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Amid constitutional crisis, Ukraine’s anti-corruption reforms are under threat of failure

Ukraine’s emerging constitutional crisis pits the fate of anti-corruption reforms against the risk of setting an anti-democratic precedent.

Tetiana Bezruk
4 November 2020
"Constitutional Court - resign!" Protest outside Ukraine's Constitutional Court, 30 October
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Source: DEJURE Foundation

On 30 October, hundreds of people gathered outside Ukraine’s Constitutional Court in Kyiv. While police and National Guard units watched over the court, smoke bombs began flying into the building’s courtyard in a matter of minutes. Smoke rose to the very top of the court building, enveloping protesters holding posters with slogans against a recent decision by the court. Three days earlier, the court had decided to revoke Ukrainian citizens’s ability to monitor the income and assets of elected public officials, driving them and the authorities into an impasse - and one that could last for some time.

But let’s start at the beginning. In August this year, 47 Ukrainian MPs appealed to the Constitutional Court to consider the constitutionality of several criminal statutes. These MPs hail mostly from the Opposition Platform - For Life party, home to politician Viktor Medvedchuk (whose daughter counts Vladimir Putin as her godfather), as well as Yuri Boiko and Serhiy Lyovochkin, former members of the Party of Regions, which was turfed out of power in Ukraine’s 2014 revolution.

Two months later, the Constitutional Court made a decision to recognise Article 366-1 of Ukraine’s Criminal Code unconstitutional. This article criminalises the issuing of false asset declarations by public officials and parliamentary deputies, and can lead to imprisonment for officials. The court indicated that an anti-corruption agency independent of executive power should have oversight powers over Ukrainian judges, rather than the National Agency on Corruption Prevention (NACP), which operates under the auspices of the Ukrainian government. In other words, according to the Consitutional Court, the Ukrainian government can influence or pressure judges via its anti-corruption agencies.

In addition, the court also decided that certain powers of the NACP, a policy-oriented anti-corruption body, are unconstitutional. The court decided to remove NACP’s ability to check the asset declarations of public officials and deputies, publish these declarations and conduct inspections of state bodies to prevent corruption.

Since October 2016, Ukrainians have been able to examine the declarations of public officials

Why is this important? After Ukraine’s Euromaidan revolution, the country launched a large-scale anti-corruption reform. Several special bodies have been created - the National Anti-Corruption Bureau (NABU), NACP and the High Anti-Corruption Court. Since October 2016, Ukrainians have been able to examine the declarations of public officials, which were submitted once a year. In these declarations, government officials have to indicate all apartments, cars, plots of land, expensive jewellery and luxury purchases in their ownership. But if the salary of a deputy or public official does not correspond to his assets, then the NACP can conduct an inspection.

For Ukrainian citizens, this was an opportunity to see the discrepancies between the salaries and expensive cars of the MPs they elect. It was also a requirement of the International Monetary Fund’s financial support for the country, and the European Union’s visa-free regime for Ukraine.

Two days after the Constitutional Court announced its decision, the EU responded that this move could trigger a suspension in Ukrainians’ visa-free travel to the Schengen area. At the same time, Ukraine’s official declaration register stopped working. Oleksandr Novikov, NACP chief, commented that the court’s decision had returned Ukraine to 1991, when the country had no anti-corruption bodies at all. The National Anti-Corruption Bureau made a similar statement, claiming that the court’s decision was political - and would lead to the closure of 110 criminal investigations over deliberate inaccurate declaration by public officials.

Following these statements, president Volodymyr Zelenskyi convened a closed meeting of Ukraine’s National Security and Defense Council. In his address at the meeting, Zelensky said that “the issue is not only the court's decision, but also the actions of individuals to undermine the social contract in Ukraine and to create a real threat to the national security and defense of Ukraine.”

After the council meeting, Zelenskyi submitted a draft law to the Verkhovna Rada, titled “On the restoration of confidence in constitutional proceedings”. In this draft law, Zelenskyi proposed to cancel the decision of the Constitutional Court and recognise it as “null and void” and without legal consequences, as well as terminate the powers of the current judges of the Constitutional Court. But the Constitution has already spelled out the procedure that determines how judges can resign from the court, such as failure to fulfill their duties for health reasons, violation of conflict of interest requirements, committing disciplinary misconduct or neglecting one’s duties and submitting a letter of resignation. So far, only one of the judges of the Constitutional Court, Ihor Slidenko, has resigned.

