Ukraine’s Constitutional Court’s scandalous decision to abolish electronic declaration and thus remove criminal liability for declaring unreliable information has disappointed Ukrainian society. After all, this is a significant step back in the state’s anti-corruption policy. The international community reaction did not linger either. Promote Ukraine asked the experts what the consequences might be for Ukraine from its international partners’ side.
It is a global shame. That is not just an encroachment on open data but a threat to national security, democracy growth, civil society and the authorities’ accountability. A handful of people who are under investigation themselves (two judges declared false information in their declarations) repealed the democratic law and effectively undermined the state system. There are high risks that temporary quarantine will turn into a long-term self-isolation of Ukraine from all civilised countries and investors. Seven years ago, burning tires made officials think that they were accountable to society. It seems that historical memory is very short, and we cannot reform for a long time without revolutions and blood. I hope that the President and MPs urgently rectify the situation by adopting a law on the restoration of repealed norms.
According to Oleksandr Novikov, NACP Chairman, this decision “returns Ukraine not even to 2013, but 1991, when there was no anti-corruption legislation at all. It completely abolishes all anti-corruption mechanisms that have been built during the years of independence.”
What does the CCU’s odious decision mean for Ukraine in terms of international co-operation? Many foreign partners have already expressed their traditional “deep concern” over the collapse of the anti-corruption reform and have hinted at possible problems with visa-free travel. Issues may also arise in relations with the IMF, which, as the country’s strategic partner, expected the anti-corruption bodies’ strengthening, rather than their destruction. That threatens the country’s further receipt of international aid and in fact, default.
Expert opinions on further steps out of the constitutional crisis differ. Some believe that the CCU should be eliminated. After all, the Verkhovna Rada should be the only body that initiates laws. According to others, the country still needs the CCU as a body in ensuring balance and regulation of the legal relations system. It is apparent to everyone that, in this case, it is the Parliament that must act as a deterrent.
The implementation of a real fight against corruption was one of the main prerequisites for association with the EU, other international obligations of Ukraine and the extension of a credit line from international financial institutions.
Given the violation of international obligations, there is now talk of possible sanctions, up to visa waiver and lending termination. Although to calm the panic in Ukrainian society, it should be noted that there are no legal grounds for imposing such severe sanctions right now.
However, international partners keep abreast of resolving the constitutional crisis and appreciate the authorities’ almost immediate response to the CCU’s decision. At the same time, they emphasise that sanctions initiation is possible if the anti-corruption policy is not settled and resumed within a reasonable period.
About 20 bills related to the constitutional crisis resolving have already been registered in the Verkhovna Rada. However, not all of them remain in the legal field and can fix the problem that has arisen. To address the situation, the subjects of the legislative initiative offer the following options:
- the annulment of the CCU’s decision and termination of its judges’ powers;
- restoration of the provisions which were found unconstitutional;
- re-adoption of the provisions which were found unconstitutional;
- the same, but, with the peculiarities regarding the judges related to the actual transfer of NACP powers to the judiciary body – the High Qualifications Commission of Judges of Ukraine or the State Judicial Administration.
Most of these measures are proposed in conjunction with a simultaneous increase of the CCU’s quorum from 12 to 17 judges to block further opportunities to find such measures unconstitutional.
So far, at the declarative level, the option to remove the NACP from the executive body’s system has remained without any legislative initiative, since its implementation requires careful analysis and detailed legislative work.
It is evident that the first two options are fully illegal, and their implementation can only exacerbate the crisis in Ukraine because each of these laws will not comply with the Constitution.
Then, although the CCU’s decision is quite contradictory, “we have what we have” – it is mandatory, final and cannot be appealed. Therefore, the most legally justified is the urgent legislative restoration of e-declaration and the powers of the NACP with special features for judges. It includes further development and implementation of anti-corruption control mechanism for this category of officials directly by a judiciary or a body that does not belong to any branch of government.
Undoubtedly, to achieve the result, it is necessary to analyse all risks and conduct negotiation procedures for representatives of all branches of government and the public with the possible involvement of foreign partners.
Oleksander Khmelevsky, independent expert
The democratic system is based on the separation and independence of the government branches, in particular the judiciary. Therefore, the legislature and the executive should enforce the court’s decision, not dissolve the court if they do not like it. It is hard even to imagine a similar situation in the US or EU countries. It is not uncommon to hold officials accountable for their actions. Instead, in semi-democracies, conflicts between the government and the courts happen. For example, a similar case occurred in Russia in 1993, when then-President Boris Yeltsin fired judges of the Constitutional Court who supported his impeachment.
Foreign governments and international organisations already raise concerns about the anti-corruption policy state in Ukraine. And they are right: in many respects, our country does not cope with its international obligations. And the CCU’s decision worsens the situation.
