16 November 2020
what solutions to the constitutional crisis are presented in the Parliament and why they will not solve the problem

Читати українською
Two weeks ago, the CC cancelled a large part of the provisions of the Law "On Prevention of Corruption" and destroyed the system of e-declaration. In addition, the CC ruled that criminal liability for providing deliberately false information in asset declarations, was unconstitutional.

President Zelensky immediately initiated the dismissal of all CC judges in an unconstitutional way and the declaration that the decision of the CC is void. We have already analyzed all risks of this decision as well as possible ways of solving the constitutional crisis, their pros and cons as well as their possible consequences.

At the same time, MPs started registering their own initiatives aimed at finding the solution for the crisis. We analyzed all legislative initiatives, introduced in the Parliament.

The first draft laws appeared on the website of the Parliament the next day after the scandalous decision of the CC was published. At the moment of publishing this article, there are 26 draft laws introduced in Parliament. However, we are certain that new initiatives are being registered.

We will not analyze all the draft laws in detail as at first few of them have chances to be adopted, and secondly, only some of them include real instruments of solving the existing problems. We will provide only the description of the proposals introduced by the subjects of legislative initiative and sound the position of the Parliamentary committees on them.
Proposals on the Constitutional Court
1. Dismiss all the judges of the CC
The first reaction to the decision of the CC was Presidential draft law #4288 "On restoring the public trust in constitutional justice". Restoring the public trust to constitutional justice the head of the state suggests by terminating the authority of all CC judges, including those, who voted against the scandalous decision.

The President suggested the appointing authorities to launch the selection procedure of new CC judges. We already informed on the unconstitutionality of such a decision and analyzed all the risks its adoption may bring.

The authors of the rest draft laws refrained from the idea to dismiss the CC judges in an unconstitutional way.
2. Block the work of the CC
As soon as the desire to punish CC judges began to fade, MPs started introducing initiatives, which would both comply with the Constitution and allow to block the work of the CC or at least make the decision making the process more complicated.

Halyna Yanchenko introduced the draft law #4308, which provides for the classical solution used by the American Congress – to limit the funding of the CC. The MP suggested to cut the funding of the CC and transfer these funds to the Ministry of Education and Science and direct them on providing additional funding of educational programs in particular development of the infrastructure of the educational institutions and subventions of the educational institutions on the demarcation line with the occupied by Russia territories.

Shortly after, MPs from the "Sluha Narod"', "Holos" factions and "Dovira" group proposed their own way of complicating the work of the CC. They introduced the draft law #4311 (draft law of Korniyenko/Yurchyshyn) envisages that the CC has the authority to hold constitutional proceedings only if it consists of 17 judges (currently this number is 12, i.e. 2/3 of its composition). If this draft law is adopted, the work of the CC will be completely blocked until the appointing bodies fill in at least two vacancies in the CC as now there are only 15 CC judges. The draft law does not concern the issue of the quorum necessary for hearings and adopting decisions. More detailed analysis of the draft law can be found here.

The proposed model completely blocks the work of the CC for an indefinite time, which brings a threat to the effectiveness of the check and balances system. In case the Parliament adopts an unconstitutional law, e.g. the law, which confirms the subjectivity of the occupation administrations, three will be no one to rule its unconstitutionality.

Two alternative draft laws #4311-1 and #4311-2 were submitted by the MPs Fris and Chorny respectively (both are members of "Sluha Narodu" faction). The first alternative draft law envisages that the CC has the authority only if it comprises "2/3rd of judges" instead of "12 judges". 12 judges is a ⅔ majority of the constitutional composition of the CC. Therefore, it is unclear what exactly the author of the draft law had in mind. The draft law provides for the change of the wording and completely changes the context of the provision however, in the opposite direction.

If this draft law is adopted, the CC will always have the authority as it will be determined by the number of current judges and not by the constitutional composition of the court. In other words, if the number of judges will be less than a minimum required for adoption of a decision (10 votes), the CC will still have the authority, but would not have a possibility to adopt decisions.

Such an approach contradicts the very sense of the authority of the body – the body cannot have the authority and at the same time, be deprived of the possibility to adopt decisions. The alternative draft law introduced by MP Chorny provides for the reduction of the number of judges needed for the CC's authority from 12 to 10.

Another way to complicate the process of adopting decisions by the CC is provided by the draft law #4317 introduced by the MPs from "Sluha Narodu" (Ionushas/Arahamiya). The authors suggest changing the requirements for the adoption of the decisions of the CC. In particular, they suggest that at least 12 instead of the current 10 votes are necessary to adopt the decision.

One more initiative introduced by the MPs from "Sluha Narodu", "Batkivschyna", "Holos" factions and "Dovira" group is the draft law #4319. The first authors of the draft law are Olha Sovhyra and Fedir Venislavsky. Both are representatives of the Parliament and the President (respectively) in the CC. Therefore, the probability of the adoption of these draft laws is relatively high.

