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Michał Potocki  24 grudnia 2020

Corruption stronger than the Constitution? Political storm in Ukraine

Michał Potocki  24 grudnia 2020
przeczytanie zajmie 8 min
Corruption stronger than the Constitution? Political storm in Ukraine Leszek Kozlowski/flickr.com

A bomb exploded in the political system of Ukraine. The Constitutional Court of Ukraine (CCU) found a number of provisions on the fight against corruption to be unconstitutional. The failing anti-bribery system has been disassembled with a single ruling. In response, President Zelenskyy exercised the nuclear option – a draft act shortening the terms of office of members of the Constitutional Court and abrogating the controversial ruling. How will this political storm in our eastern neighbor’s country end? Will Zelenskyy lose power?

An unexpected explosion on the Ukrainian political scene

When Volodymyr Zelensky won the second round of presidential election in 2019 with the record support of 73 per cent, supporters of his rival Petro Poroshenko threatened with the revenge of the pro-Russian camp, which was supposed to be skulking behind the comedian’s back. Paradoxically, however, it was the judges appointed during the term of Poroshenko who led to the biggest revenge of the ghosts from the past.

On October 27, the Constitutional Court of Ukraine (CCU) found a number of provisions on the fight against corruption to be unconstitutional. 47 members of the Parliament submitted a request to the CCU, 44 of whom represented the Opposition Platform For Life of Viktor Medvedchuk, the personal friend of Vladimir Putin. The other three deputies were sent by Igor Kolomoisky and his party For the Future. The oligarch thanks to whom Zelensky became the president had long decided that the Head of State had failed to fulfil the hopes invested in him.

The CCU has ruled that they cannot check the asset declarations of judges or punish them for lies in these documents, as this undermines the constitutional principle of independence of the judiciary. Moreover, the prison sentence for making false statements in declarations allegedly breaks the constitutional provision that the sentence should be proportionate to the fault.

In this simple way, the activities of the National Anti-Corruption Agency (NACA), which checked the declarations of politicians, officials and judges, were paralyzed. More than 100 proceedings had to be suspended. The website where journalists interested in Ukraine every year excitedly reviewed the asset declarations of rich members of parliament also disappeared.

Zelenskyy became furious. Perhaps because everything seemed to be agreed before the ruling was issued. The CCU was supposed to undermine the anti-corruption system introduced by Poroshenko, but not to this extent. The circle of the Head of State has been engaged in a guerilla warfare with the head of the National Anti-Corruption Bureau of Ukraine (NABU), Artem Sytnyk, associated with Poroshenko. The people in the president’s office say outright that Sytnyk should be removed from office.

A conspiracy theory propagated by circles close to Zelenskyy says that the presence of Sytnyk in the position of the director of the NABU points to external – presumably American – interference in Ukraine’s internal affairs. This is not pure fiction, given how scrupulously Americans and Europeans forced Poroshenko to fulfill the promise of building a real anti-corruption apparatus or taking into account the recordings of his talks with then US Vice President Joe Biden (nota bene revealed by member of parliament Andrii Derkach, whom Washington explicitly described as a Russian agent). However, there is a long way to go from Washington’s pressure to build a state of law to the recognition that Sytnyk is a pawn of the White House.

However, the actual liquidation of the anti-corruption system – and this is what the ruling of the CCU led to – threatened to cut off Ukraine’s access to external assistance. Including the painstakingly negotiated aid package from the International Monetary Fund for the local economy, which, like all economies in the region, has been severely affected by the impact of the COVID-19 pandemic, but also by the somewhat inept financial and economic policy of the government of Denys Shmyhal.

In the pessimistic option, which is rather unlikely, the Ukrainians even anticipated that their country would be deprived of the visa-free travel with the Schengen States. In the end, the establishment of the NABU and NACA was one of the conditions for the visa waiver.

