Ukraine should re-commit to the rule of law and learn from the developments around the UK’s Internal Market Bill to remedy its constitutional crisis.
On Oct. 27, 2020, the Constitutional Court of Ukraine (CCU) adopted the judgment, which rushed civil society to the streets. Appealing to the principle of the independence of the judiciary from other branches of government, the CCU abolished the powers of the National Agency on Corruption Prevention (NACP) to check and publish assets declarations – not only of judges but of all public officials. The CCU also decided that providing inaccurate information in declarations or a failure to submit them in the first place did not pose much danger to the society and were punished disproportionately harshly. The court decriminalized such acts.
The judgment caused public outrage. It undermined Ukraine’s anti-corruption agenda and cooperation with its major partners, most notably – the European Union and the International Monetary Fund. Crucially, the judgment was an encroachment on Ukraine’s commitment to the rule of law and democratic values-based governance, which were at the core of the country’s 2013-2014 EuroMaidan Revolution that ousted President Viktor Yanukovych.
Calls to dissolve the court and reboot it with the new justices elected impartially with the involvement of international experts have increased.
In considering how to navigate the ongoing constitutional crisis and re-introduce the assets declaration provisions back into its legislation, Ukraine could learn from the debate around the UK’s Internal Market Bill and revisit the foundations of the rule of law.
The rule of international and domestic law
The early version of the UK government’s bill authorised the ministers to adopt regulations that might breach the UK’s domestic and international law obligations, including under the UK-EU Withdrawal Agreement.
“The rule of law requires compliance by the state with its obligations in international law as in national law”. The potential to breach international law contravenes the customary rule that states must perform treaties in good faith and may not invoke their domestic law as a justification for non-compliance. Both dicta are enshrined in the Vienna Convention on the Law of Treaties, to which both the UK and Ukraine are parties.
The UK legal community declared that the possibility to violate international treaties is unacceptable for a democratic state. It undermines the rule-based order domestically and damages the country’s reputation internationally. The controversial proposals were eventually rightly removed.
Learning from the UK developments, Ukraine should make sure that no questions arise about the supremacy of the rule of law for all branches of its government. The CCU judgment casts doubt on this.
The EU-Ukraine Association Agreement puts the rule of law and combating corruption at the core of the EU-Ukraine cooperation (articles 3, 14). Ukraine’s Parliament ratified the Agreement in 2014, making it part of its domestic law. Ukraine is also party to the UN Convention against Corruption and the Criminal and Civil Law Conventions on Corruption of the Council of Europe.
With its judgment, the CCU has, essentially, validated Ukraine’s partial departure from the mentioned international treaties and its domestic legislation incorporating them. The Court has not expressly ruled for a breach of international law as it was intended in the Internal Market Bill. Instead, its judgment, equally damaging in effect, has annulled the principal – and some of the most effective – domestic instruments implementing Ukraine’s international obligations to combat corruption.
The conflicts of interest and logic
The CCU case has more disturbing issues.
While the CCU appeals to the principle of judicial independence, it itself fails to act independently and impartially when the personal interests of judges are concerned. The NACP detected undeclared assets of numerous state officials, including the CCU judges. Two such judges failed to declare their conflict of interest and adjudicated the anti-corruption case nevertheless.
In canceling criminal responsibility for submitting inaccurate assets information as allegedly disproportionately harsh, the CCU did not provide any insight into its proportionality assessment. The NACP reacted by listing states which do provide the penalty of imprisonment for such violations. Given the pervasiveness of grand corruption in Ukraine and its cancerous impact on all fields of public and private life, the lighter forms of punishment such as minor fines and community service would be ineffective in eliminating it.
Lingering effects
The doubt about Ukraine’s commitment to the rule of law created by the CCU judgment has far-reaching damaging consequences.
The integrity of one of the highest courts in the anti-corruption case aggravates society’s already low trust in the judiciary. This diminishes social preparedness to accept future rulings in potentially sensitive, especially war-related, cases.
Compromising Ukraine’s adherence to its international anti-corruption commitments might create the wrong perception that Ukraine picks and chooses the international obligations it adheres to. Such a wrong image might undermine years of genuine efforts by the Ukrainian state and its civil society to develop a lawfare strategy to hold Russia accountable in international courts for occupying Crimea and supporting proxies in Eastern Ukraine.
Perhaps most detrimentally, the CCU judgment has defied young Ukrainian professionals, many of whom are Western-educated, who put their careers (and far more decent salaries) in business or abroad on hold and joined public service to help build transparent human rights-oriented rule-based governance in Ukraine.
In addressing this constitutional crisis, the Ukrainian state should remember that much more than just the country’s anti-corruption agenda is at stake.
Kateryna Busol is an academy associate at Chatham House, a London think thank. The views expressed are those of the author and do not necessarily reflect the opinions of the institutions she is or has been affiliated with.
