More than a week after a constitutional crisis enveloped Ukraine, there is no clear way out. President Volodymyr Zelensky’s plan to reboot the Constitutional Court is fumbling as parliament looks for another solution.
Meanwhile, the court’s judges threaten to destabilize the country even further and are preparing to dismantle more crucial legislation.
The crisis started on Oct. 27, when the Constitutional Court effectively destroyed Ukraine’s asset declaration system, a key part of the anti-corruption infrastructure.
Zelensky moved fast and suggested a bill that would fire all 15 judges of the Constitutional Court and roll back the detrimental ruling.
However, the president’s bill went nowhere. According to several lawmakers from Zelensky’s Servant of the People, which controls the majority in parliament, even his own party doesn’t support the bill that, if adopted, would violate the constitution.
As they hold off Zelensky’s bill, lawmakers are divided in trying to find an alternative way to restrain the court and save the anti-corruption infrastructure.
And as they pursue several possible solutions, no progress is being made on any of them.
Meanwhile, the Constitutional Court, led by chairman Oleksandr Tupytsky, isn’t backing down.
The court is effectively holding the country hostage, hinting that it can easily kill Ukraine’s land reform, banking system and remaining anti-corruption institutions.
Wild court
Amid the ongoing crisis, the 15 judges of the Constitutional Court have been raising the stakes in what appears to be an attempt to project power and gain leverage in negotiations with the administration.
After Zelensky publicly accused the court of serving the interests of oligarchs and pro-Russian politicians, the court decided to go on the offensive.
On Nov. 2, overnight, the Constitutional Court added several crucial issues to its Nov. 2-3 agenda: assessing the constitutionality of legislation lifting Ukraine’s land moratorium and regulating the Deposit Guarantee Fund.
The land law allowed Ukrainians to buy land for agricultural needs. And the Deposit Guarantee Fund is an agency in charge of liquidating insolvent bank assets and returning as much as possible to creditors and depositors.
Killing either legislation would cut Ukraine off from receiving foreign financial aid and would lead to heavy economic and political losses.
Lifting the longstanding land moratorium was among the primary demands of the International Monetary Fund for Ukraine to receive financial aid.
The court eventually backed down and postponed rulings on the contentious issues amid negotiations with Zelensky’s party.
However, the court indicated that it was ready to kill the land reform. Judge Serhiy Sas published a draft ruling that would do just that.
The equally dangerous issue of the Deposit Guarantee Fund was removed from the agenda without explanation. Were the court to nullify the legislation in question, it would enable former owners to challenge liquidations and billions of dollars in asset sales of insolvent and fraudulent banks. It also could be used by oligarch Ihor Kolomoisky in his fight to win back PrivatBank, which was nationalized in 2016.
Parliament stalemate
With the constitutional crisis dragging well into the second week, Zelensky and his governing party appear to be playing with several different solutions for the crisis.
After the Constitutional Court ruled on Oct. 27 to allow officials to escape responsibility for lying on their asset declarations, the government decided to disobey the court’s ruling, ordering the National Agency for Preventing Corruption (NAPC) to keep the online registry of declarations.
However, no further action was taken to date. Lawmakers suggested several bills, but none came close to a vote yet.
Parliament Speaker Dmytro Razumkov registered a bill in parliament that would return the NAPC all of the powers that were taken away by the Constitutional Court.
However, Servant of the People lawmaker Oleksandr Dubinsky, a close ally of Kolomoisky, postponed the bill by registering an alternative project, which needs to pass a parliamentary committee before being presented to parliament.
Damage done
After the Constitutional Court abolished punishment for illicit enrichment and lying on declarations, the National Anti-Corruption Bureau and the High Anti-Corruption Court closed over 100 corruption investigations that were based on officials’ online asset declarations.
On Nov. 5, the High Anti-Corruption Court closed a case against Odesa Mayor Gennady Trukhanov for failing to declare assets in 2017. Trukhanov is among Ukraine’s most controversial local officials, with alleged ties to organized crime, which he denies.
Furthermore, despite Zelensky’s harsh rhetoric, his bill that would fire all 15 judges of the Constitutional Court was left untouched. Servant of the People lawmaker Maryna Bardina says that there aren’t enough votes in support of the president’s bill.
Bardina co-sponsored an alternative bill that would raise the number of Constitutional Court judges required to adopt a ruling from 10 to 17. Even though the Constitutional Court officially should have 18 judges, there are currently three vacancies, meaning that, if the quorum is increased to 17, the court won’t be able to hold hearings at all.
The law has been presented to the parliament’s anti-corruption committee, which hasn’t yet agreed on the law. If it passes, Ukraine will end up without an active Constitutional Court.
“It’s dangerous to not have a (functioning) Constitutional Court for two years,” Daria Kaleniuk, executive director of the Anti-Corruption Action Center, told the Kyiv Post.
Meanwhile, on Nov. 5, the Anti-Corruption Action Center reported that the parliament is preparing to appoint two more judges to the Constitutional Court. But that doesn’t do much, either.
“Without changing the selection procedure, we’ll get two more Constitutional Court judges of doubtful integrity who will increase the chances of passing unconstitutional decisions,” wrote the Anti-Corruption Action Center in an official statement.
There is one more way to tame the court that is not discussed publicly.
Authorities are preparing to charge the court’s chairman Tupytsky with a criminal offense, according to two separate sources familiar with the matter, who required anonymity because they weren’t authorized to speak to the press.
According to Ukrainian law, the president has the right to recall a state official, appointed by the president, if the official was charged with a criminal offense. However, the law doesn’t specifically mention that a Constitutional Court judge can be recalled in that way.
There are reportedly several investigations into Tupytsky, including for high treason and unlawful interference in the work of a state official. Tupytsky denies all accusations.
Tupytsky was appointed to the court in 2013 by now-ousted President Viktor Yanukovych. His term runs out in two years.
Meanwhile, four judges who didn’t vote to kill the anti-corruption legislation said they will stop attending the court’s hearings. That effectively stalls the Constitutional Court’s work, putting it one judge short of the quorum necessary for meetings.
This is the closest the country has come to solving the constitutional crisis so far.
