Zelensky cancels Yanukovych orders to appoint two constitutional judges

President Volodymyr Zelensky cancelled the presidential
orders to appoint Oleksandr Tupytskiy and Oleksandr Kasminin as judges of the Constitutional Court, his press service reported
on March 27. “These persons can go on a well-deserved rest,” Zelensky
commented. He explained that he approved this order based on the decision made
at the latest meeting of the National Security and Defense Council to revise
all the orders of former president Viktor Yanukovych (February 2010 – 
February 2014). Tupytskiy and Kasminin were appointed as judges of the Constitutional
Court in 2013.

According to Interfax-Ukraine report of March 29, the
website of the Constitutional Court has stopped functioning since the
announcement of Zelensky’s order.

James Hydzik: Cancelling
the decisions to appoint someone does not always lead to the dismissal of the
appointee. Usually, legislation does not list such cancellation among the
grounds for dismissal or the termination of an appointee’s authority. The law
on Constitutional Court does not list this reason, either.

For example, we can recall the decision of the
Constitutional Court of August 2020 that recognized as unconstitutional
(and thus cancelled) the order of president Petro Poroshenko to appoint Artem
Sytnyk as director of the National Anticorruption Bureau (NABU). Later on,
Sytnyk commented that despite this, he remains the valid NABU director
and later Zelensky did not object to Sytnyk’s
statement. On the other hand, we can recall the Cabinet of Ministers decision
of December 2019 to cancel its earlier order
to appoint Steven Fisher as a member of the supervisory board of Ukreximbank,
which led to Fisher’s dismissal from the board.

That said, this move is a far more deliberate action
on the part of President Zelensky than his initial knee-jerk reactions to the
court’s cancellation of anti-corruption laws. He involved the Venice Commission
to clarify the administration’s moves. Then the Verkhovna Rada declared the
actions of the judges as a threat to Ukraine’s sovereignty. The groundwork for further
action against the judges is being laid, and they have neither the
international backing nor the sterling reputation that helped Sytnyk to stand
his ground. They might be able to win the fight on a narrow legal basis, but
the pressure against them is organized and mounting.

One further ramification is that the dismissals, if
they stick, might be enough to warrant the phone call from U.S. President Joe
Biden that Zelensky has been waiting for. This sets a bar, no matter how low,
for unaccountable behavior by judges, where none had existed previously.