Ukraine’s president has upped the ante in a stand-off with the country’s constitutional court by ousting two of its judges for being threats to national security, a potentially unconstitutional move that aims to break a months’ long impasse.
Volodymyr Zelensky on Saturday cancelled presidential decrees issued by his predecessor in 2013, that had appointed judges Oleksander Tupytsky, currently the court’s chief, and Oleksander Kasminin.
Analysts said the move was a bid to change the balance of power in a court that had triggered a constitutional crisis last autumn with rulings that threatened to dismantle critical anti-corruption institutions. The rulings, in turn, jeopardised reforms and support from western backers including financing from a $5bn IMF lifeline.
Both ousted judges were appointed under the presidency of pro-Russian president Viktor Yanukovich, who fled to Russia in 2014 after being ousted by the pro-democracy Revolution of Dignity.
“These persons can go on a well-deserved vacation,” Zelensky said in a statement explaining that the decision is part of an audit of “all decrees of President Yanukovich.”
Yanukovich was convicted in 2019 by a Ukrainian court of treason for aiding “an aggressive war” by Russia which occupied the Crimean Peninsula in 2014 and orchestrated a still-smouldering separatist conflict in eastern regions.
Citing Yanukovich’s “usurpation of power in 2010-2014,” Zelensky’s decree said the judges appointed by the former president “pose a threat to state independence and national security.”
There was no immediate comment from the judges or the court.
The move comes months after Zelensky — in another questionably-constitutional decree — suspended Tupytsky from his position as head of the court, citing corruption probes including failure to declare property in Russian occupied Crimea.
Government guards have since refused to allow Tupytsky to enter the court. Its 18-seat panel of judges have struggled to consistently muster a quorum.
Last October, Zelensky called on parliament to disband all of the court’s judges after a majority of them — following appeals by pro-Russian and oligarch allied MPs — issued rulings that threatened to neuter the independence of the National Anti-Corruption Bureau of Ukraine (NABU) and end obligatory public asset declarations by public servants.
Anti-corruption reforms are an overriding condition of Ukraine’s western backers for continued support.
Zelensky’s call for parliament to disband the entire court never came to a vote. MPs have since adopted legislation restoring the declaration system and are considering laws to clarify whether the president or government should appoint the NABU director.
Ukraine’s constitution envisages constitutional court judges who are appointed for nine-year terms being removed by a two-thirds vote of judges on the court in specific cases including health concerns or upon being convicted of a crime. It does not authorise the president to cancel a judge’s appointment.
Ihor Koliushko, head of Kyiv’s Centre of Policy and Legal Reform, said Zelensky’s decree “has no relation to the constitution.”
“This is a revolutionary step which can be understood,” Koliushko said citing Tupytsky’s reputation, corruption allegations against him and controversial rulings made by the court.
“He is certainly not worthy of being a judge and the increasingly anti-state activities of these judges linked to clear-cut pro-Russian vested interests has to be fought somehow,” Koliushko added.
In a Voice of America interview this week, George Kent, US deputy assistant secretary of state for European and Eurasian Affairs, said: “How Ukrainian authorities get out of the constitutional crisis created by the constitutional court . . . is a real challenge.”
He urged authorities to speed up reforms and warned that “any legislation that rolls back the independence” of the NABU “will make it very difficult for international partners” to continue support.