Will this lead to the complication of relations with Western countries, the termination of the Association Agreement between Ukraine and the EU and Ukraine’s integration into NATO? The probability of such events is minimal and almost impossible. But the longer the authorities do not react and do not correct the situation, the more questions our partners will have. Right now the Parliament, the President and the Government should worry about not how to destroy the CCU but how to reduce its decision negative consequences. The decision is not an obstacle to:
- restore anti-corruption measures for civil servants and politicians;
- introduce a specified procedure for verifying declarations and monitoring the judges’ lives;
- restore the responsibility for false declarations, taking into account the CCU’s decision.
These are the steps that can be taken fairly quickly not to deepen the crisis.
Is the President’s project a way out of the situation? No. It is simply impossible not to recognise the decision of the CCU, and to dismiss its judges. There are no such mechanisms. The project can be perceived as an encroachment on the constitutional order because it proposes the violation of more than a dozen provisions of the Constitution.
The consequences of such a decision can be even worse, as Pandora’s box will open: after that, the rule of law, an independent CCU, the state power stability and a viable judiciary can be forgotten. All this will be impossible: judges will know that their decisions can be overturned unconstitutionally, and they can be dispersed. Each next president will look for formal causes to similarly reformat the CCU.
Similar situations have occurred in other countries. The most famous examples are Moldova and Armenia. In Moldova in August 2019, the entire composition of the Constitutional Court was changed. But this happened after the judges “voluntarily” resigned. It is clear that they were under intense pressure, but no laws on the Constitutional Court dispersal were passed. In Armenia, some judges of the Constitutional Court were “lustrated” after the 2018 revolution.
Are these examples we should follow? Is this a useful experience that will help us to form an independent and effective Constitutional Court? These are rhetorical questions.
At the same time, without changing the procedure of selecting judges, when the winner is not the worthiest, but the most loyal candidate, no matter who is appointed and what is done – it will be impossible to correct the situation.
The CCU’s decision to recognise the existing “anti-corruption structures” illegitimacy harms the assessment of the rule of law in Ukraine very much. As a result of this decision, the executive and judicial branches of government operate outside the legal field of Ukraine. Both put pressure on the legislature to motivate it to make non-legal decisions as well. The worst thing is that there is no transparent legal way out of this situation either.
The reaction of European structures to this state of affairs is also predictable. The Council of Europe and its Venice Commission have traditionally been concerned about the sequence of events. The European Union has started talking about the possibility of revising the visa-free regime, granting of which was accompanied by a requirement to create anti-corruption structures in Ukraine. However, under the conditions of a pandemic and restrictions on movement, the visa-free regime has not been de facto effective since March 2020. And until the official end of the pandemic, no one will name the date “X,” the visa-free regime for citizens of Ukraine will not work anyway. But such a decision by the EU could significantly complicate the political forces’ position in Ukraine in favour of the European integration choice and strengthen European sceptics in Ukraine.
The best way out of the situation would be the “clarification” of the decision by the CCU’s judges. But this is unlikely. Each option for getting out of a dead-end is worse than the other. No branch of government has the right to usurp the powers of another. The executive branch has no right to dissolve the higher judicial branch. An arbitrator in the form of a Constitutional Court is being removed from the political process in Ukraine.
International experience is rich in similar situations in countries where there was no stable democracy, and the rule of law is unstable. For example, during 2018, Romania was thrown into disarray due to the opposition among the government of Viorica Dăncilă and the National Anti-Corruption Department head Laura Kövesi. She imprisoned several leading Romanian Social Democrat and Liberal politicians. However, having formed the government, they decided to pay back Kövesi, who left office on 9 July 2018. That provoked a conflict between the EU and Romania, which headed the EU in the first half of 2019. The way out of the situation was found via early parliamentary and presidential elections.
Poland is another example of a constitutional court crisis. There, the ruling Law and Justice Party stimulated the adoption of a law that reconsidered judiciary independence. In particular, judges were taken on the hook of pension provision after the end of their careers. The reform of the Polish judiciary has drawn criticism from the EU. There was even talk of imposing sanctions on Poland for violating the rule of law. However, amidst Britain’s withdrawal from the EU, the EU did not dare to bring the scandal with Poland to a logical conclusion, so as not to increase European sceptics in Poland. So far, this crisis is not resolved.
I believe the decision to repeal anti-corruption reforms is a way to disrupt Ukraine’s European integration processes and attempts to turn Ukraine towards Russia, which threatens the visa-free regime for Ukrainian citizens. And this is a matter of national security.
That is why the meeting of the National Security and Defence Council was quite logical. During it, a set of issues related to the CCU’s decision was considered to prevent further curtailment of anti-corruption reforms. Besides, there was information that the CCU prepared to abolish land reform, as well as the Law on the Ukrainian Language Functioning Guarantees.
The way out of the situation proposed by the National Security and Defence Council and the President is an efficient political gesture to demonstrate the irreversibility of Ukraine’s European integration course, as well as the fight against corruption.