What do you do when your country’s Constitutional Court becomes a threat to national security? How do you reform an institution whose leaders see institutional progress and evolution as something antithetical to their prosperity? This is what Dmytro Kuleba, the Ukrainian Minister of Foreign Affairs, may have asked himself at the National Security and Defense Council meeting on October 29, 2020.

The Constitutional Court of Ukraine (CCU), the highest judicial body ensuring the supremacy of the Constitution of Ukraine, is trying to dismantle the anti-corruption infrastructure that required so much effort for Ukrainians to envisage and implement.

A culture of distrust

Citizens of Ukraine have grown sceptical of the power of the law to protect  the interests of the nation. Trust in the judiciary hit rock-bottom at an astonishing 3% in 2015. The reforms implemented under the Poroshenko administration seemed to ‘boost up’ the rating to around 12%. Given recent events, any ameliorations in the public’s trust of the judiciary seem unrealistic.

The culture of distrust in the judiciary in Ukraine today emerged in the Soviet era. The judiciary did generally handle mundane cases in accordance with the law, but in those cases where powerful interests were at stake, judges manipulated outcomes to serve the interests of the few. The duality of the judicial system is what made Ukrainian citizens so reluctant to trust their institutions. Moreover, their feeling of distrust has been severely aggravated by a group of oligarchs who seek to model the fate of the country as they see fit.

Ukrainian oligarchs made vast fortunes during the transition from a planned economy to a market economy after the independence in 1991 through illegal practices and businesses. Since then, they have painstakingly targeted strategic sectors of the economy, politics, media, and the judiciary in order to maintain themselves in power at the expense of an impoverished country. They have hijacked the state from within, inhibiting any progress and isolating the country, and thus plunging Ukraine into what is known as a situation of ‘state capture’. 

Anti-corruption efforts

The need for the restoration of an effective and democratic system of checks and balances and judicial trustworthiness became an urgent priority in the country following the Euromaidan, a wave of protests in 2014 sparked by the Ukrainian government’s decision to withhold from an association agreement with the European Union. Though Ukraine did not opt for a wholescale reform of the law enforcement system, the government launched large-scale legislative efforts to reform and to strengthen its much-needed independence.

Ukraine implemented several reforms following the events of 2014 that simplified the judiciary into a three-level system of courts. These included dismissing all judges from the previous Supreme Court of Ukraine; reconfiguring protocols around the appointment and dismissal of judges; creating the High Anti-Corruption Court and the High Court on Intellectual Property; and providing civil society the opportunity to directly participate in the selection and assessment of the judiciary.

One of the most welcome measures was, perhaps, the 2015 establishment of an electronic declaration system that obliged officials to openly disclose their assets and caused the voluntary resignation of 2000 judges ‘for reasons of dignity.’ As for the CCU, 5 of the 18 were under investigation for alleged conflicts of interest in their declarations, that is, omissions of undeclared property, interests in the abolition of liability, and other inconsistencies. The pervasiveness of corruption within the court and among Ukrainian oligarchs, however, means this and other anti-corruption measures have proven to be short-lived.

Rolling back reforms

After striking down on the National Anti-Corruption Bureau of Ukraine and stripping the National Agency on Corruption Prevention much of its power, the last straw came on October 23, 2020, when the CCU eliminated the e-declaration system and even canceled penalties for officials who lie in their asset declaration, under the pretext that the measures adopted were ‘unconstitutional.’

The CCU’s attacks on anti-corruption bodies and measures demonstrate that justice is compromised at the highest echelons of power in Ukraine. In fact, the CCU’s actions have imperiled the continuation of the benefits extended to Ukraine in the wake of its constitutional reforms, including the EU aid and visa-free travel policy and IMF insurance. Corruption has reached a grotesque size and magnitude and the results delivered by Ukraine on fighting graft have been nothing but disappointing. Nevertheless, it is not only external assistance that is in jeopardy, but also the very integrity of governance in the country.

As  John Lough and Vladimir Dubrovskiy said, “The system [of Ukraine] is not just corrupt; it runs on corruption.” Its roots are so deeply entrenched and its ramifications have expanded so far and wide within the system administration that even the Constitutional Court, previously a democratic bulwark par excellence, has given way under its pressure.

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President Volodymyr Zelensky faces a titanic challenge. Any realistic attempt to tackle the chronic problem of corruption needs to start with the judiciary. The question is how to remove the cornerstone without toppling the building. Zelensky’s removal of the judiciary could unleash a constitutional crisis that would easily kick him out of office. The future looks grim, at best. Nonetheless, the situation has and will change at some point. It is up to Zelensky to lay the foundation stone of a trustworthy judiciary that can open the way for a thorough reconstruction that liberates the country from its history of distrust in the legal institutions.