When the Constitutional Court undermined Ukraine’s anti-corruption reforms, it sparked a national scandal with potential international ramifications.
Now, President Volodymyr Zelensky is trying to resolve the crisis, but his attempts face polarized reactions in Ukrainain society.
In the early hours of Oct. 30, Zelensky filed a draft law to Verkhovna Rada that seeks to overturn controversial decisions of the Constitutional Court and fire all 15 of its judges. The parliament may consider the bill during its next session on Nov. 3.
Some — including anti-corruption activists — were quick to claim a victory for democracy and common sense. But others saw the move as unconstitutional or illegal. And Zelensky’s opponents accuse him of trying to usurp power.
The crisis began with several highly controversial decisions by the Constitutional Court that pose a direct threat to Ukraine’s relationship with the West. But the final straw came on Oct. 27, when the court delivered a potentially terminal blow to the country’s anti-corruption reform by declaring Ukraine’s entire asset declaration system for state officials unconstitutional. That system had been a crucial element of the anti-graft system operating since 2015.
After a public outcry, Zelensky stepped in to try and save the anti-corruption infrastructure.
He convened an emergency meeting of the National Defense and Security Council on Oct. 29, which ordered the government to instruct the asset declarations’ monitor, the National Agency for Preventing Corruption (NAPC), to reopen the registry despite the court decision.
Public access to the database was restored a few hours later, at midnight. The registry was only closed for 30 hours.
Zelensky then pressed forward with his urgent draft law, which aims to overturn the decision of the Constitutional Court, deeming it powerless. In his bill, Zelensky accuses the judges of “conflicts of interest” and of “an attempt to overthrow the constitutional order and seize state power in Ukraine.”
The head of the Constitutional Court, Oleksandr Tupytsky, directed accusations back at Zelensky, saying his draft law is a “constitutional coup” and illegal.
What the law says
There are indeed questions about the legality of Zelensky’s solution to the crisis.
Neither Ukraine’s constitution, nor other legislation provides the Verkhovna Rada with the power to dismiss the judges of the Constitutional Court.
A Constitutional Court judge can be fired only if two-thirds of the other judges vote for it, according to the constitution.
The way to remove the court’s judges would be to change the constitution. The parliament can do that, but any such change would have to be approved by the Constitutional Court.
In other words, any legal way to disband the Constitutional Court would require the cooperation of the court itself.
Zelensky, however, wants the Verkhovna Rada to dismiss the judges immediately and without changing the constitution.
That suggestion has split society.
Some praise Zelensky’s leadership and say that justice is more important than following the exact letter of the law.
Others warn that Zelensky might be solving the crisis by creating an even bigger crisis.
Zelensky’s opponents seize opportunity
Zelensky’s political opponents jumped on the opportunity to criticize him.
The most vocal defenders of the Constitutional Court, unsurprisingly, were members of the Opposition Platform – For Life, a pro-Russian party with 46 seats in parliament. It brought the case over the legality of anti-corruption bodies to the court in the first place.
The party vehemently defended the court and its ruling, accusing the president of putting pressure on it and violating the court’s independence. News channels associated with the party — 112, NewsOne and ZIK — also covered the street protests against the court’s ruling as “pressuring the court.”
Yulia Tymoshenko’s Batkivshchyna party, which has 24 members in parliament, echoed the criticism, calling Zelensky’s suggestion unconstitutional.
Even pro-Western forces are split on Zelensky’s approach.
The European Solidarity faction led by Zelensky’s predecessor and rival, ex-President Petro Poroshenko, seized the opportunity to criticize the president and lashed out at Zelensky’s move against the court.
“An unconstitutional decision will only deepen the crisis. The next initiative of Zelensky, by this logic, may be a decree on a lifelong kingship,” lawmaker Iryna Gerashchenko, one of Zelensky’s notorious critics, wrote on Facebook.