The draft law provides for an increase of the votes, necessary for the adoption of the decision of the CC from 10 to 12. In case, when hearings are held in Senates, the decision can be adopted not by 2/3rd of the number of judges participating in the hearing, but by at least 6 judges, i.e. 2/3rd of the total number of judges in the Senate. In addition, referring to the practice of other countries, authors suggest that the Rules of Procedure of the CC should be established by the law.

At the same time, the draft law does not provide for the mechanism of functioning of the CC by the time the law on the Rules of Procedure is adopted by the Parliament. If the respective provisions are not included in the draft law and it is adopted, it can fully block the work of the CC until the new Regulation is adopted by the Parliament. As mentioned above, blocking the work of the CC is dangerous in terms of preventing the Parliament from adopting the deliberately unconstitutional decisions.
Last Friday, Parliamentary Legal Committee recommended including draft laws #4311, 4311-1, 4311-2 (on the authority of the CC) and the draft law #4319 (on changing the requirements for adopting decisions and the Rules of Procedure of the CC) in the Parliament's agenda.
3. Changing the procedure for selecting the CC judges
The current crisis, caused by the decision of the CC, is not the first case when this body becomes the source of political and legal instability in Ukraine. The CC adopts politically motivated decisions whereas its judges are dependent and politically biased. The existing selection procedure allows to appoint such candidates.

Therefore, to avoid a similar crisis in future, aside from making the procedure of adopting decisions more complicated it is crucial to establish a new selecting procedure, which would guarantee that only trustworthy candidates will be appointed to the CC.

The MPs of the "European solidarity" and "Holos" factions introduced a draft law #4339, which envisages small amendments to the selection procedure of CC judges. In particular, the draft law provides for involving the members of the Public Council of International Experts (PCIE) to assess candidates to the CC.

The PCIE is a body, which took an active part in selecting judges of the High Anticorruption Court (HACC). According to the draft law, PCIE experts should provide their opinions on the integrity of the candidates. However, such opinions will have legal power, and the appointing body is not legally bound by them. Therefore, such amendments will not significantly influence the selection process of CC judges.

Unfortunately, none of the subjects of the legislative initiative introduced a draft law, which could establish a new transparent procedure for selecting CC judges, envisage the establishment of the single Selection Commission and involving public experts, nominated by the international partners in its work. The respective proposals are outlined in the Judicial Reform Roadmap by the leading CSOs.
Proposals to mitigate the consequences of the CC decision
1. To consider the decision of the CC void
The first to initiate such an approach was the President by introducing his draft law #4288. The head of the state suggests that the versions of the Law "On Prevention of corruption" and the Criminal Code, which were in force before the adoption of the CC decision, are still in force. Such an approach is completely unconstitutional as the Parliament has no constitutional authority to determine which of the decisions of the CC can be enforced and which not.

The similar proposals were laid out in the draft law #4288-1, introduced by MP Honcharenko.
2. To restore the force of the provisions, which CC ruled unconstitutional
The Speaker of the Parliament Dmytro Razumkov introduced the draft law #4304, which was supported by the "Sluha Narodu", "European solidarity", "Holos" factions as well as "Dovira" and "For the future" groups. The draft law provides for "restoring the force" of the respective provisions of the Law "On prevention of corruption" and Criminal Code, which was cancelled by the decision of the CC.

Earlier, we provided a detailed analysis of this draft law and explained why the proposed model would not have any legal consequences if the draft law is adopted. Instead, it will create additional problems with the application of the anti-corruption provisions. If to be short, the provisions, which were ruled unconstitutional, from the legal standpoint of view, do not exist and therefore, it is impossible to restore their force.
The Committee of the Anticorruption Policy of the Parliament recommended adopting the draft law in the first reading. Fortunately, MPs took into account our concerns on the legally unacceptable provisions and agreed to correct them before the second reading.
3. To enforce the decision of the CC
Some of the legislative initiatives provided for enforcing the decision of the CC and laid out the provisions of the respective laws with the consideration of the position of judges.
а) Restoring the authority of the NAPC
The draft law #4300 introduced by the MPs from the "European solidarity" faction provides for introducing the Law "On Prevention of corruption" with provisions, which are almost identical to the ones declared unconstitutional. However a different numeration of the provisions is suggested. Formally, this means the creation of new provisions. This approach complies with the legal drafting requirements however, it does not guarantee that the new provisions will not be cancelled by the CC in future.

The draft law also takes into account the position of the CC that the monitoring of the asset declarations of judges and other anti-corruption actions regarding judges should be conducted by the bodies within the judiciary (we informed earlier why such suggestions are groundless and unacceptable). The authors of the draft law suggest that the judges of the courts of the general jurisdiction will be checked by the High Qualification Commission of Judges (HQCJ) and the CC judges by the newly established Integrity Council of the Conditional Court. The latter is supposed to be established by the Law "On Constitutional Court of Ukraine".