The President counteracts

That is why Zelenskyy reacted decisively, although his reaction seemed to be intuitive rather than balanced. The president presented a draft act… shortening the terms of office of members of the CCU and declaring the ruling of the Constitutional Court to be null and void.

The obvious contradiction of the draft act with the basic act, which clearly defines the term of office of the judges of the CCU and does not allow their arbitrary shortening, was blatant. Nevertheless, the request of Zelenskyy was supported by the ambassadors of the G7 countries (France, Japan, Canada, Germany, US, UK and Italy) in Ukraine. The Venice Commission of the Council of Europe had a different opinion and looked at the draft act through a legal and not a political perspective.

The fact that Zelensky first introduced the draft act and only then began to analyze his situation is evidenced by the fact that, after sending the act to the Supreme Council, there was silence. Although the president has, as the first one in history, an independent parliamentary majority, which additionally consists of a party whose electoral rolls he personally prepared, he can no longer count on their absolute support. The parliamentary club is broken down into different fractions. There are people who are loyal to Zelenskyy, there are those who, after his divorce from Kolomoisky, have chosen loyalty to the oligarch, and there are those who are won over by the ever stronger head of parliament, Dmytro Razumkov, and these are only the strongest factions. The dissolution of the CCU was not supported by a majority.

Consequently, the radical project came to the parliamentary freezer from which it will not reemerge, and the ruling camp started thinking about less extreme alternatives. On November 25, Zelenskyy asked the Venice Commission to „assess the situation” arising after the CCU ruling (it was a novelty because the commission hadassessed draft acts before and not „situations”). Two days later, the president sent a draft act to the Council providing for the reintroduction of penalties for the submission of a false asset declaration in the penal code. Members of parliament are also working on Razumkov’s draft act which was not agreed with the Head of State, to restore the transparency of declarations. It is possible that in the course of legislative work, the control of anti-corruption authorities over judges will be excluded or restricted.

What about the dissolution of the CCU? The head of a parliamentary working group, Dmytro Monastyrsky, has recently only talked about „improving the procedures for its operation”. In theory, the constitutional crisis of this scale could lead to a discussion in Ukraine, known from other countries, on the importance of similar institutions, which can assume the role of the third (and, in the case of Ukraine, the second) chamber of parliament with their creative rulings. However, in the context of the Kyiv policy, it is necessary to draw slightly different, more down-to-earth conclusions, which do not have much in common with the theory of the state. The most important part of the ruling of October 27 is not written. The CCU has recognized Zelenskyy as politically the weakest president in many years.

Law like a drawbar

The resourcefulness of Ukrainian judges is proverbial – in the literal sense of the word because there is a saying among people that “law is like a drawbar, whichever way you turn it, it will come out that way”.

The CCU was usually able to interpret the Constitution so that the incumbent president would benefit from it. And, since the terms of office of the judges of the CCU are very long – nine-year long – it has often happened that the same judges during the term of one president decided that the egg came first and during the term of his successor voted that it was the chicken. Not without reason, Kostiantyn Skorkin from the Carnegie Moscow Center described the CCU as „the Ukrainian version of a deep state in the most condensed form.”

There is no shortage of examples, and perhaps the most spectacular one concerns the procedure for creating the ruling coalition. In Ukraine the coalition agreement is a formalized document which must include a list of members whose number must exceed half of the mandates. So if no party has an absolute majority, the ruling party must show that it has a majority with the help of their coalition partners. In other words, a minority government is theoretically impossible there. In 2008, the CCU confirmed that only entire parliamentary clubs can enter a coalition. This logic does not require any comments.

However, when Viktor Yanukovych won the presidential election in 2010, he decided to build his own majority and, at the same time, destroy the government of Yulia Tymoshenko, who had lost that election. The Yanukovych Party of the Regions was the largest club in the Council, but it was too small to form a government either alone or with ideologically akin communists. Members of the Party of the Regions who eagerly used financial arguments started to draw individual members from other parties who were to be included in the coalition individually. The CCU considered this to be legal, contrary to its ruling from one and a half years before.

