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How to solve Ukraine's constitutional crisis

The Constitutional Court of Ukraine. Image by Dezidor - Own work, CC BY-SA 3.0.

Andrii Borovyk

Executive Director of Transparency International Ukraine

On October 27, the Constitutional Court of Ukraine effectively blew up the foundations of the anti-corruption reforms put in place since the 2014 revolution that removed Viktor Yanukovych from power. Thanks to a decision that has sparked protests outside the court, it is no longer illegal for public officials to lie in their declarations of financial interests and assets. The declarations will no longer be independently verified by the National Agency on Corruption Prevention. Immediately, over one hundred criminal proceedings were dropped as the offence under investigation was decriminalised.

Scandalous as it is, the decision is just the tip of the iceberg. The bigger problem is that the Constitutional Court judges exceeded their powers. Going beyond the scope of the petition put to them by parliamentarians, they answered a question they had not been asked. In doing so, the judges served pro-Russian elites, turning the country back from a path towards European integration that is lined with governance reforms.

Not only had the anti-corruption tools abolished by the court proven to be effective, they were the cornerstone of the country’s progress towards the West. For the anti-corruption community in Ukraine, this raises a difficult question. How to protect the country from the actions of the Constitutional Court itself? The court is protected by the Constitution, so there is no easy way to change how it works. Legislators writing the Constitution in 1996 probably never imagined that the judges charged with upholding the document would act unreasonably, in violation of the Constitution and to the detriment of the state. The phrasing of Articles in the Constitution was meant to avoid the court being influenced by changes in political elites. A series of rulings going back at least to 2010, and accelerating this year, have proven that this is not the case.

There are currently two issues that need to be prioritized. The first is slowing down the court’s drive to destroy reforms and Ukraine’s process of European integration. The second is restoring the effectiveness of the anti-corruption system and providing it with the tools it needs to hold those in power to account.

The first issue could not be more urgent. Currently, the Constitutional Court has on its agenda land reform, the law on the Deposit Guarantee Fund, and the law on the High Anti-Corruption Court. If we do not start resolving the problem now, very soon, Ukrainians could wake up in a different country — one with a ruined economy instead of reforms. It could all happen in as little as a week.

The Parliament and all factions need to set aside their political differences and focus on the Constitutional Court as their number one priority. MPs need to amend the law on the Constitutional Court of Ukraine, changing the quorum and the necessary number of votes for decision-making to a minimum 15 votes or more. They need to set forth a transparent, accountable selection procedure, and hold a competitive recruitment for the court’s three vacant seats under the new rules.

The president and the Parliament must start a full reboot of the High Council of Justice (HCJ)and the High Qualification Commission of Judges (HQCJ), also dissolving Kyiv Administrative Court. The HQCJ and HCJ are responsible for formation of the courts in Ukraine. The situation we are now facing with the Constitutional Court results from a lack of judicial reform as a whole. Ukrainians' distrust of the courts is higher than of any other government body. The Kyiv District Administrative Court has become the epitome of injustice and corruption in Ukraine.

This alone will not be enough. Those Constitutional Court judges who supported the disgraceful decision to undermine anti-corruption progress should do the decent thing and resign. Ukraine should not be hostage to their pro-Russia agenda. This will happen only if they still have an ounce of respect for themselves and the country. More than 200 MPs have called the judges who voted for the decision to resign, as have almost 50 civil society organisations.

These steps would be a legal mechanism for re-establishing the integrity of the Constitutional Court with some safeguards against actions that are arbitrary or driven by Ukraine’s enemies. All these actions are completely legal, comply with both the Constitution and the powers of the legislative branch of government, and should receive the support of our international partners.

If this plan is implemented today, in 2022, we will see quite a few new faces in the Constitutional Court, as well as the first results of the long-awaited judicial reform.

The essence of the problem raised by the Constitutional Court of Ukraine last Tuesday is much broader, and the consequences of this decision affect not only the promotion of anti-corruption reform, but the development of Ukraine as a whole. The result of a pro-Russian, or even neutral, path for Ukraine would be chaos for Ukrainians. The reforms of the past six years are too hard-won for that.

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