Possible ways of solving the constitutional crisis

The President introduced in the Parliament the bill #4288 “On restoring the public trust in constitutional justice”. The bill provides for the termination of the authority of all CCU judges (including those who voted against the controversial decision).

Constitutionality

Neither the President nor the Parliament can dismiss the CCU judges (their powers are explicitly listed in the Constitution, articles 85, 106 and others). The Constitution of Ukraine provides that only ⅔ majority of the CCU can dismiss a CCU judge from their office before their term is expired. Therefore, the model envisaged in the draft law #4288 is unconstitutional.

1. The termination of the authority of all CCU judges by the law prevents or at least delegitimizes further attempts at dismantling the anticorruption institutions and other reforms;
2. It also opens an unprecedented opportunity to form a new composition of the CCU of high integrity and public trust;
3. It is the most viable political decision as the President already introduced the bill.

Besides the unconstitutionality of this decision, there are several other substantial risks:

1. Dangerous precedent. This decision can open the way of further unconstitutional attempts at ‘relaunching’ other institutions for decisions that are not popular or do not fit the Government’s agenda or other vested interests, even in the situations when these decisions were not wrong;
2. New CC of low integrity. The new composition of the CC might be of the same low integrity as the bill #4288 does not provide any changes to the procedure of the selection and appointment of the CC judges; without the additional procedural safeguards the new composition will be very likely dependent on the current political establishment; termination of the whole composition of the CC will also include the judges who did not vote for this decision and actively opposed it.
3. Two CCs. It is very likely that the current CC judges will ignore the unconstitutional decision of the Parliament and, if a new CC is formed, there might be two constitutional courts in addition to the two Supreme courts; the legitimacy of each court will be questionable;
4. The impossibility to form a new credible CC. As the current composition of the CC would be terminated in an unconstitutional manner, there is a high risk that respected lawyers / legal scholars would refrain from participating in a competition to the new CC.

Currently there are 3 vacant seats in the CCU. 2 judges can be appointed by the Parliament and 1 by the Congress of Judges. Judge Slidenko announced that he has submitted a letter of resignation, which if granted by the ⅔ of judges will open another vacant seat (to be filled in by the Parliament). With public pressure other judges may follow. 3 more vacancies will open in 2022.

To exclude untrustworthy judges from being appointed a new selection procedure should be adopted: a single independent selection commission, consisting of public experts and/or international experts supported by the international partners as was proposed in the Judicial reform roadmap. Our colleagues from the ANTAC also proposed the solution for the selection procedure in their analysis.

Constitutionality

The Constitution requires that that the judges are selected as a result of the competition the procedure for which is defined by the law. Therefore, this model not only fully complies with the Constitution, but also implements its important provision that was previously ignored.

This model provides for gradual changes in the composition of the CCU in line with the Constitution. If implemented, it provides for selecting a majority of decent CCU judges before 2022.

1. This model does not provide for the full renewal of the CCU and keeps the judges who adopted the decision in their positions;
2. The CCU will be capable of adopting other dangerous decisions regarding the anticorruption and other reforms if no other safeguards are implemented (at least until 2022);
3. It will be hard to keep momentum and the focus of the attention on the problems throughout years.

As the CCU is the constitutional body, dealing with the issue of its composition by the Constitutional amendments as a legitimate and fully constitutional way.

Constitutionality

This model is in line with the Constitution.

The Constitutional amendments open the way to fully restructure the CCU and even modify the rules for selection of the judges to increase the possibility that the new composition is of high integrity and competence.

1. It is virtually impossible to get 300 votes in the Parliament for the good version of the amendments;
2. The development and adoption of the amendments will take months if not years;
3. The Constitutional amendments will require the approval of the CCU that will most likely not give it.

Bringing a CCU judge to a criminal liability is a constitutional ground for their dismissal. There is already a criminal investigation in regard to the CCU president Tupytskyi, and other judges might have been involved in criminal activity connected to the adoption of this decision.

In addition, amendments to the CCU law can be introduced that will enable the suspension of a CCU judge who is investigated or accused of a crime.

Constitutionality

Dismissing a CCU judge as a result of criminal investigation is constitutional only if they are found guilty by the court. Suspension of CCU judges is not provided for in the Constitution, therefore the constitutionality of such law is questionable.

1. If some of the judges are found guilty, they are dismissed from their positions automatically;
2. The judges who did not support the decision will keep their positions.

1. It is very hard to prove the criminal offence that is connected to a decision-making of a judge;
2. The investigation and court hearings will take years; the other reforms will be endangered during this time if the judges are not suspended;
3. The law that introduces the suspension mechanism will likely be found unconstitutional;
4. There is a risk of politicizing the criminal investigations to achieve quick renewal of the CCU.

