The constitutional crisis in Ukraine has been ongoing since 27 October 2020 and has not yet reached resolution. President Volodymyr Zelenskyy’s attempts to address the situation have either failed to address the root causes of the problem or in fact deepen these issues - including the recent decision to dismiss two judges of the Constitutional Court. Judicial experts stress that this dismissal may help Zelenskyy appoint judges loyal to him and that a real solution to the problem should include establishing fair, not political, competition.
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What is wrong with the competition to the Constitutional Court?
Prior to the first post-Maidan judiciary reform, the process to appoint judges to the Constitutional Court was poorly defined. The process was legally clarified in 2017; however, these procedures neglect the principle of fair competition. The Constitutional Court is composed of 18 judges: the president, parliament, and the Congress of Judges of Ukraine each appoints six judges.“In practice, the constitutional provision on competition was not applied: there is no single competition commission to select judges, and each of the appointing entities is more often guided by political motivation than by constitutional criteria in the selection of judges,” Oleksandr Marusiak, expert of the Center for Political and Legal Reforms writes.Further, the controversial judges of the Constitutional Court from the pre-Maidan era, in particular those who helped now-exiled president Viktor Yanukovych to usurp power, remained in their positions. Consequently, Yanukovych’s successor, Petro Poroshenko, was blamed for attempting to maintain control over the court through these corrupt judges.
What is wrong with the dismissal of Constitutional Court judges?
At the beginning of the recent constitutional crisis, Zelenskyy’s first proposal was to terminate the powers of the Constitutional Court judges altogether. Though he presented this initiative to the parliament, it was criticized both by NGOs specializing in the judiciary and anti-corruption matters and by Ukraine’s international partners, it was not supported by the MPs, and it was eventually withdrawn. At that time, experts at the DEJURE Foundation explained who has the constitutional power to dismiss judges:“Neither the President nor the Parliament has the power to dismiss Constitutional Court judges. The only constitutional way to dismiss a Constitutional Court judge before the end of his or her term of office, which is permitted by the Constitution, is to dismiss the judge by the court itself, namely by two-thirds of its composition. Therefore, the model proposed by the President in Bill №4288 is unconstitutional.”A recent decision to dismiss two judges faces similar criticism. Zelenskyy, however, does not acknowledge any problems with it.
“Any Presidential Decree, like the law, is constitutional. Constitutionality itself is presumed in accordance with constitutional law until its unconstitutionality is established by a decision of the Constitutional Court of Ukraine. In my subjective opinion, this Decree of Volodymyr Zelensky is completely constitutional. It was signed in accordance with the powers of the President as the guarantor of state sovereignty and territorial integrity,” Fedir Venislavskyy, presidential representative in the Constitutional Court, MP from the Servant of the People party said.According to Fedir Venislavskyy, presidential representative of the Constitutional Court and MP from the Servant of the People party, “quote”
Who are the two judges Zelenskyy dismissed?
Recently, Zelenskyy signed a decree invalidating the appointments of the head of the Constitutional Court Oleksandr Tupytskyi and another judge Oleksandr Kasminin. Both were appointed in 2013 by Yanukovych. According to the president’s decree, this decision was made “to guarantee observance of the Constitution of Ukraine, human and civil rights and freedoms, ensuring state independence and national security, guided by the national interests of Ukraine.”"The usurpation of power in 2010-2014 by Viktor Yanukovych has undermined the foundations of national security and defense of Ukraine, violation of human rights and freedoms, given that certain judges of the Constitutional Court of Ukraine appointed by Viktor Yanukovych to exercise their powers pose a threat to the state independence and national security of Ukraine, which violates the Constitution of Ukraine, human and civil rights and freedoms," the decree states.
During the Yanukovych presidency in 2010, the Constitutional Court ruled to return Ukraine from a parliamentary presidential form of government to a presidential-parliamentary system. This is often referred to as the constitutional coup, and it helped Yanukovych and his supporters acquire more power, which they then used to usurp further power. In fact, one of the core motives of the Revolution of Dignity was the protest of this state of affairs.
