Misrule of law: Ukraine’s constitutional crisis

President Volodymyr Zelensky could violate the constitution as he tries to prevent the Constitutional Court from dismantling governance reforms

Ukraine’s political problems have been building up since spring. In March, President Volodymyr Zelensky unexpectedly removed his first government, which had only been in office since late August. Like Zelensky himself, that government had many faces. But some ministers had done good things, such as working to complete the legal reforms that his predecessor, Petro Poroshenko, implemented between 2014 and 2019. Today, Zelensky faces a full-on legal and constitutional crisis engineered by anti-reform forces in the country – local oligarchs and their proxies, as well as Russian propagandists. He has belatedly promised to fight back, to try and save what is left of his presidency. But his options are limited.

Instead of just replacing the prime minister, Zelensky progressively removed all reformers from the cabinet, state-owned enterprises, and government agencies. His timing could not have been worse. The new prime minister, Denys Shmyhal, was competent enough in his response to the coronavirus crisis. Yet Ukraine is one of several countries in which bad actors have used the crises of the moment as an opportunity to covertly dismantle reforms, betting that there would be no pushback from a European Union focused on the pandemic and a United States preoccupied by its presidential election.

Zelensky did nothing while revanchist oligarchs and Russian propagandists attacked EU agreements as “external governance” and domestic reformers as Sorosyata ([George] Soros’s piglets). Worse, some of Zelensky’s new appointments – such as that of the chief prosecutor, Iryna Venediktova – fanned the flames. As Zelensky was elected to fight corruption, his Servant of the People party fared poorly in the October local elections. The party’s once-impressive majority in the national parliament seems certain to disintegrate. Smelling blood in the water, judges on the Constitutional Court have thrown out every vestige of reform they can find.

The fact that they are attempting to knock down all the dominoes at once is damning in itself. However, the main problem is that Zelensky has few ways to preserve the legal order and the reform process without violating the constitution. And it is unclear whether the European Union would support him in this. Moreover, Ukraine is now in direct violation of its visa-free travel agreement with the EU, as well as the conditions attached to loans from the International Monetary Fund and other organisations – conditions related to a recent land and banking reform law, the independence of the judiciary, and the central bank.

Smelling blood in the water, judges on the Constitutional Court have thrown out every vestige of reform they can find.

The crisis partly results from the efforts that Ukrainian oligarchs and other anti-reform forces have made to rebuild their influence in the judiciary in 2019 and 2020. When Poroshenko was president, they were largely on the defensive, intent on resisting legal reforms at every stage. Zelensky’s first chief prosecutor, Ruslan Ryaboshapka, initially led a campaign against such resistance. He was not prepared to selectively prosecute leading figures of the Poroshenko era or the enemies of the oligarchs who backed Zelensky. In contrast, Venediktova appears to have shot the messenger – by harassing and laying charges against reformers, including Ryaboshapka.

In summer, the National Anti-Corruption Bureau (NABU) tried to take over by opening cases against several key judges. In a high-profile scandal involving Kyiv’s powerful District Administrative Court, several leading judges were caught taped saying: “we are unique. We are the only court that has survived all of them for five years. Unliquidated, unreformed, unassessed.” They even refer to their own “political prostitution”.

So, the judges appear to be lashing out to protect themselves. In a series of judgements, the Constitutional Court dismantled key aspects of the post-2014 reform agenda. It has thrown out the electronic system through which politicians were obliged to declare their assets. It has ruled that Poroshenko had no constitutional authority to establish NABU in 2015 and that its boss, Artem Sytnyk, was illegally appointed. The head of the Specialised Anti-Corruption Prosecutor’s Office, Nazar Kholodnytsky, resigned in August and has not been replaced, leaving the organisation in a kind of cryogenic storage. Many of the candidates chosen by parliament as a replacement selection committee in September appear to be insufficiently independent or free of allegations of corruption.

The Constitutional Court is also threatening to rule against the land and banking reform law – indicating just how politicised the judicial process has become. The law, only passed in May, was supposed to guard against attempts to undo the government’s reforms to the banking sector after 2014. Under these reforms, the authorities spent billions to clean up and rescue the financial system by closing down, nationalising, or bailing out 90 banks. Any reversal of the reforms would put a massive hole in Ukraine’s budget and threaten the stability of its monetary system.

Zelensky recently seemed to realise that his failure to push back against anti-reform forces had made him a prisoner of the oligarchs. Yet he has come out fighting. In an op-ed for the Financial Times published on 1 November, he defined his enemy as “a coalition of Russian proxies and some prominent Ukrainian oligarchs who feel threatened by the activities of our anti-corruption institutions”. And Zelensky wants parliament to pass a bill that would dismiss all current members of the Constitutional Court. Meanwhile, parliament will vote in mid-November on whether to restore the anti-corruption laws the court has struck down.

Under the constitution, parliament only appoints six of the court’s 18 judges, who serve nine-year terms. The president appoints another six, and a Congress of Judges the remainder. All six presidential judges were appointed by Zelensky’s predecessors. Even the longest-serving of them – the court’s chair, Oleksandr Tupytsky – was only appointed (by Viktor Yanukovych) in 2013, meaning that he has two years of his term left.

Zelensky could try to encourage some of the Constitutional Court’s judges to resign, thereby sabotaging its work. Given that the court’s key vote on the anti-corruption legislation was split 11 to 4, there is a minority he could try to persuade to preserve the reforms. (Three judges did not vote; four of those who supported the motion appeared to have a conflict of interest, as they faced controversy over their incomplete or misleading asset declarations.)

Ukraine’s last major Constitutional Court crisis occurred in 2007 – when the court became unable to adjudicate on a dispute between parliament and the president. The resulting backroom deal between then-president Viktor Yushchenko and the opposition helped Yanukovych gain the presidency three years later. Hopefully, Ukraine can do better this time.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of its individual authors.

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