Voluntary resignation of the CCU judges who voted for this decision as a result of loss of legitimacy and public pressure is logical. The whole composition of the Constitutional court of Moldova resigned in a similar situation in 2019.

Constitutionality

Voluntary resignation is a constitutional ground for dismissal of a CCU judge.

1. Voluntary resignation of the judges who voted for the decision the is the least invasive way to renew the composition of the CCU;
2. The judges who did not support the decision will keep their positions.

1. This scenario is very unlikely as all but one CCU judges show no signs of the will to resign;
2. While the public pressure for the resignation of the judges is accumulated, other reforms and important laws are endangered.

One of the easiest ways to prevent the CCU from reversing key reforms is to complicate the procedure for adopting its decisions.

Currently the quorum for considering the cases before the CCU is 12 judges and the decisions are adopted by the simple majority – 10 votes. These requirements are established in the law on the CCU that can be changed by 226 votes in the parliament. The Constitution is silent on this issue.

The Parliament can raise these requirements by amending the law, thus making it more difficult for the judges to pass decisions. There are now 15 judges in the CCU. The minimum quorum for considering cases and the adoption of the decisions could be raised to 14 or even 15 thus requiring a consensus to make any decision. This rule could be working until the majority of the CCU judges are not selected within the new and transparent procedure. This instrument can be additionally implemented to the model described in para 2.

Constitutionality

This model fully complies with the Constitution as the requirements for the adoption of the decisions and the quorum are defined by law.

This model will complicate the adoption of the decisions by the CCU and give more leverage for the trustworthy CCU judges thus making other decisions on reversing key reforms less probable or block the activity of the CCU altogether before its composition is renewed.

1. As the adoption of the decisions by the CCU will be complicated it would not be able to cancel clearly unconstitutional decisions made by the Parliament/the President/Government until these new requirements are in place;

2. Although the Constitution is silent on the number of votes required for adopting the decision, the CCU may take it as an infringement of its independence and declare it unconstitutional. However, this will be hard to do legally if the new legislation requires consensual voting to adopt any decision including this one.

Under current regulation, 4 judges can block the CCU from adopting any decision. Exactly 4 judges voted against the decision on the e-declarations. These judges may be convinced to not take part in the CCU hearings before the issue of the composition is solved.

Constitutionality

This model fully complies with the Constitution.

This solution does not require any decision by the Parliament and is relatively easy to implement.

1. Too risky – this requires the good will of 4 people to restrain from their activity for a substantial amount of time; the willingness to engage in such a solution may change;

2. Such restraint of the judges may be found as ‘gross or systematic neglect to fulfill their duties’ by their colleagues which is a constitutional ground for dismissal of a judge by ⅔ majority of the CCU; this may further disincentivize the judges to engage.

Currently, the CCU is considering a number of submissions regarding the constitutionality of key reforms (the High Anti-Corruption Court, the Land Reform, and the Banking Reform). There is a high risk that the CCU may adopt a similar decision as it adopted regarding the e-declarations. To prevent this, the Parliament could amend the provisions of the laws on reforms whose constitutionality is in question.

The changes should not change the substance of the reforms; just merely the text of the provisions. This would prevent the CCU from ruling these laws / key provisions unconstitutional as the CCU cannot review the constitutionality of the provisions which were amended.

Constitutionality

This model fully complies with the Constitution. This model has worked many times before; most recently, the Government amended its decree on the quarantine restrictions in view of the upcoming CCU’s decision on their unconstitutionality. The CCU had no other option, but to close the proceedings.

This model is constitutional and will prevent the CCU from reversing the key reforms.

1. Amending the laws on key reforms will require consolidation in the Parliament; some political factions may use this opportunity to amend the substance of the reforms;
2. Political forces which initiated the original constitutional submissions will be able to submit new ones regarding the renewed laws.

The Law on the CCU allows the participants of the constitutional proceedings to request clarifications on the implementation of the decision of the CCU (Article 95). The representative of the Parliament in the CCU can file the respective request.

The CCU can issue such clarifications, in particular regarding the provisions, which were not justified in the decision on the e-declaration system. Such clarifications are considered an inalienable part of the CCU’s decision.

Constitutionality

According to the law, the CCU can clarify the context of its decision. This provision complies with the Constitution.

The CCU can issue clarifications on the provisions of its decision, which were poorly justified and consequently reduce its negative influence by narrowing down the sphere of its implementation (e.g. the matter of the public access to the e-declaration register).

In its clarifications, the CCU can extend the sphere of implementation of its decision (e.g. the matter of the public access to the e-declaration register), which will complicate the elimination of its consequences by the Parliament through the adoption of the respective legislative changes.