The nation is awaiting the Constitutional Court judgement. Even those totally unversed in politics are looking forward to the verdict. Kyiv residents, for instance, wish it would rid the city of the crowds of “political tourists”, garbage, foul language and stench. Leaders of Ukrainian establishment pin their hopes on it. Both the Cabinet and the Presidential Secretarial would give anything for a decision in their favour or, put more accurately, they do give a lot for potential loyalty. According to our source, privy to the mechanics of the court, both sides use very similar methods in their communications with the CC justices, but one of them has more resources, tougher negotiators and, therefore, more reasons for optimism.

The justices, in turn, hope they would not have to pass any judgement whatsoever.

They have become major news-makers of the day: every third headline, TV or radio report and publication in the press is about the Constitutional Court. We will not describe the latest developments around it but, rather, provide comment and try to analyze the implications.

The presidential decree on the Supreme Rada dissolution and early parliamentary elections has split society and politicians into two irreconcilable camps: one supporting the early elections wholeheartedly, the other rejecting them point blank. Both parties are convinced they are right. At the same time, in both camps there are people who are not quite sure their case is perfectly right. These people wait for the Constitutional Court to dispel their doubts. And in both camps there are people (fortunately, not numerous enough) who would not stop at anything to get their way. They have not resorted to extreme measures because their respective leaders have not sanctioned such measures yet. The leaders are still confident they will be able to obtain a favourable CC ruling, by hook or by crook.

So, both sides count on a positive CC decision, and neither believes the decision would be fair and impartial. Policy-makers in both camps do not rely on the independence of the “gentlemen (and ladies) of the long robe” authorized to interpret the Constitution. Instead, they rely on their teams’ financial capacities, fusses and follies of human nature, and luck.

A lot of bizarre things have been recently going on around the Constitutional Court. The head of state had a strange meeting with the CC justices on the eve of signing the disputable decree. The Prime Minister and Speaker demonstrate a strange familiarity with the contents of deliberations behind the closed door on camera. Chief CC Justice Ivan Dombrovsky made a strange attempt to retire and later, equally strangely, took an unpaid leave of absence. Five CC justices (Dmytro Lilak, Volodymyr Kampo, Petro Stetsiuk, Viktor Shyshkin and Yaroslava Machuzhak) called a strange press-conference announcing they were subject to unprecedented pressure. [Speaker] Olexander Moroz riposted with a strangely harsh comment. Strange rumours started circulating about Deputy Chief CC Justice Valery Pshenychny’s alleged attempt to take over chairmanship and hastily consider the petition against the presidential decree even before Dombrovsky had taken leave. A strange story about tempering with justice-rapporteur Suzanna Stanik appeared on the Internet and was made public by MP Ruslan Kniazevych of the “Our Ukraine” faction.

In view of the above let us ask ourselves: should we be surprised that neither of the belligerent camps expects the Constitutional Court to pass an unbiased, objective, competent and politically unmotivated judgement? Should we be surprised that the overwhelming majority of Ukrainians are no longer appalled with stories about huge sums of cash brought into the justices’ offices and transferred into their accounts as down-payment for future services? Should we be surprised that the media openly discuss whose side – the President’s or the Premier’s – the Constitutional Court at large and each particular justice will take in the case (although the Constitution, special law and their oath explicitly prohibit them to take sides)?

In international practice, constitutional courts exist to act as unengaged arbitrators, to prevent political crises or help the society and political leaders to find legal solutions in times of crisis. In many countries constitutional courts are guarantors of the constitution, which emphasizes their significance for the proper functioning of the state.

With the launch of the political reform it became obvious that the Constitutional Court would have to mediate in the inevitable conflicts between the centres of power. Now it is equally obvious that it will not be able to live up to this role. On several occasions, ZN predicted (based on the legal experts’ opinions) that this panel of CC justices would have to consider the most complicated and controversial cases in the entire history of this institution, and that the Constitutional Court would have difficulty coping with such cases as this panel is the weakest in the entire history of this institution.

The politicians have fallen prey to their own shortsightedness. All of them, irrespective of their colours, would have benefited from having at least one independent body in the country, capable of unprejudiced and qualified decision-making. Yet they opted to delegate there people whose major merit was their personal faithfulness and who were not always skilled enough to write a plausible declaration [part of the judgement]. Having manned the Constitutional Court with obedient vassals, the politicians made the first grave mistake.

Their second mistake was to “sponsor” their men in the Constitutional Court. Most justices, regardless of their personal likes and party allegiances, gladly accepted lavish gifts from both the Presidential Secretariat and the Cabinet. Some partook of the generosity of the largest oppositional force as well. The givers’ munificence soon corrupted the takers. Where the justices’ opinion used to be determined by their party boss’s instruction, it has come to be shaped by the amount of the offered bribe. And now, faced with the need and obligation to seal the fate of the nation, they flounder and try to shirk responsibility.

Having realized they had been investing in air bubbles, the political bonzes failed to conceal irritation in public, which was their third mistake. The leading politicians in both camps censured and disparaged the Constitutional Court so often that their today’s promises to accept any CC decision are not worth a brass farthing. The general public believes in neither their promises nor the fairness of the CC decision. We have no way of knowing when the Court will pronounce its verdict, what it will be like and whether it will ever see the light of day, in the first place. Whatever the verdict, one half of the country will regard it as yet another proof of the justices’ venality, and the other – as evidence of their political idols’ clout. Even if the verdict is truly objective, few will think so.