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President Volodymyr Zelenskyi | Source: Office of the President of Ukraine

Zlata Symonenko, a lawyer who previously sat on NABU’s civil oversight committee, believes that Zelenskyi’s draft law completely contradicts the Ukrainian Constitution.

“The president’s bill is being submitted ostensibly to resolve the situation with the Constitutional Court, but it contains more undemocratic methods than the actual court decision. Now it’s being proposed to completely violate the foundations of the Constitution, to put them at risk,” she comments. “If we say that the president wants a political solution to the issue, and an illegal one, then the president should take this decision, rather than taking it through parliament and creating collective irresponsibility.”

For Symonenko, the main threat of the president’s actions is the setting of a precedent for adopting non-democratic laws that directly contradict Ukraine’s Constitution. “In the future, even if the government does not agree with public opinion or the position of the Ukrainian people, it will be able to make any decision, and we won’t be able to turn to the Constitution of Ukraine, since its importance and value could be lost after this bill [proposed by Volodymyr Zelenskyi - ed.]. To ensure territorial integrity, the foundations of the state, it is necessary to have an unshakable Constitution and the rule of law.”

Vitaliy Shabunin, director of the Anti-Corruption Center NGO, believes that Zelenskyi’s bill is needed to reset Ukraine’s Constitutional Court. Otherwise, according to Shabunin, the judges of the Constitutional Court will abolish Ukraine’s laws on language, the High Anti-Corruption Court and others. For Shabunin, it does not matter whether the president or a parliamentarian proposes the bill. “I don’t care how the parliament stops the judges of the Constitutional Court. They need to be stopped, otherwise they will destroy [Ukraine’s] statehood as such, all the reforms of the Revolution of Dignity, which cost us so dearly during Maidan and every day at the frontline. They [the deputies of the Verkhovna Rada - ed.] are the political elite, they have taken responsibility for the country, let them resolve the current crisis.”

The solution to the current impasse is likely to be political, but whether there will be enough votes in parliament for the president’s bill - and whether his own party will support it - is an open question

After Zelenskyi introduced the bill, Oleksandr Tupitskyi, head of the Constitutional Court, said that the president’s draft law “bears signs of a constitutional coup.” In turn, Zelenskyi called on the Verkhovna Rada to vote for his bill, otherwise he may dissolve parliament. This means that Ukraine could hold elections again soon, but whether the president will agree to this remains a question. In the 2019 elections, Zelenskyi’s Servant of the People party received a single-party majority (the first of its kind in the entire history of Ukrainian parliamentarism). At the same time, on 3 November, parliamentary deputies (from both the ruling and opposition parties) began to collect signatures with an appeal to the Constitutional Court’s 11 judges to resign.

Aside from Zelenskyi’s draft law, on 2 November parliamentary speaker Dmytro Razumkov, a member of the Servant of People party, proposed another bill to solve the emerging constitutional problem. Razumkov’s draft law would restore the powers of NACP, removed under the current Constitutional Court decision, and return the previous system of digital asset declarations (after the National Security and Defense Council meeting, Ukraine’s Cabinet of Ministers renewed access to public officials declarations). The following day, parliament’s anti-corruption committee supported Razumkov’s draft law.

The consequences of the Constitutional Court’s decision - which is already being referred to as a “constitutional crisis” - are far from simple for Ukraine. On the one hand, there is the decision of the Constitutional Court, which curtails democratic reforms in the country. President Zelenskyi’s draft law could solve the problem quickly, but violates the centuries-old principle of the separation of powers in democratic states - parliament cannot overturn decisions made by the courts. But on the other hand, anti-corruption reforms are being overturned - exactly what Ukraine’s anti-corruption activists and the west fear.

A week after the court’s decision, Ukraine’s High Anti-Corruption Court closed its first case concerning false asset declaration. The defendant was the former head of the Zaporizhzhia Regional State Administration. According to the investigation, the official had failed to indicate five cars, two apartments, a land plot and other assets to a total of 43 million hryvnya.

The solution to the current impasse is likely to be political, but whether there will be enough votes in parliament for the president’s bill - and whether his own party will support it - is an open question.

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