The severely criticized decision rendered on October 27 by the Constitutional Court of Ukraine that declared certain provisions of Ukraine’s anti-corruption legislation unconstitutional and the impetuous reaction thereto of the president of Ukraine, who introduced legislation to dissolve the entire Constitutional Court, created a needless constitutional crisis of international proportions in Ukraine.
This crisis further destabilizes Ukraine as it continues to defend itself against the vicious military aggression from the Russian Federation that has been ongoing for over six consecutive years and as it tries to contain the number of new COVID-19 cases, which now surpass 12,000 in a single day.
The legal provisions declared unconstitutional by the Constitutional Court deal with the criminal liability of public officials and judges for not submitting or for falsifying electronic declarations of their income and property, as well as the powers of the National Anti-Corruption Agency to inspect such declarations.
This superbly contentious decision of the Constitutional Court, coupled with its previous highly controversial decisions declaring as unconstitutional legislation pertaining to illicit enrichment and the appointment of the director of the National Anti-Corruption Bureau, obviously weakens Ukraine’s efforts to reduce systemic corruption. Moreover, these decisions undermine Ukraine’s international commitments and may derail its Euro-integration process, including the Schengen area’s visa-free regime, as well as further negatively impact foreign investments in Ukraine.
What is particularly upsetting is that it was possible to avoid this constitutional crisis resulting from the Constitutional Court’s recent decision and the subsequent political reaction.
In its decision, the Constitutional Court emphasized, with much insistence, that since the legal provisions dealing with e-declarations of income and property are also applicable to judges, they undermine judicial independence. To fully address that issue, the Constitutional Court could have simply decided that the judiciary should be carved out from the e-declaration filing requirement. Instead, without any convincing argumentation, the Constitutional Court opted to declare the entirety of these legal provisions unconstitutional.
The Constitutional Court also declared the punishment for not submitting or falsifying e-declarations of income and property to be so disproportionate to the possible consequences for such violations as to render it unconstitutional.
The outcry against this decision indicates very clearly that civil society is not as lenient as the court and demands tough measures to eradicate the cancerous systemic corruption prevalent in Ukraine.
In view of the severe impact of this decision, including on Ukraine’s international commitments, the Constitutional Court should have at least suspended the effect of its decision and provided the Parliament of Ukraine a reasonable grace period to adopt new legislation in order to avoid a very damaging legal vacuum. The fact that the Constitutional Court invalidated the provisions of Ukraine’s anti-corruption legislation with immediate effect renders its decision even more questionable.
Furthermore, going forward, and for the sake of the fundamental principle of impartiality, judges that could be directly impacted by legal provisions under review should recuse themselves from such a case. Otherwise, the credibility of the court is understandably diminished in the public eye.
Unfortunately, to appease the strong negative reaction of civil society to this decision, the president of Ukraine opted for a populist solution by introducing legislation that would dismiss all the judges of the Constitutional Court.
Such legislation, if ever adopted, would not only be egregiously unconstitutional, but would also signal that the commitment of Ukraine’s governing authorities to the rule of law is very tenuous.
Thus, the president of Ukraine would be well advised to resolve the constitutional crisis by first withdrawing his draft legislation and reassuring Ukrainians and the international community that he fully intends to fulfill his role as the guarantor of compliance with the Constitution of Ukraine.
The Parliament of Ukraine has no other choice but to swiftly adopt new legislation pertaining to e-declarations of income and property by public officials, the appointment of the director of the National Anti-Corruption Bureau and the powers of the National Anti-Corruption Agency.
In the future, the governing authorities of Ukraine should provide the necessary mechanisms to be able to submit to the Constitutional Court such impactful legislation immediately after its adoption by Parliament to avoid such constitutional crises.
This constitutional crisis should cause the Constitutional Court to reflect on its duty to take all necessary measures to prevent any attempt at being exploited as a political tool to destabilize Ukraine.
Moreover, if this crisis does not compel the governing authorities of Ukraine to initiate a thorough and much-awaited judicial reform that will restore the confidence of Ukrainians and the international community, including foreign investors, in Ukraine’s judiciary – then nothing else will force such a reform.
Perhaps most importantly, this constitutional crisis amply demonstrates to all how much Ukraine’s civil society craves the implementation of effective measures to eradicate systemic corruption in Ukraine that cripples its development as a modern European state.
Eugene Czolij, a lawyer, is president of the nongovernmental organization Ukraine-2050 and former president of the Ukrainian World Congress (2008-2018).
Ukraine-2050 is a non-profit organization established to help implement, within one generation – by 2050 – strategies for the sustainable development of Ukraine as a fully independent, territorially integral, democratic, reformed and economically competitive European state.