The draft law envisages that before the HQCJ and the Integrity Council are operational the respective authority should be transferred to the High Council of Judges (HCJ).

A slightly different system of prevention of corruption amongst judges is provided by the draft laws #4292 and #4293 introduced by "Batkivschyna" faction. The draft law #4293 envisages that the Law "On Prevention of corruption" should be amended in order to restore the authority of the NAPC only for all public servants except judges.

The function of the system of corruption prevention amongst judges and the mechanism for bringing them to liability should be regulated by the amendments to the Law "On the judiciary and the Status of Judges" and the Law "On the High Council of Justice" introduced by the draft law #4292.

This draft law envisages that the monitoring of the lifestyle of judges must be conducted by the HQCJ, however, such monitoring can be initiated only by the HCJ. The HQCJ can initiate the monitoring by itself only upon the inquiry from natural or legal persons, mass media and other open sources. The monitoring mechanism will be determined by the HCJ. The check of the asset declaration of judges will be conducted by the HQCJ however before it is fully operational, the State Judicial Administration (SJA) will pick up these functions.

A pretty similar model is envisaged by the alternative draft law #4292-1 introduced by the MPs from "Sluha Narodu" faction.

Considering the fact that the doubts about the integrity of the current composition of the HCJ are expressed not only by civic experts but also by the Venice Commission and the international partners it is very likely that granting the HCJ (alternatively the HQCJ or the SJA under the HCJ's supervision) with the authority to control asset declarations of judges will jeopardize the whole idea of the e-declaration and anticorruption system.
б) Restoring criminal liability for providing false information in asset declarations
Draft laws #4288 and #4304 provide for restoring the article 366-1 of the Criminal Code cancelled by the decision of the CC.

The draft law #4301 introduced by the MPs from "European solidarity" faction envisages that the Criminal Code should be supplemented with the Article 366-2, which consist of the same provisions as the Article 366-1, cancelled by the decision of the CC.

At the same time, the draft law #4307 introduced by the "Batkivschyna" faction provides for laying out Article 366-1 in the new edition, which would repeat the cancelled one. However, the new Article changes the elements of the crime – the list of subjects, which can be brought to the criminal liability is significantly narrowed down even though the judges are included in this list.

Two more draft laws were introduced by the Head and other members of the Parliamentary Committee on Law Enforcement. The draft law #4309 envisages supplementing the Code on Administrative Violations with the new Article 172-6, which establishes the administrative liability for providing false information in electronic asset declarations. The draft law #4310 provides for supplementing the Criminal Code with the Article 366-2, which completely repeats the Article 366-1, which was cancelled by the decision of the CC, except the new Article increases the size of the fine and excludes imprisonment from the list of sanctions.
Despite the fact that the Parliamentary Committee on the Law Enforcement has not reviewed the introduced draft law yet, draft laws initiated by the Head of the Committee and its members have more chances to get the support of the Committee.
Our position regarding the introduced draft laws and possible solutions of the crisis
It is the responsibility of the MPs to choose which decision must be adopted. It is obvious that the decision must be made based on the estimation of its consequences.

We believe that the Parliament should concentrate its efforts on temporarily blocking the possibility of the CC to ruin other reforms until its new composition of high integrity is formed and the new transparent procedure of selection of CC judges is established. We are sure that such selection should be conducted by the single selection commission, which would consist of legal professionals and public experts, supported by international partners.

Once the new procedure is established, the competition to fill in the vacancies within the CC should be conducted, and the trustworthy candidates should be appointed to the CC. For the transition period (until the moment when the composition of the CC is formed according to the new procedure), it is necessary to make the process of the adoption of the decision by the CC more complicated by changing the quorum requirements or requirements for adopting decisions.

With regard to restoring the provisions on e-declaration, it is necessary to lay out the respective provisions of laws in the new edition. This will allow avoiding the situation when the legal force of these provisions is questioned in courts. At the same time, there is no reason for establishing a separate e-declaration system for judges as the CC did not provide significant arguments for such an approach. We believe that the system, which existed before the adoption of the CC's decision fully complied with the principle of distribution of powers, was a component of the check and balances system and ensured the accountability of the judiciary as well as complied with the European standards.

Therefore, the Parliament must restore this system in its original form. Although the decision of the CC is final and cannot be appealed, the Parliament must regulate social relations in a manner, which complies with the Constitution even if the CC itself adopted a decision contradicting the Constitution. The CC will be able to review the constitutionality of these norms and change its legal position in future. Such a struggle between the Parliament and a body of constitutional justice is common for democratic countries.

In addition, it is necessary to restore criminal liability for providing false information in asset declarations.

P.S. We deliberately refused from analyzing the draft laws introduced by the MP Dubinskyi from "Sluha Narodu" faction. He is well known for his anti-Ukrainian statements and activity. The draft laws introduced by him are deliberately blocking any attempts to restore the system of e-declaration and finding a solution for the crisis, provoked by the decision of the CC.
find out more