Constitutional crisis: How does the government plan to solve it?

Author : Natalia Lebed

Source : 112 Ukraine

President Volodymyr Zelenskyy invited the Venice Commission to act as a referee and judge his conflict with the Constitutional Court
23:31, 8 December 2020

The Constitutional Court of Ukraine (CCU)
Open source

The Court itself, meanwhile, is going to consider the law on the land market next week. In theory, it is possible that the judges will find it inconsistent with the Constitution. Both with the subsequent laws, according to which the submissions will be received. But this is only if the Court deliberately aggravates the conflict. What will happen to the authorities and the state then?

A brief history of the issue

The president and the court clinched on October 27. On that day, the Constitutional Court made a decision in the case on the proposal of 47 MPs of Ukraine, repealing Article 366-1 of the Criminal Code, which provides for liability for inaccurate declaration.

The very next day, the National Agency for the Prevention of Corruption closed access to the Unified State Register of Declarations.

The President got angry and took a step forward: he submitted a draft law to the Verkhovna Rada, which proposed to terminate the powers of the entire composition of the Constitutional Court.

This document was absolutely unacceptable from the point of view of the current legislation. And the parliament did not even consider it.

Then Zelensky invited the judges of the Constitutional Court to resign voluntarily. The judges ignored this call. Only one resigned - Igor Slidenko, who was just the reporter on the e-declaration case. Slidenko said he was pressured and then forced to resign.

Four more members of the Constitutional Court refused to participate in a meeting a month ago, where the law on land was on the agenda. Among those who refused were the deputy chairman of the court, Serhiy Golovaty, as well as Oleg Pervomaisky, Viktor Kolesnik, Vasyl Lemak.

Since then, that is, since the beginning of November, the court has not gathered for a hearing. Also, under the plausible pretext that part of its composition fell ill with coronavirus infection.

Meanwhile, in the Verkhovna Rada Speaker Dmytro Razumkov was looking for a way out of this situation. He proposed, perhaps, the only acceptable option: since the decisions of the Constitutional Court are final, not to return to the old (canceled) laws, but to adopt new ones. So the draft law No. 4304 was registered, which is proposed to restore the norms of e-declaration.

However, the MPs have not yet considered it. Meanwhile, the president turned to the Venice Commission for help.

Venice Commission factor

The Venice Commission is one of the organs of the Council of Europe. Its function is consultative, it never interferes in the internal affairs of other states, but assesses the laws they have adopted in terms of their compliance with European legislation.

However, in this case, there is not a specific law on its table. Volodymyr Zelensky asks the commission to assess the constitutional crisis in Ukraine, as well as assess the actions of the judges of the Constitutional Court.

This is a strange and atypical request. The president can be understood: after the Court, by its decision, canceled part of the anti-corruption legislation, the "collective West" expressed its dissatisfaction with the head of the Ukrainian state. And the same Council of Europe.

They even discussed the theoretical abolition of visa-free travel.

Therefore, Zelensky's step is, to a certain extent, a step of despair. However, will it be useful? Evropeyska Pravda, citing sources, writes that the commission is now in a hurry to resolve this issue. There is a possibility that the Ukrainian issue will be considered even at the December session.

But if Zelensky is counting on Commission 's criticism of the actions of the Ukrainian Court, then he is doing it in vain. The commission's rules read: "The assessment of decisions of national constitutional courts is not the business of the Venice Commission, because these are bodies that have the authority to give the final interpretation of the Constitution. Therefore, the VC will refrain from expressing a position on the validity or groundlessness of the Court's decision."

This is a quote from the actual decisions of Commission taken on other precedents related to national constitutional courts.

Related: Constitutional Court's decision threatens Ukraine’s visa-free travel with EU, - MFA

An appeal to the Venice Commission will not give Ukraine anything and will not solve its problems, political scientist Bogdan Petrenko is convinced. These kinds of issues should be resolved independently, because even if some valuable advice comes from Venice or Strasbourg (the two headquarters of the commission), this will not change our main problem: the rotting of the entire judicial system.

Because the story of the Court, Petrenko is convinced, once again emphasizes that judges in Ukraine make decisions, being either politically or financially motivated, and such a system should be broken. But this is a task for an indefinitely distant future. Now the question is what to do next? In particular, to President Zelensky.

The parties are ready to negotiate

There are only two options for how it looks. First: extinguish the fire on your own and try to achieve a tactical truce. Second: to amend legislation in order, for example, to restore e-declaration and remove the discontent of the West. But such a scenario may lead to the fact that the Constitutional Court again blocks the implementation of this or that law, declaring it unconstitutional.

Sources of insist that a truce option will be implemented. There are several observations in favor of this.

“Have you noticed what a sudden calm has come? - asks Bogdan Petrenko. - There was so much noise and threats, and now the constitutional crisis has begun to cool down a little. It is still there, but not as acute as it was in the beginning. Passions have subsided, and as soon as they are completely forgotten, the president and the court will find a common language. "

The main task for today, Petrenko believes, is to transfer this conflict to the category of non-media. And then you can pretend that nothing happened at all, and start negotiations behind the scenes.

