European advisers warn Zelensky against liquidating Constitutional court

Ukrainian President Zelensky’s legislation to resolve
the nation’s political crisis by removing the judges of the Constitutional
Court – among other measures – is not constitutionally sound, according to the
European Commission for Democracy Through Law, an advisory body of the Council
of Europe also known as the Venice Commission. “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,” said a letter
written by Venice Commission head Gianni Buquicchio and Marin Mrcela, the Group
of States Against Corruption, that was published on the Council of Europe
website on Oct. 31. The letter urged Ukrainian politicians to consider “the
adverse, profound, and long-term implications of a possible rushed decision” to
dismiss the judges, as well as “explore possible alternative ways” in line with
international standards.

The same day, the president’s representative to the
Constitutional Court, Fedir Venislavskiy, insisted on the absolutely justified
nature of the president’s legislation, “On renewing societal trust in
constitutional proceedings,” which “fully conforms” to the values of the
Constitution. Parliament’s approval of the legislation submitted to the Rada on Oct. 29
will renew societal trust and “resolve the crisis situation” created by the
court, he said. Meanwhile, the fulfillment of the scandalous Oct. 27 ruling
will lead to attempts to introduce or restore anti-corruption legislation being
rejected by the current judges of the Constitutional Court since they are bound
by their legal position.

David Arakhamia, the head of The People’s Servant
parliamentary faction, claimed in a column published on Oct. 31 that the
president’s legislation has been endorsed by the European parliament. Moreover,
at a meeting with G7 ambassadors, “it was agreed upon that the new (court)
membership will be formed maximally transparently, as well as with the
participation of the citizenry and international partners,” he wrote. “There is
no alternative to the proposed renewal of the Constitutional Court.” The same
position was advanced by an Oct. 30 statement by The People’s Servant party,
deeming the president’s initiative “just and the single logical resolution.” It
also called for parliament to approve the legislation.

Recall, the Constitutional Court ruled on Oct. 27 to
overturn legislation setting punishment for filing knowingly fraudulent
e-declarations, deeming the penalty to be excessive and thereby requiring the
bill’s immediate cancelation. That helped to overturn related anti-corruption
legislation, particularly requiring the online publishing of annual
e-declarations of assets and income. The president’s legislation to resolve the
ensuing crisis calls for, among other things, nullifying the legal consequences
of the Oct. 27 ruling.

Meanwhile, the IMF issued a comment to Ukrinform new
agency on Oct. 30 calling for maintaining the system of online electronic
declarations of asset and income, which was launched in 2016 and “remains a
critically important step forward in the fight against corruption, and it
doesn’t need to be canceled.” The most important element of IMF cooperation
with Ukraine remains the creation of the effective anti-corruption base, the
statement said, as reported by the Ukrinform news agency. “The support and
bolstering of the effectiveness of all anti-corruption institutions in Ukraine
is a key factor for developing more robust and equal growth, and is therefore
an important requirement under the program support by the IMF,” the statement
said.

Zenon Zawada: It’s
amusing to see the president, backed by The People’s Servant parliamentary faction,
so eager to remove the Constitutional Court judges. We believe that they are
using this political crisis as a pretext to “clean house,” which they have done
in many state bodies with holdovers from the Poroshenko administration. For
this reason and others (setting a dangerous precedent, pro-Russian backing for
the scandalous ruling), we believe the president’s legislation won’t be
approved by parliament, with even a sizable portion of the members of The
People’s Servant faction being opposed.

Instead, we expect parliament will eventually hammer
out a bill that meets the approval of Western institutions, particularly the
Venice Commission. This solution won’t involve dismissing all the court’s
judges, which could be gradually removed by law enforcement bodies. Instead it
will be aimed at renewing and securing the anti-corruption bodies and measures
that were directly threatened by the Oct. 27 ruling.