Zelenskyy also benefited from the principle that judges vote the way the government wants them to vote. He dissolved the parliament immediately after his victory, arguing that the coalition fell apart (the government of Volodymyr Groysman continued, but was losing many ballots) and the CCU – with the votes of the judges appointed during the term of Poroshenko – considered this argument binding, although it had damaged the interests of the Poroshenko’s Block, the largest club of the previous term. The same principle applies to the lower-level judges who began to accede to the requests submitted by Kolomoisky as soon as it became apparent that Poroshenko, who was at odds with him, is unlikely to beat Zelenskyy.

Return of Ukrainian problems

That is why the October ruling of the CCU should be regarded as a significant turning point in the rule of Zelenskyy. Since the CCU decided that the president should no longer be obeyed, it means that his power has severely weakened. He may have an absolute majority in the Council, but this majority is becoming more and more paper. He is leading the polls interchangeably with Razumkov, but the trend has been declining for almost a year. The presidential Servant of the People won the October local election, but he received the humiliating 14.5 percent of the votes; three times less than in the parliamentary election a year before. Perhaps it was the outcome of the vote in the oblast councils that sent the judges a signal to attack; in any case, the chronology of the events suggested this.

Another thing is that the judges also acted in their own interest because the NACA took interest in their asset declarations. In the weeks preceding the ruling, it was revealed that Head of the CCU Oleksandr Tupytskyi, who was, before the 2013–2014 revolution of dignity, one of the judges loyal to Yanukovych, concealed the purchase of a property in the documents. The very fact was incriminating and, if this were not enough, a journalist of Radio Svoboda revealed that the concealed property is located in Crimea, and the judge registered its purchase in accordance with Russian law, thus recognizing in fact Moscow’s right to exercise power over the peninsula that was illegally annexed in 2014.

Ukraine hasenough constitutional crises to share with several countries. The Ukrainians have already seen election postponed by a few months because the government refused to allocate funds for it, a referendum organized against the parliament’s will, an situation unforeseen by the Constitution of a president’s fleeing from the country and his refusal to perform his duty.

Against this background, the dispute between the Head of State and the Constitutional Court is not so unusual. And the fact that Zelenskyy decided against the nuclear option and moved towards the positional warfare brings us closer to the frequent scenario in Ukraine that political crises tend to become chronic.

However, it cannot be ruled out that the inability of the authorities to restore the legal situation prior to the judgment would encourage judges to start further political storms. For example, Russian could resort to their favourite topics such as the act on the official language or legalization of trade in agricultural land. Especially that it seems that Igor Kolomoisky, who took an unusual path from the sponsor of nationalist battalions on the Donetsk front and the inventor of the candidate of Zelenskyy to the tactical ally of Medvedchuk (Putin baptized his daughter), in the war with President Zelenskyy has moved to the other side of the barricade for good.

The incumbent president undoubtedly has interesting times ahead of him, and the spectrum of possibilities is huge. An optimistic scenario is a recovery after the pandemic, following the results of the polls, and reelection with a result like 52:48, which is closer to European tradition, in the second round. A pessimistic scenario is the disintegration of the Servant of the People, early parliamentary elections and cohabitation with the Council dominated by the pro-European Poroshenko and the pro-Russian Medvedchuk, which will in addition be accompanied by further acts evoking social emotions by the second chamber of parliament in the form of the Constitutional Court. Such drifting Ukraine could not dream of fruitful cooperation with the West. Russia would be content.

Polish version is available here.

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The publication co-financed by the Ministry of Foreign Affairs of the Republic of Poland as part of the public project "Public Diplomacy 2020 – new dimension" („Dyplomacja Publiczna 2020 – nowy wymiar”). This publication reflects the views of the author and is not an official stance of the Ministry of Foreign Affairs of the Republic of Poland.