Will e-declaration survive the coming test?

A momentous event is set to occur on December 22, 2016. Today, the Constitutional Court (CC) will examine the e-declaration’s conformity with the Constitution of Ukraine. The petition requesting the court to deem certain provisions of the Law “On E-Declaration” to be unconstitutional was lodged with the CC a year ago, that is, in December 2015, by 48 MPs, mostly erstwhile supporters of ex-president Viktor Yanukovych. These MPs request that the CC deem to be unconstitutional (in other words, abolish) the declarants’ duties to declare property holdings of their family members, their own under-construction properties, valuable personal property items, cash and financial liabilities, and provide information about material changes in the economic status and information about declarable items that belong to others, but are used by the declarant or their family. That is, should the court agree, government ministers, MPs, and other officeholders will have to declare only their own apartments and mansions, companies they own and funds they have in bank accounts.

In addition, the MPs ask the court to forbid the National Agency for the Prevention of Corruption from using registers and information databases to verify declarations, checking the accuracy of the declared assets’ valuations when verifying declarations in full, and using mass media and other information sources when monitoring the declarants’ lifestyles on citizens’ requests. Moreover, trying to use this opportunity in full, the MPs request effective closure of free access to the Single State Register of Declarations and abolition of any criminal liability for knowingly making false statements about one’s assets in an e-declaration.

Therefore, this is an attempt, firstly, to effectively destroy what is possibly Ukraine’s only real success in the fight against top-level corruption; and secondly, to give the most odious e-declarants a legal opportunity to further improve their financial position at the expense of the public purse, that is, ordinary impoverished Ukrainians (“Material or moral damages, inflicted on natural or legal persons by the acts or actions deemed to be unconstitutional, are compensated by the State by the procedure established by law” – the Constitution of Ukraine, Art. 152). I have not a slightest doubt that loud claims of “moral damages” and relevant legal actions will be all over the place if the CC rules for the petitioners...

As usual in such cases, one is inclined to ask: who are the justices?

Here the picture is very interesting, because one third of the current crop of constitutional justices appear in a criminal proceeding launched by the Prosecutor General’s Office over the court issuing manifestly unlawful rulings. More generally, it is worth mentioning that the CC was one of the main participants in the coup of October 1, 2010, when it rolled back the political reform of 2004 (under whose provisions it acted for six years itself and did not consider it a violation of the Constitution) and thus granted virtually unlimited powers to Yanukovych. Understandably, one of the first legal acts passed by the Verkhovna Rada in the wake of the Revolution of Dignity was to reinstate the political reform in a vote that attracted a super-majority required for constitutional amendments, but at the same time, they demanded dismissal of the CC justices. While serving as an MP, Petro Poroshenko voted for this demand, but on becoming president, he somehow forgot about it... And so, to this very day, the CC is presided over by Yurii Baulin, that same justice who put his signature on the ruling desired by the then president, despite its absolute unconstitutionality: after all, the right to change the Basic Law belongs exclusively to the Verkhovna Rada and the entire Ukrainian people...

Independent experts maintain that there is no legal grounds to overturn either all provisions of the Law “On E-Declaration” listed in the MPs’ petition or that part of it which seems of most concern to the petitioners (that covering liability for knowingly making false statements). However, there are other reasons for concern, and the most important of them is the personal composition of the CC, which is full of Yanukovych’s henchmen and spineless characters who are ready to issue any ruling whatsoever, provided it is desired by the government of the day. So the question arises: why has the president kept in limbo a significant portion of the CC’s membership, including its chief justice? Why has the action which should have been taken over two years ago not been taken yet? And what surprises are likely when the CC will get to work on the Law “On E-Declaration”? After all, the “victims” of that law (though they have been victimized by falling public support rather than court decisions so far) include figures from the Petro Poroshenko Bloc and senior government ministers and officials...