Judges of the Constitutional Court of Ukraine in Kiev on April 10, 2007 (from left to right): Viktor Shishkin, Peter Stetsyuk, Dmitry Lilak, and Vladimir Kampo.
Photo: Vladislav Sodel
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Constitutional Anarchy
// Fewer Judges Want to Rule on Yushchenko's Decree
Five judges on the Constitutional Court of Ukraine (KSU) declined en masse yesterday to participate in the legal review of President Viktor Yushchenko's decree dissolving the country's legislature. They explained that their refusal to hear the case was due to the political pressure being brought to bear on them. All of the judges are considered Mr. Yushchenko's loyalists, and in essence their decision plays right into his hands: the convening of the KSU has been put off for another week, while in the meantime preparations for elections are going ahead full force.
Court under Siege
Yesterday the Constitutional Court of Ukraine found itself on the firing line of the political struggle between the supporters and opponents of the dissolution of the Verkhovna Rada, the Ukrainian parliament. Last week 53 deputies from Prime Minister Viktor Yanukovych's "national unity coalition" appealed to the court about President Viktor Yushchenko's decision to dissolve the parliament, and the judges promised last Wednesday that the matter would be reviewed. In taking up the case, the court assumes the mantle of the final arbiter of who will emerge victorious from Ukraine's political crisis: the president or the prime minister and his allies in the Rada. Now that the role of the court has gained new prominence in the matter, the two sides are locked in a struggle for control of this strategically important entity.
Supporters of Mr. Yanukovych were the first to learn where the new epicenter of political decision-making lies, and they made an early attempt to maneuver into a maximally favorable position. Yesterday around 200 people wielding flags representing Mr. Yanukovych's Party of the Regions and carrying posters bearing the slogan "Pressure on the Constitutional Court is a Crime" surrounded the KSU building in Kiev, where they passed the day singing "Arise, huge country" ("Sacred War," one of the most famous Soviet songs associated with WWII) and "A Stork on the Roof" (traditionally, a stork nesting on the roof of a house is considered good luck) with the aid of megaphones. The demonstrators resolved to keep watch near the KSU until Viktor Yushchenko's decree is given an appropriate legal evaluation.
Volunteers from the ranks of the Regionalists were not the only ones on guard yesterday. Ukrainian Deputy Interior Minister Viktor Suslov announced that the police will be stepping up patrols in an effort to prevent scuffles in the streets between supporters of the two camps. "We are in possession of information suggesting that extremist-minded political factions are planning to provoke clashes to disrupt the session of the court and tp cause the president to call a state of national emergency until the court has made its decision," said Mr. Suslov.
The upheaval surrounding the KSU has been a source of particular strain on the nerves of five members of the court. Judges Dmitry Lilak, Vladimir Kampo, Pyotr Stetsyuk, Viktor Shishkin, and Yaroslava Machuzhak called an urgent press conference yesterday to announce that they will not participate in the review of the legality of the president's decree dissolving the parliament. The five judges cited political pressure and requested government protection: "Until we have been assured that all appropriate measures have been taken to ensure that a decision can be made safely, we consider it impossible to participate in the court's review of a matter importance for the people," they said. As a result, the court's acting press secretary, Ivan Avramov, told Kommersant that the hearings have been postponed until April 17.
And Who Are the Judges?
According to Ukrainian law, the membership of the KSU is divided equally between representatives of the legislative, executive, and judicial branches of power. The president appoints six of the judges, as does the parliament and the Ukrainian Council of Judges. Yesterday's self-disqualification by five of the 18 judges is not sufficient to block the court's work, as only 12 judges are needed to constitute a quorum. Nevertheless, it was a worrying sign for Viktor Yanukovych and his allies, who are insisting that the KSU move as quickly as possible to give its evaluation of President Yushchenko's decree. Even though it would not technically halt the court's work on the issue, the judges' continued refusal to discharge their duties could seriously complicate the expeditious review of the appeal filed by the Regionalists against the head of the government.
For Viktor Yushchenko, however, the disruption of the court hearings can only work to his advantage. While the KSU is occupied with the question of the legality of his decree, early parliamentary elections will take place, the results of which will then be unimpeachable. "The fact that the court has not reached a decision does not interfere with the running of a election campaign," explained Nikolay Poludenniy, an advisor to Mr. Yushchenko. "There is no principle that can suspend an effective presidential decree," he told Kommersant.
It appears that the president's circle is counting on precisely this scenario. In any case, all five of the judges who removed themselves from the case yesterday are reputed to be close to Viktor Yushchenko. Messrs. Kampo, Lilak, and Shishkin were appointed to the court by Mr. Yushchenko after he became president, and although Mr. Stetsyuk received his position according to the quota assigned to the Verkhovna Rada, his appointment was sponsored by the pro-presidential faction Our Ukraine. Ms. Machuzhak was chosen by the Council of Judges, but overall the president's administration considers her to be much more of a supporter than an opponent of the president. Kommersant sources in Viktor Yushchenko's circle repeatedly characterized Ms. Machuzhak as a "moderate and decent person" and respectfully called her "a judge with a capital J." With her move yesterday to support those who have no wish to work "in conditions of political pressure," Ms. Machuzhak appears to have proven herself worthy of the high hopes invested in her.
In order to throw a wrench in the court's spokes for good, the proponents of the dissolution of the Rada need to find only two more weak links among the judges, although that will be no simple matter. Among the remaining 13 judges, three – Valery Pshenichniy, Vladimir Ivashchenko, and Syuzanna Stanik – were appointed to fill the presidential quota, but they were all inherited by Mr. Yushchenko from the days of his predecessor Leonid Kuchma's presidency, meaning that their loyalty cannot be counted on. The president's administration does have some hopes for Ms. Stanik, who incidentally has been named the court's official spokeswoman on the matter currently under review. She is considered to be a neutral figure, one who so far has not taken the side either of Viktor Yushchenko or Viktor Yanukovych. Another vacillator is KSU head Ivan Dombrovsky, who has already tried to step down once in the early stages of the review of the decree. According to information obtained by Kommersant, last fall President Yushchenko personally recommended that the judges choose Mr. Dombrovsky to be the court's chairman. Mr. Dombrovsky also sided with the leader of the Orange Revolution in 2004, when the Ukrainian Supreme Court invalidated Viktor Yanukovych's victory in flawed elections.
Thus, if it turns out that the court cannot convene a quorum to review the complaint about the president, the proponents of early elections will have won an important victory. Another means for Viktor Yushchenko to turn the tide in his own favor would be to oblige the court to hold open hearings, as it did in 2004, when Mr. Yushchenko's lawyers relied more on emotional appeals than on concrete proof that the elections were rigged. As a result of the open review of the case, the judges on the Supreme Court were vulnerable to public pressure, particularly from the base of Mr. Yushchenko's supporters in the court's own Kiev backyard. The president's current position is similarly weak from a judicial point of view: his decree makes no mention of the article in the constitution that sets out the conditions for the dissolution of the Rada, but it is amply padded with moral and political bases for such a step, such as the usurpation of power by Viktor Yanukovych's coalition. So if there is indeed an open hearing – and Kommersant's sources suggest that the leaders of the Bloc of Yulia Tymoshenko and the pro-presidential party Out Ukraine are now insisting on it – the president has a shot at winning.
Vladimir Solovyov and Mustafa Naiyem (Kiev)
All the Article in Russian as of Apr. 11, 2007
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