After the Ukrainian government ordered its agencies to disobey a scandalous decision by the Constitutional Court that undermined the country’s anti-corruption institutions, legal experts, lawmakers and the president are looking for a way out of the crisis.
The options range from bad to worse.
On Oct. 29, President Volodymyr Zelensky registered a draft law in parliament that, if adopted, would fire all 15 judges of the Constitutional Court due to the “loss of trust and wrongful judgments.”
According to Zelensky, the judges have lost the public’s trust after they supported killing online asset declarations in Ukraine, putting the country’s anti-corruption reforms at risk.
But there’s one problem with Zelensky’s law: It violates Ukraine’s constitution, which states that Constitutional Court judges can only be fired by a vote of two-thirds of their colleagues. Justice Minister Denys Malyuska calls this a “disgusting trap.”
Experts and lawmakers poured in their suggestions for an alternative solution.
One of the most popular suggestions would freeze the Constitutional Court.
Mykhailo Zhernakov, head of DeJure, a non-government judicial watchdog, proposes increasing the number of votes required by the Constitutional Court to implement a decision from 10 to 15.
That would be a last-minute attempt to block the court from continuing to kill Ukraine’s anti-corruption legislation and roll back progress in other areas.
But if adopted, the decision won’t reform Ukraine’s malfunctioning court system, postponing changes for years. Experts say there’s no other legal way.
“This law doesn’t save us from bad decisions of the Constitutional Court of Ukraine,” says Daria Kaleniuk, executive director of Anti-Corruption Center.
“The quorum law, even if adopted this week, won’t save the reforms killed by the court,” she adds.
How we got here
No one in Ukraine holds more power than the judges of the Constitutional Court. The parliament, president or even law enforcement agencies have no oversight over the court’s judges, putting the country at risk of being dependent on potentially corrupt officials.
That’s what is currently happening in Ukraine.
On Sept. 16, the Constitutional Court ruled that some provisions of the law on the National Anti-Corruption Bureau of Ukraine (NABU) were unconstitutional, stalling the work of Ukraine’s most credible anti-corruption agency.
On Oct. 28, the Constitutional Court ruled to dismantle the online asset declaration system, canceling penalties for lying in officials’ asset declarations.
Furthermore, the Constitutional Court is set to cancel the lifting of Ukraine’s longstanding land moratorium, potentially kill the High Anti-Corruption Court and rule that the Deposit Guarantee Fund is unconstitutional, helping a large number of Ukrainian oligarchs fighting against the Ukrainian government in court.
According to Kaleniuk, if the Constitutional Court rules that lifting the land moratorium and giving the Deposit Guarantee Fund the ability to confiscate dysfunctional banks are unconstitutional, the parliament will have a hard time reinstating those policies.
“It will be a legal and a financial breakdown for Ukraine,” she adds.
Although the Constitutional Court’s rulings are obviously harmful for Ukraine, there is no legal way to hold the judges accountable.
The court’s powers are enshrined in the constitution. Changing the constitution requires the consent of the Constitutional Court.
According to the 149th article of Ukraine’s constitution, for a Constitutional Court judge to lose their job, the judge must either finish their nine-year term or be fired by 12 judges of the Constitutional Court.
Currently, there are 15 judges out of 18 available seats on the bench. The parliament, president and the judicial congress each appoint six judges. The parliament currently has two openings, while the judicial congress has one judge to appoint.
Three judges are set to end their terms in 2022, including Oleksandr Tupytsky, head of the Constitutional Court.
Zelensky’s bill remains problematic, unlikely to be passed
The president isn’t willing to wait until the judges’ nine-year terms run out.
Zelensky says the Constitutional Court is influenced by oligarchs and pro-Russian politicians, and that it can rip the country apart.
With that, he insisted that the members of his Servant of the People party vote for his bill that would fire the judges, even though it’s not a perfectly legal way to solve the crisis.
“History doesn’t judge winners,” said Zelensky on Nov. 2, in a leaked address to the Servant of the People faction, which numbers 246 lawmakers. “If I decide that the only way to solve the crisis is through my bill (that would dismiss the Constitutional Court), you must support it. If we find another, less conflictual way, we will propose another solution.”
Read also: Zelensky calls on his party to fire Constitutional Court; blames Medvedchuk, Kolomoisky factions
Later that day, Zelensky said he wants the bill to be passed at least in first reading, so it “hangs above the Constitutional Court judges’ heads” and stops them from passing detrimental rulings.
But the Constitutional Court isn’t ready to back down.
“Zelensky’s law on the reform of constitutional law shows signs of a constitutional coup,” Tupytsky said during an Oct. 30 press conference.
The president is urging his party to support the bill to reboot the court.
