November 6, 2020

Constitutional crisis


On October 27, the Constitutional Court of Ukraine handed down a ruling that has the potential of setting back the country’s long struggle against corruption. Remarkably, the court nullified a great portion of Ukraine’s anti-corruption reform, including powers of the National Anti-Corruption Agency (known by its Ukrainian acronym as NAZK) and criminal liability for false declarations of assets or failure to file an asset declaration. The NAZK had the authority to review and verify asset declarations, control access to registers of those declarations, conduct anti-corruption inspections in government agencies, report on administrative violations, and more. Acting on a case brought by 48 national deputies (members of the parliamentary factions For the Future and the Opposition Platform – For Life), the court declared all those powers to be unconstitutional.

The anti-corruption NGO Transparency International Ukraine noted that “The Constitutional Court made this decision despite the fact that the substantiation of the MPs’ claim consisted of manipulative statements that significantly distorted the content of law and cited it selectively.” As to the ramifications of the court’s decision, the NGO’s executive director, Andrii Borovyk, commented: “The decision of the Constitutional Court will lead to a significant rollback in Ukraine’s anti-corruption reform. These legislative provisions were the cornerstones of the anti-corruption system, while corruption has been recognized as one of the threats to the national security. In addition to the loss of accountability, thousands of officials will remain unpunished for lying in declarations.” Transparency International added that this rollback will threaten the visa liberalization regime and lending from the International Monetary Fund, which is essential for Ukraine’s survival.

RFE/RL reported that the ruling is controversial also because four of the Constitutional Court’s judges are themselves under investigation by the NAZK for failing to properly declare their assets. These judges did not recuse themselves from the case despite calls to do so from the government and anti-corruption campaigners.

President Volodymyr Zelenskyy reacted to the unprecedented court ruling by saying he will dismiss the Constitutional Court, but that act itself would be in violation of Ukraine’s Constitution. In fact, the Venice Commission and the Group of States against Corruption (GRECO), monitoring and advisory organizations of the Council of Europe, wrote a letter to Verkhovna Rada Chairman Dmytro Razumkov cautioning him about legislation introduced by Mr. Zelenskyy. “Terminating the mandate of the judges is in blatant breach of the Constitution and of the fundamental principle of separation of powers. Violating the Constitution, even if for an arguably good cause, cannot lead to a culture of constitutionalism and respect for the rule of law, which the fight against corruption pursues,” the Venice Commission and GRECO underscored. “We encourage you to explore possible alternative ways of ensuring that the fight against corruption in line with international standards remains a priority for your country.”

Political analyst Vitaliy Portnikov notes that there is a way out of the constitutional crisis. “The first thing that needs to be done is to pass a law in Parliament that re-establishes the anti-corruption legislation. And the second: turn to the people and society for support.” He pointed out that, “In an analogous situation, when Moldova’s Constitutional Court adopted decisions that undermined the legal foundations of the state, its judges weren’t removed by the president or the Parliament. They resigned on their own, because they were convinced of the complete public rejection of their actions.”

The good news is that the public in Ukraine has begun to speak out, judging by the protests in front of the Constitutional Court building in Kyiv on October 30. The people of Ukraine are fed up with corruption and will not stand for this dismantling of anti-corruption structures that takes Ukraine back to a past they have repeatedly rejected.