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Ukraine: judicial reform advances despite fraying parliamentary majority

Marcin Jędrysiak

On 16 September, Ukraine’s Verkhovna Rada adopted a law establishing the Specialised District Administrative Court (SOAS) and the Specialised Administrative Court of Appeal (SAAS). The bill was supported by 239 MPs, including 193 from President Volodymyr Zelensky’s Servant of the People party, 10 from Holos, 14 from Dovira, 9 from For the Future, 8 unaffiliated MPs, 5 from Platform for Life and Peace, and 1 from Restoration of Ukraine. No MPs voted against the bill, although 37 abstained and 40 did not take part in the vote.

The jurisdictions of both courts were defined as early as last February; the recent vote concerned their formal establishment. The SOAS will hear complaints against acts issued by central government bodies, including the Cabinet of Ministers. It will also handle matters such as registering political parties, banning organisations, and hearing appeals against decisions made by selection commissions regarding the appointment of heads of state agencies, including the National Agency on Corruption Prevention and the National Anti-Corruption Bureau of Ukraine (NABU). The SAAS will serve as the second-instance court for rulings issued by the SOAS. On 15 September, the High Qualification Commission of Judges approved the composition of the committee responsible for selecting judges for the new courts. It will include three international experts and three nominees from Ukraine’s Council of Judges.

Appointing untainted judges to the new courts could help strengthen the rule of law in the country, as they will be tasked with overseeing the legality of acts issued by the central government. At the same time, the outcome of the vote highlights the growing difficulties that Servant of the People faces in maintaining its informal coalition in parliament. These problems stem primarily from the failed attempts to curb the independence of anti-corruption institutions last July and the instrumental treatment of MPs that accompanied those efforts.

Commentary

  • The establishment of the new courts marks a significant step in judicial reform. They will replace the Kyiv District Administrative Court (OASK), which was dissolved in 2022 after its judges were accused of corruption and of yielding to political pressure. The SOAS and SAAS will be important institutions, as they will oversee the legality of acts issued by the state’s key governing bodies. The establishment of the two courts was envisaged both in the Ukraine Plan (a reform programme included in the EU’s Ukraine Facility) and in the International Monetary Fund’s Extended Fund Facility. Disbursing further tranches of macro-financial assistance from these institutions depends on progress in the implementation of the reforms set out in these frameworks.
  • The success of the reform depends on whether the expert commission appoints judges of integrity. In a troubling development, two of the three commission members nominated by the authorities have been named in journalistic investigations into corruption. This demonstrates the judiciary’s resistance to change within its own ranks and, most likely, the government’s desire to retain control over the selection process — an effort that risks squandering the opportunity for a fresh start in administrative justice. One factor that could help reduce resistance from these groups is the mechanism for selecting judges: in the event of a tie between Ukrainian and international experts, the votes of the latter will prevail. This arrangement is the result of pressure from Ukraine’s Western partners.
  • The narrow margin in favour of adopting the law reflects the growing difficulties faced by Servant of the People in parliament. In practice, its outright majority (a minimum of 226 out of 450 votes) has been illusory since at least the start of the full-scale war. Since then, the functioning of Ukraine’s Verkhovna Rada has relied on an informal coalition between Servant of the People, oligarchic factions such as Dovira and For the Future, and two offshoots of the Opposition Platform – For Life, which was banned in 2022: the Platform for Life and Peace and, Restoration of Ukraine. Zelensky’s party has also received support from some MPs of Holos, European Solidarity and, occasionally, Batkivshchyna. The outcome of the vote demonstrates the growing assertiveness of MPs formerly affiliated with OP-FL, a trend that has not yet evolved into open opposition, but is reflected in the large number of deputies who abstained or did not vote: eight out of nine present MPs from Restoration of Ukraine and nine out of 14 present MPs from the Platform for Life and Peace.
  • The informal parliamentary majority came under strain after the failed attempts to restrict the independence of anti-corruption bodies (see: ‘Ukraine: the independence of anti-corruption bodies is being dismantled amid scandals involving top politicians’ and ‘Ukraine: Verkhovna Rada restores independence of anti-corruption bodies’). MPs were frustrated first by pressure to adopt the controversial changes, then by the Presidential Office’s attempts to shift responsibility for them onto parliament, and finally by being forced to vote in favour of measures to mitigate their consequences. Some deputies also fear retaliation from the NABU and the Specialised Anti-Corruption Prosecutor’s Office (SAP), as they reportedly demanded protection from prosecution by these bodies as a condition for supporting the legislation. Disputes with coalition partners may soon make it difficult to assemble a majority for votes important to the president, or require steps that bear the hallmarks of political corruption.