How To ‘Demine’ Ukraine

G7 Ambassadors gave advice to Ukraine on how to get out of the constitutional crisis

On 27 October 2020, an event took place that clearly testified to the existence of a fundamental problem in the state system of Ukraine. The Constitutional Court declared unconstitutional the provisions on inaccuracies in asset declarations and the powers of the National Agency on Corruption Prevention (NACP). This decision created risks of losing support from international partners, who have consistently advocated building a system of anti-corruption bodies in the country. The Constitutional Court must have prevented political crises in the state, but in fact it created such a crisis itself.

This is not the first time that the Constitutional Court of Ukraine not only fails to be a guarantor and stabiliser of a situation that poses a threat of serious political consequences, but also turns into a lever that leads to such consequences. On 30 September 2010, the Constitutional Court overturned the 2004 constitutional reform and returned Ukraine to the 1996 Constitution. Viktor Yanukovych, elected as president with the powers of the head of the parliamentary-presidential state, received the powers of the head of the presidential-parliamentary state. Figuratively speaking, he was elected as Yushchenko and became a president as Kuchma at the request of the Constitutional Court. A similar decision was made by the Constitutional Court on 30 December 2003, when Leonid Kuchma was allowed to run in the next presidential election, despite the constitutional ban on a third presidential term. Only Kuchma’s own refusal prevented him from realising a plan that, if it had been implemented, could have changed Ukraine’s history.

Thus, this is not an accidental, one-time decision of the constitutional examination body with destructive consequences, but a mine laid in the foundation of Ukrainian statehood, which can explode at any time due to the will of interested political actors and the negligence of judges of the Constitutional Court.

The current government was taken without warning when an acute constitutional crisis suddenly emerged. President Zelensky described the work of the Constitutional Court as a “hurricane.” A meeting of the National Security and Defence Council was urgently convened, at which a decision was made to submit to Parliament a bill on restoring the integrity of constitutional proceedings in the interests of Ukraine. The President proposed to terminate the powers of all current judges of the Constitutional Court and urgently begin the procedure for selecting new ones. Meanwhile, the problem is that neither the President nor the Verkhovna Rada can terminate the powers of judges of the Constitutional Court. The situation was in a legal impasse. How to restore the rule of law without breaking it?

Fourteen Ukrainian civil society organisations sent an open letter to President of the Venice Commission Gianni Buquicchio, drawing his attention to the injustice and groundlessness of the decision of the CCU, as well as to the existence of a conflict of interests of judges as persons whose property status was also subject to NACP verification. They received the following answer: “The Venice Commission shares your embarrassment and criticism over the Constitutional Court’s decision, and although it reminds that the decision must be implemented, it calls on the Ukrainian Parliament to interpret it in the light of the general principles of the Constitution, international standards and pure logic.” President Zelensky also contacted Buquicchio about this. But the Venice Commission cannot replace the Ukrainian authorities in their search for a way out of the crisis, let alone go beyond the consideration of a specific court decision.

Back in early November, Head of the EU Delegation to Ukraine Matti Maasikas expressed hope that the problem would be solved quickly and wisely. At the same time, the G7 Ambassadors called on Ukraine to get out of the constitutional crisis as soon as possible. Later that month, President Zelensky discussed the issue with them. But despite the urgency of resolving the constitutional crisis, the problem has remained unsolved for three months. Thus, the current appeal of the G7 Ambassadors is a continuation of the previously begun dialogue with the Ukrainian authorities at its request to overcome the consequences caused by the actions of the Constitutional Court, which, according to the Ambassadors, have become a serious threat to the country’s democratic development.

The proposals of Ukraine’s Western partners are reduced to a few key points, namely: “1) to reestablish with a firm legal basis the anti-corruption provisions recently declared unconstitutional; 2) to prevent the CCU from causing further harm even while it is being reformed into a truly independent and accountable institution; and 3) to ensure all nominations to key judicial and law enforcement bodies are transparent, merit-based, and credible.”

After receiving this letter, the President withdrew his draft law “On Restoration of Public Confidence in the Constitutional Court” from the Parliament for revision.

On 28 January, MPs voted on another bill, which proposed a procedure that would limit the CCU’s ability to go beyond the issues raised in the Constitution, but it did not gain the necessary majority of votes and was also sent for revision.

The struggle for “demining” Ukraine’s state system continues, and this task remains extremely difficult, facing serious opposition from those who are accustomed to using the system’s flaws to their advantage, in particular, from political top players, representatives of oligarchic circles, and corrupt officials to members of the judicial corporation. To overcome it, we need both methodological assistance from partner countries with a strong institutional experience of democracy and strong political signals from the outside, since internal resources are obviously and, unfortunately, not enough.

Leonid Shvets