Ways to deal with the “constitutional crisis”: restore trust in constitutional legal proceedings, cut Constitutional Court’s funding, or introduce larger quorum requirement

A decision by the Constitutional Court of Ukraine (the CCU) to abolish the system of electronic asset declarations (No. 13-r/2020) has produced a harsh response from people. Politicians are now trying to deal with the situation and propose different solutions: from dismissing all judges of the CCU to cutting the CCU’s funding. All these proposals pose a substantial threat to the state.

Sponsor: the President.

What does the bill propose:

• to declare the CCU’s decision to abolish the system of electronic asset declarations void on the grounds that some of the judges had a real conflict of interests
• to restore the provisions of the Law on Preventing Corruption and the Criminal Code that the CCU has ruled unconstitutional
• to dismiss the CCU’s judges and launch a selection procedure to appoint new ones. Judges of the CCU are appointed by the President, the Parliament, and the Council of Judges.

What is wrong:

• according to the Constitution (Article 151²), decisions and resolutions of the CCU are mandatory for execution, final, and cannot be appealed. Neither the President nor the Parliament can declare such decisions void
• according to the Constitution (Article 152), provisions ruled unconstitutional by the CCU are lose their legal force the same day a decision is made. It is impossible just to restore unconstitutional provisions
• according to the Constitution (Article 149¹), a judge of the CCU can be dismissed only by the CCU’s decision (there is an exhaustive list of reasons when the Court can do that). Thus, the bill is unconstitutional
• the bill submitted by the President is an attempt to influence the judges of the CCU and such activity is prohibited by the Constitution (Article 149). The judges of the CCU cannot be held responsible for making decisions
• to ensure political independence, the selection system for the CCU is established in such a way that no substantial reshuffle of judges can be made during just one election cycle. If the CCU will actually be “relaunched”, the President and the Parliament (where the presidential faction has a majority) will appoint the majority of the CCU’s judges. For the next 9 years, the CCU will be dependent on politicians now in office.

Sponsor: Oleksii Honcharenko, European Solidarity faction.

What does the bill propose:

• to declare void the following CCU’s decisions:
  • on electronic declarations (because of the conflict of interests). The bill restores provisions from the Law on Preventing Corruption and the Criminal Code ruled unconstitutional by the CCU
  • CCU’s decision on the President’s decision to dissolve the Parliament made in May of 2019
• to declare unconstitutional the presidential resolution on the early dissolution of the Parliament; declare illegitimate parliamentary elections of 2019 and repeal all decisions made by the MPs of the 9^th convocation
• to dissolve the Parliament and set the new early election.

What is wrong:

• according to the Constitution (Article 151²), decisions and resolutions of the CCU are mandatory for execution, final, and cannot be appealed. The Parliament cannot declare such decisions void
• according to the Constitution (Article 152), provisions ruled unconstitutional by the CCU are repealed the same day a decision is made. It is impossible just to restore unconstitutional provisions
• the Verkhovna Rada cannot declare unconstitutional or illegitimate decisions made by the President, the Central Election Commission, or other government bodies. That includes decisions on elections, election results, etc.
• according to the Constitution(Article 90), only the President can dissolve the Parliament and only under the following conditions:
  • if MPs fail to form a coalition of parliamentary factions within one month
  • if MPs fail to form a Cabinet within sixty days
  • if MPs fail to hold at least one plenary meeting within thirty days of a single regular parliamentary session.

Sponsor: Halyna Yanchenko, Servant of the People faction.

What does it change: the bill proposes to cut spendings from the government budget on the CCU by almost ₴110 mln (more than 1/3 of the funding). Instead, this money will be allocated for state educational establishments of secondary education.

What is wrong:

• according to the Constitution (Article 148¹), the state has to provide funding and ensure proper conditions for the CCU’s work. A cut in spendings on the CCU will mean fewer guarantees of its proper functioning
• the bill is an attempt to influence the CCU’s judges, and that is prohibited by the Constitution.

Cosponsors: a group of MPs from Servant of the People and Holos factions (Oleksandr Korniienko and Yaroslav Yurchyshyn as first signatories), representatives of the group Trust.

What does it change: the bill proposes to increase the minimum number of judges of the Constitutional Court necessary to make decisions from 12 to 17.

What is wrong:

• the bill proposes disproportionate restrictions on the CCU. By setting the quorum necessary for making decisions by the Court, the Parliament can block the Court’s work
• the CCU’s work could be even blocked completely: the President and the Parliament can just refuse to appoint two judges of the CCU and there will be no quorum
• having the opportunity to block the work of the CCU, the Parliament and the President will be able to adopt unconstitutional laws and resolutions and it will be impossible to appeal against them.

Cosponsors: 125 MPs, Dmytro Razumkov (Chairperson of the Verkhovna Rada) as the first signatory.

What does the bill propose:

• to restore provisions from the Law on Preventing Corruption and the Criminal Code that has been ruled unconstitutional
• to order the Cabinet to prepare draft bills on how to solve the problem of the CCU’s decision on asset declarations (within two months).

What is wrong:

• as a result of the CCU’s decision, a number of provisions became legally non-existent. To just readopt them is impossible
• judges and government bodies’ employees can refuse to exercise these provisions because of the insufficient quality of lawmaking technique used to draft them.

Proper solution: to get round the CCU’s decision, the provisions in question should be redrafted and introduced with different enumeration. This way, the Parliament will not violate the CCU’s decision.

1. On the repealed provisions of the Law on Preventing Corruption and the Criminal Code:

• redraft the unconstitutional provisions of the Law on Preventing Corruption with new enumeration in such a manner that they do not apply to judges;
• develop a new procedure for monitoring judges’ lifestyle and asset declarations in such a manner that it does not violate the principle of the independence of the judiciary;
• rewrite the definition of an element of a crime “Providing false information in asset declaration” so it does not violate the CCU’s decision.

2. On the functioning of the CCU:

• appoint three more judges of the CCU so it is fully staffed: two judges have to be appointed by the Verkhovna Rada, one judge — by the Council of Judges;
• if the resignation of Ihor Slidenko is approved (he has already submitted his resignation) or any other judge resigns, a replacement should always be appointed immediately;
• conduct an investigation on probable infringement of the constitutional order by the judges of the CCU;
• make changes in the CCU composition only gradually and under the procedure defined by the Constitution (Article 149¹). In 2022, three judges should be replaced since their term in office will end.