Constitutional court defies Zelensky decree placing Tupytskiy on leave

Constitutional Court Chief Justice Oleksandr Tupytskiy
is required to continue serving in his position regardless of the president’s
Dec. 29 decree placing him on two months’ leave, the court’s legal department
announced on Dec. 30 on the court’s website. Moreover, President Zelensky
should cancel his degree because he doesn’t have the legal right to remove
judges from the Constitutional Court. The decree should not be fulfilled because
the president exceeded his constitutional authority when issuing it, said the
statement, which accused the president of the crimes of interfering with the
activity of a state actor and interfering in the activity of judicial bodies.

“The issuing of this decree by the president of
Ukraine is practically illegal interference in the activity of a judge of the
Constitutional Court of Ukraine, interfering with his fulfillment of his work
requirements, which demands legal responsibility that is stipulated by the
law,” the statement said.

The court will review the president’s decree placing
Tupytskiy on leave at a Jan. 5 special assembly of judges, the Ukrinform news
agency reported on Dec. 30, citing a high-ranking source in the court. The
source said the court’s security prevented Tupytskiy from entering its offices
on Dec. 29, but he was granted a pass to enter by the head of the court’s
secretariat.

For the next two months, Tupytskiy won’t have the
authority to serve as a judge of the Constitutional Court, nor its chief
justice, reiterated on Dec. 30 Fedir Venislavskiy, the president’s
representative to the court. Nor does he have the right to lead its special
assembly planned for Jan. 5, Venislavskiy said, as reported by the president’s
website.

The Constitutional Court needs resetting and that
process should begin with Tupytskiy’s removal, President Zelensky said in an
interview with the focus.ua news site published on Dec. 25. “A conflict with
the state. A conflict with society. A conflict with parliament. A conflict with
the president. It seems to me that this is enough for a person to leave,” he
said of Tupytskiy, adding that he hopes to reset the court in 2021. The court
has operated as a “state-private partnership” for many years with politicians and
entrepreneurs serving as its shareholders, he said. “The composition of the
Constitutional Court is understood to you and me. These are the children of
Yanukovych, as well as the cousins of Petro Poroshenko. There are also the
‘distant relatives’ of Yulia Tymoshenko. That’s the truth that we are living
with. New judges have not been appointed to the court during my tenure,”
Zelensky said.

Zenon Zawada: Zelensky is
using the scandal surrounding Tupytskiy to pursue his agenda of renewing the
Constitutional Court with his own loyal judges, which he has been trying to do
ever since the scandalous Oct. 27 ruling.
The current judges understand this, which is why they have rallied behind
Tupytskiy, who likely warned them that they are next to be targeted for
removal. These judges also know that Zelensky’s agenda doesn’t have the support
of Western authorities, who have refused to endorse it.

The result is a nasty and embarrassing scandal for
Zelensky that may need the involvement of a third party intermediary to be
resolved. We don’t see Zelensky as being capable of stopping Tupytskiy from
continuing to serve in his post. And we don’t see the President’s Office
recognizing the court’s rulings for as long as Tupytskiy is in charge. So we
have entered the latest phase of this constitutional crisis that Zelensky’s
political opponents – both pro-NATO and pro-Russian – will try to use to call
for early presidential elections. They have already been calling for his
resignation.

However, the average Ukrainian is more concerned
about the war in Donbas, as well as jobs and wages than the Constitutional
Court. So these calls for early elections won’t draw much of a popular
response, and the stalemate can extend itself indefinitely.