice Minister Pavlo Petrenko announced that the registry of immovable property will become open to public as of Jan. 1. It’s not yet clear how much information will be available to public, though.

The Ministry of Justice should be commended – not two days since the passage of the Cabinet of Ministers reform program and it announced that the registry of immovable property will be made generally accessible to the public over the internet as of Jan. 1.

This issue has festered for years and has been a source of corruption and confusion in the marketplace. Bringing transparency and consistency to the property market will be a real boon to the protection of property rights.

More needs to be done, however, and quickly, as the legal system has suffered from profound neglect and abuse for many years. Below are nine practical, high profile and easy-to-implement “quick wins” involving institutional reforms and access to justice that will protect and promote the human rights and property rights of citizens and businesses by strengthening personal freedom, fighting corruption, and encouraging investment. Each of these reform initiatives should be judged against three guiding democratic governance principles: do they promote transparency, accountability and the effective delivery of services to the public.

A. Institutional/structural reforms:

Quick Win 1. Abolish deputy immunity. Once again, the Verkhovna Rada’s newly minted deputies have fallen silent on their electoral promises to abolish the blanket immunity deputies enjoy from prosecution. Abolition is an important matter of principle – maintaining this affront to the constitutional principle of equality before the law only undermines the government’s credibility, perpetuates the culture of impunity that permeates Ukraine’s institutions and breeds corruption.

A law should be put before the parliament to limit deputy immunity to the classic parliamentary privilege that anything said by a deputy in the chamber of the parliament is free from prosecution. This initiative will be seen by the public as having stood up for fairness, justice and equality before the law.

Quick Win 2. Repeal the Economic Code of Ukraine. Adopted as a sop to Ukraine’s post-Soviet state-owned enterprises and Soviet-era legal theorists, the provisions of Ukraine’s Economic Code are ideologically incompatible and in conflict with Ukraine’s excellent modern Civil Code. No other civilized country that I know of has two systems of regulating civil law relationships – statist vs market. If the state enters into contractual relations in the marketplace, then it should be subject to the same rules as all other actors. The inconsistencies between the codes has been a major source of corruption in the commercial courts, allowing judges to exploit the conflicts to allow corporate raiding and unlawful transfer of ownership of businesses, thereby undermining confidence and trust in Ukraine’s justice system.

Quick Win 3. Eliminate the Higher Commercial Court and investigate the judges. This initiative follows on from the previous recommendation. It is part of the wider strategic objective of creating an independent judiciary as a necessary element of credibly re-establishing the rule of law in Ukraine. Either a law or a presidential decree can be passed to re-organize the commercial court system by eliminating the Higher Commercial Court and transferring it’s jurisdiction to the Supreme Court (where, in my humble view, it belongs anyway), thereby lustrating about 80 judges.

An investigation should then be immediately launched into the source of funds of at least five reportedly millionaire judges of the Higher Commercial Court. I’m sure we can find 80 honest and capable jurists in the country (even foreigners, as is now popular) to replace those under investigation.

This initiative will improve the transparency, accountability and quality of service of the judicial system, and will be a major step in embedding the rule of law in the market.

Quick Win 4. Pass the Administrative Procedure Code. The Ministry of Justice has been working on with outside experts for many years. This “constitution for civil servants” is crucial to ensuring transparency and accountability in public administration by imposing the principle of legality in how civil servants take decisions affecting citizens rights. Especially important, it eliminates arbitrariness by imposing the principle of legality to the exercise of administrative discretion. The ministry can explain to the people that it has in this way ensured that civil servants will now act as public servants and not as public masters.

B. Open up the system of justice and improve legal services

Quick Win 5. E-governance for services. Transparency should be the hallmark of the Ministry of Justice. The minister should perform a complete review of the services performed by the ministry to the public and put as many of them on the internet as possible. In addition to the immoveable property registry, the registration of businesses, non-governmental organizations, births, deaths, marriages, the granting of licences, etc. can all be facilitated electronically. Commoditizing services by eliminating bureaucratic involvement will reduce corruption, enhance transparency and improve the efficiency and quality of services.

Quick Win 6. Ease registration of non-government and charitable organizations. The Viktor Yanukovych-era law complicating the registration of NGOs and charitable organizations should be immediately replaced with a simple law or administrative act encouraging and facilitating the volunteer sector. Given the explosion of volunteerism in the country, this simple initiative will instantly enhance the mnister’s and the government’s popularity, while making government more accountable to civil society and encouraging public-private partnerships.

Quick Win 7. Improve notarial services. Most of the public’s experience with the legal system takes place with notaries. This is the central nervous system of the legal system. Unfortunately, the encounter is often less than satisfactory because of corruption, long wait times, poor service, and expensive notarial stationary. Let’s make the notary system more service-oriented by merging state and private notaries into a single private system (the poor can receive targeted assistance to off-set the cost) and encourage competition by abolishing notarial districts. The number of notaries can be controlled by raising standards to ensure that only highly qualified and honest notaries are allowed to practice.

Quick Win 8. Individual constitutional challenges. Allow individuals to appeal violations of their constitutional rights directly to the superior courts all the way to the Constitutional Court. Currently, such references are at the discretion of the presiding lower court judge or prosecutor – a wholly unsatisfactory arrangement (especially in criminal cases) where the discretion of the court can in effect decide the substantive fate of the applicant. Due process, a fundamental component of the rule of law, demands it.

Quick Win 9. Communicate with and listen to the public. Enlist the people to help with reforms – the minister should explain the reforms and ask the people what they think. Simple feedback initiatives, such as performing local and nation-wide service delivery surveys on these and other issues will go a long way to re-establishing the government’s credibility with its citizens.

Daniel Bilak is managing partner for CMS Cameron McKenna and former adviser to the justice minister of Ukraine (1995-1997, 2005-2006).

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