On October 29, 2020, the President of Ukraine submitted to the parliament the Draft Law of Ukraine “On Restoring Public Confidence in Constitutional Proceedings”, which was registered as No. 4288. The aim of the Draft Law is “restoration of the operation of the body of constitutional jurisdiction in accordance with the principles of rule of law and protection of the Constitution of Ukraine”.
Circumstances of submission of the Draft Law
The submission of the Draft Law 4288 to the Verkhovna Rada of Ukraine was preceded by an urgent closed-door meeting of the National Security and Defense Council of Ukraine. The decision of the National Security and Defense Council, adopted at this meeting, was enacted by the Decree of the President of Ukraine №477/2020. In addition, in pursuance of the decision of the National Security and Defense Council, the Cabinet of Ministers of Ukraine adopted the Order № 1363-р dated 29 October 2020, which restored the electronic declaration system contrary to the Decision of the Constitutional Court of Ukraine. That is, public authorities have ignored Article 151-2 of the Constitution of Ukraine without any legal basis: decisions and conclusions adopted by the Constitutional Court of Ukraine are binding, final and cannot be appealed.
It should be noted that before that, representatives of many political parties called for the development of rapid and efficient legal amendments to restore the anti-corruption infrastructure. The position of the Chairman of the Verkhovna Rada of Ukraine was similar, he supported the idea to make fast substantive amendments. Dmytro Razumkov also noted that pressure on any branch of power, including the judiciary, is unacceptable. Therefore, the position of the Parliament looks more constructive.
There is no doubt that the anti-corruption infrastructure needs to be restored urgently. But this fact cannot be a reason for usurpation of power and destruction of state institutions.
Possible positive idea of the Draft Law (according to the President)
The President, “taking into account the impertinent and unprecedented violation by the Constitutional Court of Ukraine of the fundamental principles of its operation in the course of consideration of case No. 1-24/2020(393/20) and the attempt to overthrow the constitutional system and seize state power in Ukraine” submitted that bill to the Parliament; in the President’s words, the bill was developed for the purpose of ensuring compliance with the constitutional order in Ukraine and preventing usurpation of power by the judges of the Constitutional Court of Ukraine.
Threats of the Draft Law
The negative aspect of the Draft Law is that, in spite of the provision of Article 8 of the Constitution of Ukraine, according to which “the rule of law shall be recognized and effective in Ukraine and the Constitution of Ukraine shall be regarded as superior law”, the President proposes the following in his bill:
- The Verkhovna Rada of Ukraine, acting in excess of its constitutional powers and without referring to any norm of the Basic Law of Ukraine, shall declare CCU Decision No. 13-р/2020 null and void and reinstate, from the day of coming into force of the new Law, the versions of the Law of Ukraine “On Preventing Corruption” and the Criminal Code of Ukraine that had been valid before the Constitutional Court of Ukraine adopted its aforementioned decision.
- Part one, Article 2 of the Draft Law proposes that the powers of all judges of the CCU should be terminated – again, no reference is made to any norm of the current Constitution. Such “updating” of the parliament’s powers through a Law of Ukraine runs counter to the provisions of Article 85 of the Constitution, which specifies the complete list of powers of the Verkhovna Rada of Ukraine.
In addition, there are such threats:
- The Draft Law completely ignores the provisions of the Constitution of Ukraine, which establish the principles of functioning of the Constitutional Court of Ukraine. In particular, Article 149-1 of the Basic Law provides exclusive grounds for termination of office and dismissal of a judge of the Constitutional Court of Ukraine. Draft Law 4288 does not correlate in any way with this Article (it is in fact a violation of this Article).
- The Constitution of Ukraine also does not provide grounds for the simultaneous termination of the entire Constitutional Court of Ukraine. International standards for constitutional oversight bodies are based on the continuity of these institutions. In addition, their members (judges) are gradually renewed, which guarantees their political independence. The “model” proposed by the President to replace all the composition of the Court will lead to the situation when all judges will be changed simultaneously every nine years (i.e. the President deliberately enshrines in Draft Law 4288 the cyclical nature of the crisis of the constitutional oversight body). It also completely contradicts the concept of judicial reform, the elements of which have been implemented since 2014 in cooperation with foreign partners and experts.
- Attempts to technically cancel the Court's decision by Law undermine the separation of powers in the state and set a precedent for the executive and legislature to arbitrarily overturn any decision of any court that is politically inappropriate for them.
All in all, there are all grounds for claiming that the Draft Law proposes that the powers of the Constitutional Court of Ukraine be terminated in a non-constitutional way and all the elements of usurpation of powers are present in it.
The adoption of the Draft Law may result in a political crisis in Ukraine. In addition, the President, by his unfounded decisions, further undermines the anti-corruption infrastructure, putting it outside the legal field and creating grounds for a successful cancellation of all related issues in the European Court of Human Rights.
Possible way to secure anticorruption legislation after the CCU decision
It is possible to propose by this Draft Law to change all repealed provisions of the Law of Ukraine “On Preventing Corruption”. Appropriate amendments to the article of the Criminal Code should also be envisaged. The preamble must refer to Article 8 of the Constitution of Ukraine. It is also necessary to refer to the provisions of part two of Article 32 of the Basic Law of Ukraine, which essentially allows the collection, storage, usage and dissemination of confidential information about a person without his/her consent, in cases specified by law and in the interests of national security, economic welfare and human rights. Probably, it is even necessary to change the very name (title) of the Draft Law or immediately introduce another Draft with the specified amendments, without affecting the Court’s Decision and without even terminating the powers of the CCU. This should be done immediately so that the necessary changes to the Law and the Criminal Code are made next week.