The liberal Voice party, which has 19 seats in parliament, mostly supported the disbanding of the Constitutional Court. But the faction’s head, Serhiy Rakhmanin, was one of many lawmakers who called Zelensky’s suggestion to fire the judges illegal.
“An attempt to restore the law by violating the law is called lawlessness,” Rakhmanin said on Facebook. “If the Constitutional Court can be disbanded by law, then the results of the presidential election can be annulled by a decision of the utilities company.”
Ex-lawmaker Hanna Hopko also believes that this decision, if passed, is dangerous in the long-term perspective.
“Solving the problem of threat to national security by violating the constitution will be like a delayed-action mine in the future. With the support of the Russian Federation, the judges will appeal and will go all the way to the European Court of Human Rights,” Hopko said on Facebook.
This means that it may be difficult for Zelensky to find enough votes to make his draft law pass through parliament, even though his Servant of the People faction has 246 out 423 mandates.
“It won’t pass through the Verkhovna Rada easily,” Volodymyr Fesenko, a political analyst, wrote on Facebook. “It is necessary to maximize the consolidation of votes in the presidential faction and all supporters of anti-corruption policy in the parliament. The faction of Poroshenko will have to choose what is more important: their selfish interests or the protection of real European values.”
Zelensky’s supporters
Many, however, expressed support for Zelensky, including anti-corruption activists.
Vitaliy Shabunin, head of the Anti-Corruption Action Center, an anti-graft watchdog, backed Zelensky’s move against the court and publicly thanked him for it.
“This is a historical decision that has a chance to disrupt the plan of the Kremlin and (oligarch Igor) Kolomoisky to tear Ukraine away from the Western world,” Shabunin said.
Shabunin was referring to a popular view that the Constitutional Court’s attacks on the anti-corruption institutions were influenced by two of the most powerful figures in Ukrainian politics: oligarch Kolomoisky, a former owner of now-nationalized PrivatBank, and Viktor Medvedchuk, the leader of Opposition Platform a personal friend of Russian dictator Vladimir Putin.
The sabotage of anti-corruption infrastructure would harm Ukraine’s relationship with the West, especially the European Union. Both Medvedchuk and Kolomoisky could benefit from it. Medvedchuk aims to bring Ukraine closer to Russia, while Kolomoisky wants to get his bank back, something that Ukraine’s Western lenders don’t want to happen.
Oleksandr Danylyuk, ex-finance minister and ex-head of the National Security and Defense Council, also backed Zelensky’s move against the court. Danylyuk was one of the key people behind the nationalization of PrivatBank in 2016 after it emerged that the former owner was allegedly embezzling depositors’ money.
“A risky but correct decision to resolve the crisis surrounding the latest decisions of the Constitutional Court. There are no perfect solutions. Threats to national security remain high,” he wrote on Facebook.
Tymofiy Mylovanov, a former minister of economic development who served under Zelensky, backed the idea as well.
“From a political point of view, the initiative of Zelensky is right and even genius,” Mylovanov wrote on Facebook. “This initiative is symbolic. It identifies the priorities in the president’s politics,” he said.
Former Prosecutor General Rouslan Riaboshapka also backed his former boss Zelensky, despite heavily criticizing him in the past.
“I support the decisive actions of President Zelensky in the situation with the sabotage of the Constitutional Court,” he said. “Ukraine has been at war (with Russia) for seven years, and the Constitutional Court does not appear to be on Ukraine’s side.”
What’s next?
The Verkhovna Rada could consider Zelensky’s bill seeking to topple the Constitutional Court as soon as during its next session on Nov. 3.
However, the bill first has to be vetted by the parliament’s legal policy committee. Its next meeting is scheduled on Nov. 4. If it calls an urgent meeting, it can prepare the bill for the Nov. 3 session of the Rada.
However, the process may slow down if lawmakers file alternative draft laws to Zelensky’s bill. This method has been used to stall proposed legislation in the Rada in the past.
Poroshenko’s European Solidarity faction has already said that it is preparing and will submit its own draft law seeking to resolve the crisis.