Having forgone the decency, the politicians debunked the nation’s last myth. For a long time, the public perceived the Constitutional Court as some kind of a mysterious order of knights, a caste of the esoteric,. The decision on President Kuchma’s third tenure marred the attractive image. So today, to the majority of our compatriots the Constitutional Court is no different from adistrict court where one can obtain any decision with one’s money. Well, in fact, people think the Constitutional Court is different in that the money involved here is much bigger. Busting popular myths, the politicians fall into their own trap, since the next myth to explode could be that about the state of Ukraine.

Numerous legal experts concur that constitutional courts in all post-Soviet countries are not totally independent. However, in Russia, for example, for many justices their good name, reputation, and peer respect are values that they will not trade for short-term political benefits.

The situation in Ukraine is much sadder. Analysts maintains that there are very few competent constitutional legal experts in the country. Skeptics argue they will not even make a full panel of the Constitutional Court. Yet those few will probably never get there: political party treasurers and top officials do not want the knowledgeable and the independent; they want the submissive. Can a former bureaucrat with a genetic fear of any boss have an independent opinion? Can a former prosecutor and penitentiary institution officer be authorities in constitutional law if they were raised by the Soviet system to view anybody’s freedom as their professional failure? Can a career judge cherish his reputation if he has climbed the judicial ladder knowing that every next step will bring higher “fees” for “correct” decisions? Can a person with a career and mindset of a procurement manager feel responsible for the nation’s future development? Can people related to powers that be as friends, kindred and business partners be objective?

When a person does not conceal he votes as instructed by the party that nominated him, is financed by the party and works as the party’s vigilante, why should he bother to learn the particulars of jurisprudence? Why should a vigilante need the long robe? He shouldn’t; and therefore he arrives to the court premises in a tracksuit, an appropriate outfit for the Premier’s Donetsk neighbour.

Professional inability to pronounce judgements the nation requires, fear of making decisions and of those who order those decisions have paralyzed the collective saviour of the country. Watching this paralysis with anguish, some politicians suggest the very principles of selecting the CC justices, appointment procedures and justices’ competence should be revised. What should be revised and changed, first of all, is the politicians’ attitude to this institution and the people making it, whatever their names, likes and dislikes.

We blamed the former president and previous Rada convocations for many things, but we should pay homage to them for appointing professional CC justices. Neither the incumbent “multicoloured” coalition, nor their “orange” opponents are interested in such conventionalities. Their attitude to judges is similar to that of the former administration.

Rumour has it that Viktor Medvedchuk, former Head of President Kuchma’s Administration, summoned the CC justices to his office and gave recommendations. Compared to that practice, Yushchenko’s recent public meeting with the Court members is an innocent prank. Could one qualify it as bringing pressure to bear on the Court? One could if one wanted to. Yet one could only guess what the pressure is like behind the closed doors, without limelight, cameras and Dictaphones. Once I heard about the party thrown to celebrate Yanukovych’s first appointment to the prime ministerial office. Invited were, among others, several CC justices. Viktor Yanukovych, reportedly, called the Chief Justice by his first name and asked him a “harmless” question: “We will cooperate, won’t we?” Can this be qualified as administrative pressure?

Fortunately, yours truly was not invited to the party and could not hear the question with his own ears. Yet I have the right to believe in this story, and I do believe in it. For one thing, it is fully consistent with its main characters’ mode of conduct. For another, the justices allow the politicians to treat them like that. Are the justices operating under duress? Are they being placed under pressure? Perhaps, they are. However, it is their fault: they let it happen by turning up to Medvedchuk’s briefings, Yanukovych’s parties and Baloha’s interviews; by vowing fidelity and promising to help; by begging for apartments, summer cottages, cars, construction materials and money for renovations; by bearing with the politicians’ indecent offers and suggestive questions.

I also believe that the five CC justices mentioned above did not volunteer to make their statement. It was orchestrated by people having little to do with the constitutional law and having no lawful right to interfere with the Constitutional Court. It does not mean that these justices were insincere but I do not think it was their free choice. Some of them, probably, could not say “no” to the President or Head of his Secretariat. Others secured themselves hoping it will help them in the future. Others still dreamt of their day of glory. Presumably, at least two of them were certain they did their civic duty, but never thought they were ripping up the arbitrator of the split country. It is true, the Constitutional Court had not been a united body before that episode. Perhaps, it would never become one due to the other party’s effort. Now we know for sure it will not. Masterminds behind this PR ploy should realize what responsibility they have shouldered but they do not seem to. To them, the Constitutional Court is an instrument of fighting for power. The rest is sentimental nonsense.

The politicians have no time to waste on sentiments. They are preoccupied with arithmetic: they multiply rates, add insult to their opponents’ injury and divide the society into allies and foes. They calculate their chances: nine CC justices are “blue”, five are “orange”, and four are undecided. They cannot admit that some justices could have their own opinion and firm beliefs unaffected by threats, promises or appeals. The politicians worry over the reports that three CC justices are unwell, viewing it as an element of the intrigue rather than a plain fact that justices are human beings and their hearts could fail them.

People in the street tend to doubt the integrity of the CC judges as well. According to the recent survey of 2,041 respondents held on 29March – 3 April by Kyiv Institute for Sociology (error being under 2.8%), half of Ukrainians do not think the Constitutional Court is capable of rendering an objective judgement. Only 10% trust the Court and as few as 12% of the surveyed consider the CC justices to be honest people. The poll outcomes look like a “guilty” verdict not only to the Court but also to the politicians who created it in their own image.

Serhiy RAKHMANIN
Photo by Vasyl ARTIUSHENKO