But the opposition doesn’t seem to support the president’s bill, which they see as a violation of the constitution or an attempt to usurp power by Zelensky.
Without the support of the opposition, the law may not receive the necessary number of votes.
Servant of the People lawmaker Oleksandr Dubinsky publicly rebuked Zelensky for his bill. Dubinsky is an ally of oligarch Ihor Kolomoisky, who will benefit if the Constitutional Court kills the Deposit Guarantee Fund on Nov. 3.
Kolomoisky is currently entangled in a legal battle against Ukraine’s central bank over PrivatBank, the country’s largest bank, which the oligarch owned before 2016.
Ukraine, through the Deposit Guarantee Fund, was forced to pour $5.4 billion into Privatbank after the oligarch handed the bank to the state. PrivatBank, now state-owned, accuses its former owner Kolomoisky of embezzling depositors’ money.
Lawmakers close to Kolomoisky are expected to vote against Zelensky’s proposition. Various Ukrainian media report that Kolomoisky influences at least 30 people inside Zelensky’s Servant of the People party, which is enough to make sure the faction doesn’t pass the bill.
As of late night on Nov. 2, the bill still wasn’t on the parliament’s agenda for the next day’s session.
On Nov. 2, Parliament Speaker Dmytro Razumkov registered a bill that would reinstate the online asset declarations ruled to be unconstitutional. Razumkov’s bill proposes to return the previous law without changes casting aside the Constitutional Court’s ruling.
Some say that this decision can be an alternative to Zelensky’s earlier proposal and can be a compromise between the parliament and the court.
Another option: Blocking the court
Legal experts have been proposing other ways to halt the Constitutional Court’s attack on anti-corruption, maintaining legality in the process.
The proposal to raise the court’s quorum from 10 to 15 judges would effectively disable the Constitutional Court until the most controversial judges’ terms run out in 2022.
Meanwhile, the parliament can vote to create a new, transparent, procedure by which Constitutional Court judges will be hired. This way, in two years, Ukraine can appoint trustworthy judges gradually rebooting the court.
However, the law has the potential of being blocked by the Constitutional Court.
“The constitution prohibits influencing the (Constitutional) Court. Therefore, judges can consider this law as tampering and ignore it,” wrote Kaleniuk as a response to Zhernakov’s proposal.
Furthermore, Zhernakov’s proposal doesn’t reform the court, rather freezes the problem and doesn’t overrule the Constitutional Courts rulings which have the potential of breaching Ukraine’s relations with foreign financial institutions such as the International Monetary Fund.
“It’s dangerous to not have a (functioning) Constitutional Court for two years,” says Kaleniuk.
Alternative solutions
Several legal experts have proposed alternative solutions to the ongoing constitutional crisis, most of them are either illegal or require consent from Constitutional Court judges.
The Anti-Corruption Action Center put forward nine potential options on how to reform the court. Most of them are improbable, such as to force judges to resign, ask several judges to stop attending sessions and sabotage the work of the court.
The Anti-Corruption Action Center also goes forward in explaining the legal way by which a reform of the Constitutional Court must take place. A specific constitutional amendment must be proposed by the president or parliament and supported by at least 300 lawmakers. After, the amendment must be greenlighted by the Constitutional Court and once again voted in by 300 lawmakers.
This scenario has a very low probability, according to the Anti-Corruption Action Center.
Another option is to charge judges that violated the law and to remove them in this way.
Case in point may be Tupytsky, the chairman of the court. On Oct. 30, the State Investigation Bureau opened a high treason case against Tupytsky over buying a land plot in Crimea in 2018, when the peninsula was already occupied by Russia.
However, proving that a judge has violated the law will take time, while the court may overthrow the very possibility of such investigations, ruling that they tamper with the court and are unconstitutional.
Additional proposals include either recalling judges by those who nominated them or canceling the decree by which the current judges were appointed.
It has a precedent. As soon as Zelensky took office he annulled some of the appointments made by his predecessor Petro Poroshenko, including last-minute appointments to the High Council of Justice, a body vetting and appointing judges.
However, both proposals are impossible to compel.
First, there’s no written procedure to recall judges from the Constitutional Court. If such a proposal would be voted in by parliament, the court may rule it unconstitutional, since the constitution doesn’t specify that a judge can be recalled.
Second, while Zelensky annulled Poroshenko’s appointments in the past, those appointments were done after Poroshenko lost the 2019 presidential election and the president had a formal right to dismiss Poroshenko’s appointees.
Kaleniuk says that the only way to save Ukraine from the Constitutional Court is to move forward with Zelensky’s bill.
“The risks of having a legal conflict (after the parliament fires Constitutional Court judges) are much smaller than the risks that Ukraine is currently facing,” she adds.