MP Antonina Slavitska suggests that such negotiations are going on now. Her arguments: the congress of judges, which was to take place literally these days, has been postponed to February. The formal basis is a letter from ... the chief sanitary doctor Viktor Lyashko about the danger of assemblies during the epidemic.

The fact is that the congress of judges in the context of the constitutional crisis is important because they must choose a replacement for Igor Slidenko, who voluntarily left his post. “We have a moment of delaying the completion of the Constitutional Court,” Slavitska comments. This, in her opinion, suggests that the auction has already begun. And these auctions will be conducted for each seat in the Court.

Meanwhile, the head of the Third Sector Center, Andriy Zolotarev, generally suggests that the Constitutional Court was used as an excuse to completely change the configuration of power.

“You understand,” he notes, “there is someone behind every judge of the Court. And not just someone, but very serious forces. And these forces are now unhappy with their status quo. E-declaration is just a tool to undermine situation ".

Now such forces will begin to negotiate, the expert says. If they succeed, the conflict will be minimized. If not, then early parliamentary elections will take place next year. Moreover, the current dissatisfaction of private entrepreneurs, trade unions and state employees will also bring the need to hold them. "The Rada will not agree to any lockdown until this issue is resolved," Zolotarev says.

He does not exclude that the negotiation process will be successful. "The suspension of the consideration of the land law, which took place a month ago, did not happen for nothing - it is a sign that the parties are ready to negotiate and seek a compromise," Zolotarev says.

But what about the land law, which the Court plans to tackle next week? Antonina Slavitska explains: it will be about the official interpretation of the Constitution, and not about the recognition of the land market as unconstitutional. "But if the Court interprets this so that only the Ukrainian people can determine through a referendum how to dispose of land, then this may be the basis for repealing the laws on the land market."

... or pass new laws

But let's not forget that there is still a second option. Not "put up" with the Constitutional Court, but look for ways to get around the decisions it has already made. That is, to adopt new laws within the framework of Ukraine's anti-corruption obligations.

A similar plan is also being considered. Speaker of the Verkhovna Rada Razumkov told about this on the air of 112 Ukraine. According to him, the positions of parliamentary factions and groups got down to: 1) restore criminal punishment for failure to provide information or providing false information in declarations; 2) create conditions that would allow the NAPK to function effectively; 3) create conditions that would balance the decisions of certain institutions of power, including the Court.

"If by the end of the year this article (on responsibility for inaccurate information) is not returned, it will seriously jeopardize the fact that people will not be declared next year. I believe that this is unacceptable, and we must do everything in including making compromises, sometimes making compromises with oneself, so that it works effectively. And so that in the future the decision of the Verkhovna Rada does not provoke a discussion on constitutionality," says Razumkov.

It is a little unclear what the chairman of the Verkhovna Rada means when he speaks of "compromises with oneself" and "the balance of decisions of the institutions of power, including the Court."

Bogdan Petrenko, in this context, proposes a radical option: "to approve a mechanism by which the decision of the Constitutional Court can be canceled. Let this mechanism be as complicated as the impeachment procedure, but it should be so that the judges of the Constitutional Court remember that they are not the ultimate truth."

Petrenko reminds: Ukraine, after all, is a parliamentary-presidential republic, which means that parliament is the main body in the country. It, accordingly, is given carte blanche.

This is, of course, a utopian option. Because at one time the Constitutional Court was created precisely as a special superstructure over the judicial, and over the legislative, and over the executive power. With the aim of excluding the influence of political and oligarchic groups on the quality of the adopted laws.

But Doctor of Law, Professor Vitaly Zhuravsky reminds that the decisions of the Constitutional Court - regardless of whether someone likes them or not - must be carried out unconditionally. “If you are a person with legal consciousness, you must obey them,” he says. And he cites as an example neighboring Poland, where the Constitutional Court decided to ban abortion - despite the active public resistance of part of the population.

"The conflict is artificial, created by the Office of the President. And all because the judges of the Constitutional Court decided to abolish a number of unconstitutional laws, in particular on the turnover of agricultural land. Because, according to the Constitution, this issue can be resolved only through a referendum," he said.

Zhuravsky criticizes the bills that are being introduced by representatives of the presidential faction now. Their goal is to increase the threshold of the Court's powers (that is, quorum) from 12 to 17 judges, and the minimum number of votes required for a decision from a simple majority of 10 votes (as it is now) to two-thirds of the composition of the court.

"If you cannot bend the judges, then their work should be blocked. This is what these bills are aimed at," he says.

It would be better for the parliament to complete the composition of the Court, the expert says. After all, if the congress of judges has to fill one vacancy, then the Verkhovna Rada - as many as two.

So, now there are 15 judges out of the necessary 18 in the Court. This small group of people in one way or another is involved in the current crisis, which is not yet in sight. It is only obvious that if such a crisis is not resolved, there will be no quiet life in the country. At least the work of the parliament, which is under the sword of Damocles due to the Constitutional Court's bans, will definitely be paused.

Related: Consequences and results of 30 years of self-government in Ukraine

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