The selection commission appointed by President Volodymyr Zelensky to choose candidates for the Constitutional Court may plunge Ukraine into a constitutional crisis, watchdogs told the Kyiv Post.
The legal experts are concerned that the Constitutional Court’s legal protection from the President’s Office will be circumvented by Zelensky’s selection procedure.
The commission finished evaluating candidates for two seats on the Constitutional Court on Oct. 23. They are meant to replace judges Oleksandr Tupytsky and Oleksandr Kasminin, whose appointments to the court were undone by presidential decree in March.
Experts told the Kyiv Post that this decree has no legal basis, nor constitutional power.
“Just because the decree which elected [Tupytsky and Kasminin] was canceled, does not mean they are removed from their position,” explained Halyna Chyzhyk, a Lawyer at the Anti-corruption Action Center.
“Once a judge is selected, the position is fixated, and a president has no power to remove them. While Zelensky can announce his selection of two judges at any time, these spots do not exist. Therefore, doing so would create an unprecedented situation, with unknown consequences.”
Vitaly Tytych, a lawyer who served on the Public Integrity Council, concurred.
“Although previous presidents have tried to influence the Constitutional Court, none used this approach; there is no legal framework or resolution to follow in this contingency,” he said. “[The process] shouldn’t even be entertained. What Zelensky is thinking of doing cannot be seriously considered; it is simply taboo.”
“Despite the questionable integrity, morals, and values of Kasminin and Tupytsky, this political move will delegitimize the constitutional court completely,” said Tytych.
The President’s Office did not respond to requests for comment.
Zelensky’s decision to fire the judges came after months of conflict between him and the Constitutional Court after the institution issued a widely criticized ruling that effectively eliminated Ukraine’s system of asset declarations for public officials. It spurred a constitutional crisis that threatened to undermine the country’s battle with graft.
“Certain judges of the Constitutional Court of Ukraine appointed by Viktor Yanukovych, as they continue exercising their authority, pose a threat to Ukraine’s independence and security, which contradicts the Constitution,” the presidential decree read.
The Constitutional Court of Ukraine consists of 18 judges. One-third are appointed by the President of Ukraine, another third by the parliament, and the last by a committee of judges. All six spots in the presidential quota are currently filled.
“There are no spots for the President to appoint new judges,” Chyzhyk said. “Zelensky is attempting to create vacancies with methods that are not within the constitution.”
According to Ukraine’s constitution, a judge’s spot is secured for a nine-year term once they are selected, and there is no way for the president to remove them from their position.
The only institution with the power to remove a judge is the Constitutional Court itself.
Why rush?
Tupytsky and Kasminin were set to leave their positions in 2022 upon reaching their nine-year term limit, creating vacancies for the presidential quota in May and September.
Many question the qualifications of Zelensky’s candidates. Both Chyzhyk and Tytych believe that none of the candidates selected are qualified to be put in the CCU.
For example, Chyzhyk highlighted that one member of the selection commission, Yelyzaveta Yevgrafova, was not questioned about her unexplained assets and property. Candidates previously eliminated from being considerered in similar competitions due to suspicion of corruption are now in the running for the Constitutional Court.
According to Chyzhyk, Zelensky is trying to stack the court in his favor. There were two parliamentary vacancies in the court, one of which was filled by Viktor Kichun, a judge loyal to Zelensky’s party, Servant of the People.
“One judge isn’t enough, so he is trying to gather judges that will support him.”
When asked why Zelensky is making the selection now when he can wait less than a year, experts said his desire to secure a second term and consolidate power may be the reason.
Legal think tank Dejure stated that the Constitutional Court is the only organ that can prevent usurpation of the government and unconstitutional decisions. It can also legalize any unconstitutional decision.
“Zelensky isn’t doing this to enact reforms but to ensure his second presidential term. The outcome of the parliamentary elections will heavily affect his reelection, so he wants to postpone them. And it is the Constitutional Court that decides when the parliamentary elections occur,” said Chyzhyk.
