No appointments to the Constitutional Court without a new competitive procedure

On April 20, the President of Ukraine issued a decree “On the Selection Commission for the selection of candidates for the position of a judge of the Constitutional Court of Ukraine in respect of persons appointed by the President of Ukraine”.

By his decision, the President dissolved the previous composition of the Selection Commission and instructed the Head of the Office of the President of Ukraine to nominate candidates for the new composition of the Selection Commission. The very next day, the Head of the Office of the President of Ukraine announced the President’s strong intention to “reload the Constitutional Court” and requested  the G7 ambassadors to recommend experts to the Commission.

This decision of President Zelensky indicates a desire to fill “vacancies” that he argues appeared after the “cancellation of the appointment” of judges Tupytsky and Kasminin in an unconstitutional manner. However, in accordance with the Constitution, the President of Ukraine does not have the authority to dismiss judges of the Constitutional Court.

We believe that by appointing Constitutional Court judges to replace those ones who have been unconstitutionally removed from office, President Zelensky will only deepen the crisis around the Constitutional Court. Instead of restoring confidence in this body, the legitimacy of an institution designed to protect society and the state from usurpation of power and encroachment on the foundations of the constitutional order will be destroyed.

The political and legal consequences of such a decision are completely unpredictable. In the face of military aggression by the Russian Federation, the illegitimacy of a key body in the system of checks and balances will undoubtedly be used by the enemy. Legal uncertainty, which can paralyze state institutions, is an ideal opportunity for foreign invasion, which Russia successfully demonstrated in 2014.

Instead, we believe that the only way out of the constitutional crisis is to introduce a new transparent procedure for the selection of judges of the Constitutional Court, which would guarantee a real competition with the verification of the candidates’ compliance with constitutional requirements.

The selection of candidates for the Constitutional Court for all appointing bodies should be carried out by a single Qualification Commission. Only a transparent and legally sound process can restore public confidence in this institution. Until such a procedure is introduced, the President, the Parliament and the Congress of Judges must refrain from appointing judges of the Constitutional Court. Leading experts have already worked out the concept of such legislative changes, developed a draft law and submitted it to the MPs. The introduction of a new procedure for the selection of judges of the Constitutional Court will make it possible to obtain a high-quality and decent composition of this body within two years and restore public confidence in the Constitutional Court and the state as a whole.

We are aware that this way out of the constitutional crisis is not easy, but complex problems are not solved in one step. Quick solutions often enjoy public support, but in the long run lead to new crises. We believe that the Parliament and the President should take a prudent approach to overcoming the constitutional crisis, showing commitment to democratic values, and proving the maturity of state institutions.

Given the above, we call on:

1. the President of Ukraine – not to appoint judges of the Constitutional Court of Ukraine until the moment of dismissal or termination of powers of judges of the Constitutional Court of Ukraine takes place in accordance with the Constitution of Ukraine;
2. the members of the Parliament – to initiate legislative changes that will introduce a real competitive procedure for selecting judges of the Constitutional Court of Ukraine with verification of candidates’ compliance with constitutional requirements in accordance with the recommendations of the Venice Commission expressed in opinions CDL-PI(2020)018 and CDL-AD(2021)006;
3. the President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine – not to appoint judges of the Constitutional Court of Ukraine until the introduction of a new competitive procedure for the selection of judges of the Constitutional Court of Ukraine.

Signed by:
DEJURE Foundation
Automaidan
Anti-Corruption Action Centre
Centre of Policy and Legal Reform
Centre for Economic Strategy
Anti-Corruption Headquarters
“Public Control” Platform
Anti-corruption Research and Education Centre
StateWatch
CHESNO
Kharkiv Anti-Corruption Centre
Centre of Policy and Legal Reform