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Ukraine’s constitutional court attacks anti-corruption laws

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Nov 14th 2020KYIVIN 2014 UKRAINIANS got so fed up with the grotesque corruption of their political class that they staged a revolution. Since then, reformers have been trying to build institutions to hold the country’s oligarchs and crooked politicians to account. One big victory was establishing an electronic asset-declaration system, an online registry where officials must list all of their main possessions. But on October 27th Ukraine’s constitutional court found a clever way to cripple this system: it struck down the anti-corruption authorities’ power to punish anyone for lying on it.Piquantly, four of the court’s 18 justices were being investigated by those same authorities. After the ruling, Schemes, an investigative news outfit, reported that the chief judge had failed to declare

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IN 2014 UKRAINIANS got so fed up with the grotesque corruption of their political class that they staged a revolution. Since then, reformers have been trying to build institutions to hold the country’s oligarchs and crooked politicians to account. One big victory was establishing an electronic asset-declaration system, an online registry where officials must list all of their main possessions. But on October 27th Ukraine’s constitutional court found a clever way to cripple this system: it struck down the anti-corruption authorities’ power to punish anyone for lying on it.

Piquantly, four of the court’s 18 justices were being investigated by those same authorities. After the ruling, Schemes, an investigative news outfit, reported that the chief judge had failed to declare property he owns in Russian-occupied Crimea, acquired under Russian law, which would imply recognising Russian sovereignty. In his defence, he said he did not know how to file an e-declaration for land in Crimea.

It has been 18 months since Volodymyr Zelensky went from playing Ukraine’s president on television to being elected president in real life. He now faces a test of his pledge to clean up the country. Bit by bit, the country’s top court is dismantling the anti-corruption infrastructure. In August it partially struck down the National Anti-Corruption Bureau of Ukraine (NABU) and ruled that its head had been appointed illegally. The new ruling strips the National Agency on Corruption Prevention (NACP) of much of its power.

Fighting graft is not just a domestic concern. Ukraine’s economic stability is bolstered by a $5bn loan secured in June from the IMF. It stands to get another €1.2bn ($1.4bn) in economic and covid-19 aid from the EU (as well as continuing to enjoy visa-free travel in it). Both organisations make their assistance conditional on fighting corruption. On November 3rd the EU warned that both aid and visa-free travel could be jeopardised. It says it will first wait to see whether Ukraine restores power to the anti-corruption bodies.

Reformers are divided over how to do this. Mr Zelensky, trying to rally popular support after his party did badly in municipal elections last month, has urgently demanded that parliament pass legislation firing all of the constitutional court’s judges. It is not clear that he has the votes. Even if he does, legal experts say the move would itself be unconstitutional. Another proposal is to pass new laws re-establishing the anti-corruption agencies on firmer ground. But activists, who suspect the court of being corrupt and compromised by pro-Russian interests, fear it will find an excuse to strike down those new laws too. In the short term the court has been slowed by four liberal judges who are refusing to attend, denying it a quorum. Some propose raising the quorum requirement, making it easy for a few reformers to block action.

Those who dislike the clean-up efforts may next attack laws that have let dodgy banks (owned by oligarchs) be nationalised, and a new law opening up the land market. The Anti-corruption Action Centre (AntAC), the country’s premier watchdog, says such legal challenges are a stubborn effort to re-establish the sort of kleptocratic order that existed under Viktor Yanukovych, a disgraced ex-president, and to sabotage Ukraine’s turn towards the West. The constitutional court is “the most protected organ in the country,” says Olena Shcherban, AntAC’s chief legal expert. If Mr Zelensky wants to salvage his presidency, he will have to take it on.

This article appeared in the Europe section of the print edition under the headline "Judge not, that ye be not judged"

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