On September 16, the Constitutional Court of Ukraine ruled certain provisions of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” unconstitutional.
They will become invalid on December 16. The Verkhovna Rada of Ukraine has less and less time to handle the situation. Therefore, most likely, the National Anti-Corruption Bureau will soon face considerable obstacles doing its job. Although a number of draft laws have already been submitted, they have not even been considered in the committee yet. Moreover, the draft law promised by the President has not yet been registered.
Let’s think back to what this decision of the Constitutional Court is about, and what the possible consequences are of deferring the adoption of amendments to the legislation.
The decision of 16 September
The Court declared certain provisions of the Law “On the NABU” unconstitutional. These are the powers of the President of Ukraine to establish the National Anti-Corruption Bureau of Ukraine, to participate in its formation and in the establishment of bodies that will control it.
On September 16, the Constitutional Court of Ukraine has recognized the following powers of the President as inconsistent with the Primary Law of Ukraine:
- to establish the National Anti-Corruption Bureau of Ukraine;
- to appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine;
- to appoint three persons to the selection board for the position of Director of the National Anti-Corruption Bureau of Ukraine;
- to appoint one member of the external control commission to conduct an independent; assessment (audit) of the performance of the National Anti-Corruption Bureau of Ukraine;
- to approve the Regulations on the Public Oversight Council and on the procedure for its formation.
The Parliament has been slow to take any action, although there is only a month left to do it.
TI Ukraine’s Head of Legal Kateryna Ryzhenko expressed her opinion on this issue for Radio Free Europe:
“At first, there had been much discussion about this decision, but in the end, after other fails and crises, they managed to forget about it. The Constitutional Court ruled all the powers that the President of Ukraine had had under the Law ‘On the NABU’ to be unconstitutional. Now the Parliament is obliged to bring the legislation in line with the Constitution in three months. The Verkhovna Rada has not yet considered it either in committees or in the first reading. And if MPs don’t do it urgently within a month, we will end up in a situation where the old provisions no longer are in force, and the new ones have not been adopted instead. It will turn out that the articles of the law which were the basis for establishing NABU and the Public Oversight Council are unconstitutional. And then legislative and legal chaos will ensue. So, it is difficult to imagine what exactly will happen next.
The decisions of the Constitutional Court over this year have not been accidental, as they systematically have weakened the anti-corruption infrastructure. At least, this is how the National Anti-Corruption Bureau has interpreted the situation. The NABU thinks that the main challenge is to maintain the anti-corruption bodies` independence.
What are the consequences?
Radio Free Europe has collected expert opinions on the consequences that await Ukraine if the Verkhovna Rada does not respond in time.
Legal chaos: Ukrainian courts will question certain actions of the NABU, especially the staffing decisions of its Director.
Pressure on the NABU from those forces that are not interested in solving corruption crimes will increase.
One of the next decisions of the Constitutional Court may be to declare unconstitutional the actions of the Parliament in the process of forming the Anti-Corruption Bureau.
There will be no legal mechanisms for appointment/dismissal of the NABU detectives, as well as for appointment/dismissal of the Director of the Bureau.
If the issue is not resolved by the time Artem Sytnyk’s term of office ends, it will be impossible to appoint a new Director of the body.
Support from the international community for Ukraine will keep decreasing, as the creation of an effective anti-corruption infrastructure was one of Ukraine’s obligations to Western partners.
Is there a way out?
Now there are two major issues:
- How to slow down the Constitutional Court’s desire to infringe reforms and the integration progress towards Europe.
- How to restore the effective anti-corruption system and its tools.
If we do not start resolving problems now, then very soon we will wake up in a country without reforms and with an economic collapse.
So, we offer the following action plan:
We call for the immediate voluntary resignation of all judges of the CCU who supported that shameful decision. However, it will be possible only if they have a modicum of respect for themselves and the State. Ukraine is not their hostage.
The Parliament and all parties should put aside their political whims and focus on the key issue – the Constitutional Court of Ukraine.
MPs should change the law on the Constitutional Court of Ukraine in terms of increasing the quorum to at least 15 judges to participate in a proceeding for decision-making.
It is necessary to amend the law on the Constitutional Court of Ukraine and elaborate a transparent, fully apolitical, and accountable competition procedure.
After that, a competition under new rules will take place/will be organized, and vacant positions (there are 3 of them now) will be filled.
The President and Parliament should start a complete reset of the HCJ and HQCJ and a full dissolution of the Kyiv Administrative Court. The situation with the Constitutional Court is another indicator of a full-scale judicial reform problem (or something like that).
So, we will launch a legal mechanism for resetting the Constitutional Court with breakers (quorum) to arbitrary or stimulated by the country enemies` actions. All these actions are quite legitimate, comply with both the Constitution and the powers of the legislative branch of government, and therefore will be adequately perceived by the expert community and our international partners.