Marsz Tysiąca Tóg dwa lata później. Suwerenność i praworządność – rola sądów po pandemii COVID-19
The role of the judiciary in Ukraine
Joseph Nadeau*
Good evening
I would like to thank my good friend Judge Jędrys and Iustitia for inviting me to be part of this historic moment, recognising the first March of a Thousand Gowns and exploring the future of the Ukrainian judiciary.
Until the country emerges from the rubble and the devastation that this continuing outrageous war has caused, the eventual role of Ukrainian judges will be hard to predict. Ukraine has endured immeasurable human suffering and will continue to suffer losses that will affect every aspect of life, including its judicial structure. Will rebuilding after the massive destruction lead to autocracy? Or will there be a move toward more democratic principles?
Who will control the government of Ukraine?
How will the ruling party rule?
How will new judges be selected?
How will old judges be replaced?
How will judges gain and maintain independence?
To answer these questions, we can look to the role of judges after conflict in two other countries.
One is the role of the Iraqi judiciary after the fall of Saddam Hussein.
In June 2005, I worked with the Chief Justice of the Supreme Court of Iraq and 20 of his senior judges in a workshop to help them agree on constitutional provisions they could recommend in order to improve the judicial system and enhance judicial independence. The judges also engaged in strategic planning for the development of the Iraqi judiciary.
By the end of the workshop, the judges had agreed on 14 recommendations for constitutional provisions, which the people of Iraq subsequently adopted. They planned for a more inclusive judiciary, more secure and functional courthouses, more control of management of cases and other important reforms.
As with all important tasks, these were largely accomplished thanks to the courageous leadership of the Chief Justice. Everyone in attendance responded enthusiastically to his vision for a new judiciary. Sadly, his only son, an Iraqi lawyer, was assassinated a year after the conference.
The extent to which the words in the constitution, or in any laws for that matter, result in court improvements and the independence of the judiciary in Iraq, or any country, especially during continued conflict, depends upon the goodwill and high motivation of the country’s leaders. That kind of good will and high motivation will also be important to the future of judicial independence in Ukraine.
For another example of possible roles for Ukrainian judges, we can look to the work of Polish judges.
In 1995, after the country’s break from communist rule, I participated in a programme in Bulgaria with Supreme Court Justice Theresa Roemer and several regional judges. They were eager to engage in strategic planning and to concentrate on judicial education and strengthening individual performance as ways to continue the development of judicial independence. I met with Polish judges again in Warsaw in 1996, at a conference with judges from 15 neighbouring countries, discussing judicial education and the role of the judiciary. Polish judges were in the forefront of improving their system of justice, and in instituting regional judicial education programmes.
In recent years, it has been reported that Poland’s Law and Justice party has targeted the judiciary with laws aimed at the structure and function of the judicial branch. Those actions have been condemned by the European Union, International and European associations of judges and by law professors and editorial writers around the world.
Judge Jędrys has spoken to me and I have read about the continued commitment of judges who strive every day;
– To uphold the constitution,
– To protect individual rights,
– To preserve independence and
– to protest unjust laws.
Will the Ukrainian judiciary have this same commitment to the rule of law? Will they be able to solve the problems they are certain to face? As everyone knows. it is easier to identify problems than to solve them.
Whether there are solutions that might work for the judiciary of Ukraine, or any country that is planning to rebuild and restore judicial independence, depends heavily upon its culture, its history, its institutions and the nature of its government. However these characteristics may differ, judges should play an important part in rebuilding judicial systems, just as they did in Iraq and Poland. Old and new Ukrainian judges should have a role in drafting laws affecting the judiciary. Judges should also have the autonomy to adopt their own codes of conduct and the ability to enforce them; they should find ways to improve the conduct of judges who do not perform in a professional manner, in order to demonstrate that they deserve everyone’s trust.
Ukrainian judges should form organisations like Iustitia and join international associations of judges. Almost any programme to promote the rule of law and an independent judiciary will require the assistance of other nations and private organisations. As they rebuild, judges would be wise to seek assistance from non-governmental organisations in developing programmes that enhance the independence of the judiciary. How public and private Ukrainian institutions respond to judicial efforts will be important in defining the role of the judiciary.
After 25 years of international work, and when considering recent events in Ukraine, Poland and the United States, I know this to be true:
Democracies are fragile, and the rule of law is easily threatened.
A lack of independent courts and the absence of the rule of law in Putin’s Russia allows his absolute control and his inhumane conduct to go unchecked. Although in times of disaster people usually unify in support of the existing government, what remains for judges and for the people of Ukraine is the question of whether the continuous threat and horror of war means they will be ready to challenge any trend moving them away from democracy. Moving toward a more democratic approach can be done now without direct repudiation of the current Ukraine administration. Solutions are not easy and they do not come quickly. In the case of Ukraine they may take generations.
Now please permit me some closing thoughts.
Violence is not the only way to destroy democratic principles. The gradual erosion of accepted norms, such as freedom of speech, freedom of the press and freedom to gather in peaceful protest, also threatens democratic principles. We cannot talk about the challenges to the rule of law without acknowledging the 6 January 2021 storming of the U.S. Capitol by insurrectionists trying to prevent the lawful election of the president of the United States. The attempt by Trump and his supporters to overthrow the election, and the failure of many elected leaders to acknowledge one of the most secure elections in our history, is as infuriating as it is frightening.
But rather than talk about what frightens me, rather than talk about what makes me angry, let me tell you what I believe in. I believe in the law. I believe in the fabric of our judicial systems. Is the U.S. judicial structure fragile? Yes. But it has also demonstrated its strengths. It is important to know that 60 state and federal judges, appointed by leaders of both political parties, rejected the attempts by Trump and his supporters, in 40 unfounded lawsuits, to use the courts to support the overthrow of the 2020 election.
Once again, judges were at the forefront of the struggle to uphold democratic principles. The judiciary does not have a military and it does not have money to enforce its rulings. So judges everywhere must continue to struggle to maintain the moral imperative; to justify independence.
For support of their judgments, courts depend upon:
– The people’s trust and acceptance of the role of courts in protecting individual rights, The people’s belief that judges are fair;
– Their conviction that judges are beyond reproach and;
– their ability to see that judges demonstrate the highest moral standard.
When the courageous people of Ukraine eventually prevail, they will have to rebuild, and judges must be an integral part of the process. How judges get involved, how they respond to the challenges they face, will be important Not just for their courts. Not just for their countries. But for the world. We must hope that judges in emerging democracies everywhere can find inspiration from the courage that Poland’s judges have shown.
In that struggle, which will not be easy, I wish you and the judges of Ukraine, and the people of your countries, Godspeed and the strength to persevere. For the privilege of participating in this important programme, I thank you.
* Remarks of Justice Joseph Nadeau. N.H. Supreme Court (Ret.).