Why and for whom were such questions developed?

Serhii Kalchenko,

PhD, Attorney

 

     Recently, the High Qualification Commission of Judges of Ukraine published on its website the list of questions for anonymous written test for the qualification evaluation of candidates for judges to cassation courts of the Supreme Court, adopted by the decision of the High Qualification Commission No. 198/зп-16 dated 30 December 2016 (http://vkksu.gov.ua/userfiles/perelik.pdf). Certainly, preparation of such volume of material does require hard work. Experts in different areas of law might have been involved. However, it is hard to say what the purpose of certain questions really is. The quality of some questions makes you doubt as to whether it is really the knowledge of the candidates for judges of the highest court in the judicial system of the country that has to be evaluated, and not that of freshmen?

    For example, let us consider those questions for evaluation of candidates for the position of judges at the Administrative Court of Cassation and that constitute immediate professional interest of the author, namely: election and referendum. The first impression is that the authors of the questions lack consistency in wording of the content. In particular, whereas Question 215 modestly refers to a “political party B”, at the same time Question 346 already indicates the full name of the actually existing party “People’s Front”. Where is the logic in presenting the material? Is it just a mere desire to remind everyone the name of a well-known political force?

    Question No. 346 has other surprises.  It suggests to identify possible subjects to nominate candidates for parliamentary election, and one of the options offered is ….”the Central Election Commission” (CEC). Perhaps the authors of the questions simply lacked imagination, as it is hard to imagine that a candidate for the position of the Supreme Court judge will reflect seriously on whether the CEC is authorized to nominate a candidate for MP!

    Unfortunately, we have to say that certain questions were developed using terms that are not envisaged in the electoral legislation. Thus, Question 349 refers to “electoral materials.” We can only be sorry for those candidates who will have to find the answer to this question, because it is unclear what kind of materials are meant? Maybe “materials for the election campaign”– a notion used throughout the electoral legislation? The reference to “the composition of the delegation of the precinct election commission” (Question 350) is merely amusing, however we are talking about evaluation of candidates for the position of a judge, and not for some school legal studies competition!

    Accuracy of facts in Question No. 348 can stalemate anyone. In particular, it states that the CEC allegedly received a claim on the violations by the CEC. The authors may be unaware that decisions or actions of the CEC can only be argued in court. Furthermore, such “claim” was allegedly received on 22 August and concerned the creation of territorial election committees (TEC) during the early parliamentary elections on 26 October 2014, and one of the committees “already consisted of 18 persons”.

    In this regard, we would like to remind that under part 2 of Article 107 of the Law of Ukraine “On the Election of Peoples’ Deputies”, candidates to TEC were nominated no later than 53 days before the day of election, i.e. until 2 September inclusive. Instead, the Resolution of the CEC No. 858 on the creation of TEC was adopted on 5 September (http://www.cvk.gov.ua/pls/acts/ShowCard?id=38140&what=0). Third, the CEC does not “refuse participation work of the committee” (it should have at least read “refuse participation in the work of the committee”), as Question No. 348 reads, but it can take a decision “on rejecting a candidate nominated for the position of a member of the TEC” (for example, http://www.cvk.gov.ua/pls/acts/ShowCard?id=38094&what=0, http://www.cvk.gov.ua/pls/acts/ShowCard?id=38096&what=0).

    Thus, taking into consideration all the confusion with dates and notions, what “correct” answer would the High Qualification Commission suggest to the question: “were the actions of the CEC legal?”

    In Question No. 334, one is supposed to identify “which stage of the election process is not regulated by legislation”. However, for example, under part 1 of Article 11 of the Law of Ukraine “On the Election of Peoples’ Deputies”, the election process is the implementation by the entities, defined in Article 12 hereof, of election procedures provided for by this Law. Thus, implementation of any other procedures that are not provided for by this Law (or as set out in Question No. 334, “not regulated by legislation”) cannot be considered as a “stage of the election process”. So it would be interesting to know: what would be the correct answer to this question according to the authors?

    If the above points are being criticized for their low legal quality, then the purpose of other questions is, to put it lightly, surprising. For example, Question 218 provides the following: “An initiative group of the all-Ukrainian referendum started collecting signatures in order to conduct the referendum on the issues that determined foreign policy of the country. Thus, it was proposed to include two questions in the referendum: “Do you agree that Ukraine should become a member of the European Union (EU)”; “Do you support Ukraine’s membership in the Customs Union (CU) with the Russian Federation, Kazakhstan and Belarus.” Can these questions be put to a national referendum and why?”

     According to the Constitutional Court of Ukraine, law shall not be limited by the legislation as one of its forms, but shall also include other social regulators, such as morality, traditions, customs, etc., which legitimized by the society. Therefore, we should enquire with the High Qualification Commission as to the morality of the idea even to hypothetically consider the possibility of establishing a union with a state-aggressor? How hard is it to word a question on the national referendum better, in particular on inclusion in the referendum of “several questions  of the one issue” (p. 2, Art. 3 of the Law “On All-Ukrainian Referendum”)? Are not arguments of the acts by the UN General Assembly, the Prosecutor of the International Criminal Court and of the Parliamentary Assembly of the Council of Europe enough for the High Qualification Commission in order to ensure at least impropriety of such wording? It would be great if the reason why Question 218 got into the list in the first place was merely due to someone’s simple unintentional inadequacy. However, some other questions might indicate otherwise.

    In particular, it appears that in one of these questions, namely No. 220, the authors were well aware of the situation in autumn 2013, and of the massive efforts to initiate a referendum on joining the “Custom Union”. Then, as a result, administrative courts undertook certain interim measures in a number of lawsuits , and banned the CEC to delegate its representatives to attend numerous meetings organized by a famous political force and a famous “social movement” until the end of adjudication of cases. Then, came the Revolution of Dignity, and the question disappeared from the “political radar.” So, it seems that someone is now interested in the consequences of the court decisions on the substantiation of those motions for interim measures.

    Instead, the above-mentioned Question 215, on the request by party “B” to the CEC to register an initiative group to collect signatures to conduct a referendum on joining NATO, was formulated in such a manner that the correct answer to this question would be for the CEC to refuse registration of such a group. Because it is not a political party that is the organizer of the meeting who “applies with a request” but the “authorized representative of the initiative group” who shall submit the relevant documents to the CEC”, as provided in part 11 of Article 30 of the Law “On All-Ukrainian Referendum”. 

    Finally, we would like to remind that neither the courts, nor the High Qualification Commission is a political body. Although it would be proper to mention that sometimes court decisions, including rulings of administrative courts, cause political consequences. Thus, we believe that the questions for the candidates for judges should be “depoliticized” as much as possible. According to the High Qualification Commission, the “published list is not exhaustive and will be updated.” That is why we hope that this update will improve the quality of some question and eliminate others.