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Political Points for 5 – 12 September 2019

12.09.2019

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua

Draft law “On Amending Article 106 of the Constitution of Ukraine (on establishing the powers of the President of Ukraine to create independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine and the Director of the State Bureau of Investigation)” No. 1014

1.   CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada the draft Law No. 1014 “On Amending Article 106 of the Constitution of Ukraine (on establishing the powers of the President of Ukraine to create independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine and the Director of the State Bureau of Investigation). The draft law was determined to be urgent.

According to the Explanatory Note, the President is empowered to:

  •  create the NABU;
  •  appoint and dismiss the directors of the NABU and the SBI;
  •  create independent regulators, which carry out state regulation, monitoring and control over the activity of economic entities in certain areas as well as to appoint to positions and dismiss their members in the manner determined by the laws of Ukraine.

According to the President of Ukraine, these provisions are necessary to ensure real delegation of the powers to the President in order to guarantee state sovereignty, territorial integrity of Ukraine, observance of the Constitution of Ukraine, rights and freedoms of man and citizen. In addition, in the President’s opinion, such constitutional changes are aimed at optimizing the powers of the head of the state.

However, the activities of the NABU, the SBI and independent regulators are not aimed directly at guaranteeing state sovereignty, territorial integrity of Ukraine, observance of the Constitution of Ukraine, rights and freedoms of man and citizen. Article 116, paragraph 7, of the Constitution of Ukraine refers to the powers of the Cabinet of Ministers to implement measures to ensure the defense capability and national security of Ukraine, public order, and fight against crime. The National Anti-Corruption Bureau is charged with preventing, detecting, terminating, investigating and exposing corruption offenses attributable to its jurisdiction, as well as preventing the commission of new ones. Therefore, given the functions entrusted to the NABU, this body should belong to the executive branch of power and appointments of the NABU Director and his/her dismissal should be made by the Cabinet of Ministers based on the results of the competitive selection. The above considerations regarding the NABU are also relevant to the State Bureau of Investigation (hereinafter referred to as the SBI). The situation with this body is even less clear, since the Law “On the State Bureau of Investigation” explicitly states that the SBI is the central body of executive power. Therefore, it is unclear why the President and not the Cabinet of Ministers as the highest executive body in Ukraine should appoint and dismiss the Director of the SBI. For more details, see the Conclusion.

Additionally, empowerment of the President to create independent regulators that carry out state regulation, monitoring and control over the activities of economic entities in certain areas as well as appointing and dismissing their members in the manner prescribed by the laws of Ukraine, does not correspond to the status of the President under the current Constitution of Ukraine and is unclear because the above powers are introducing a new type of state bodies – “independent regulators that carry out state regulation, monitoring and control over the activities of economic entities in certain areas”. Exercise by these bodies of a control (not supervision) function draws attention, as this is inherent only in direct subordination cases.

2. Respective authorities counter-point/argument

None, since this constitutional initiative was prepared in a closed manner, without any discussions. The only clarification can be found in the explanatory note to the draft law and is about optimization of the powers of the President.

3. CPLR assessment of the authorities counter-point

Draft law No. 1013 proposes to amend Article 106 of the Constitution of Ukraine by extending the powers of the President of Ukraine in the area of internal policy.

In accordance with Article 102 of the Constitution of Ukraine, the competence of the President of Ukraine is limited to the issues of foreign policy and security and defense. In order to exercise the powers to guarantee the observance of the Constitution of Ukraine, the rights and freedoms of man and citizen, the President has the powers envisaged by the Constitution of Ukraine to veto laws passed by Parliament, the right of legislative initiative and the right to submit a constitutional petition to the Constitutional Court. Therefore, the statement about the need to “create a real delegation of powers to the President to guarantee state sovereignty, territorial integrity of Ukraine, observance of the Constitution of Ukraine, rights and freedoms of man and citizen” is manipulative. In this case, it is a significant extension of the powers of the President, which, in combination with other constitutional amendments proposed by the President, will substantially strengthen the role of the head of state at the constitutional level and transform Ukraine into a presidential-parliamentary republic.

It is important to note that these constitutional changes are not aimed at optimizing the powers of the President, as he emphasizes. It is purely about unreasonable concentration of power.

Secondly, it is about the legalization at the constitutional level of previous unconstitutional practices (although established by the laws), which have constantly led to imbalances in the system of the state mechanism. Taking into account that the President’s proposals for amending the Constitution of Ukraine are not systematic, the probability of exacerbating such an imbalance is significantly increasing.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”, the Law of Ukraine “On the State Bureau of Investigation”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Before considering this draft law, it is necessary to hold wide discussions with representatives of the expert community. In our opinion, establishing such powers at the level of the Constitution of Ukraine is one of the steps of Ukraine’s transformation into a de jure presidential-parliamentary republic and a significant increase in the powers of the President, which has strategically negative consequences.

Under the conditions of the parliamentary-presidential form of governance, the powers (which are the subject of draft Law No. 1014) should be assigned to the competence of the Government. In general, the issues of implementation by the Parliament, the President and the Government of their personnel powers should be reflected in the form of complex amendments to Sections IV, V and VI of the Constitution of Ukraine.

Draft law “On Amending Article 93 of the Constitution of Ukraine (on the Legislative Initiative of the People)” No. 1015

1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada the draft Law No. 1015 “On Amending Article 93 of the Constitution of Ukraine (on the legislative initiative of the people). The draft law was determined to be urgent.

On September 3, the draft law was sent to the Constitutional Court for review in terms of its compliance with Articles 157, 158 of the Constitution of Ukraine, as required by the constitutional procedure for amending the Constitution. Draft law No. 1015 proposes to grant the right of legislative initiative to the people and to foresee that this right shall be implemented by the people in the cases and under the procedure determined by the Constitution of Ukraine and the laws of Ukraine. It is also envisaged that this law will be adopted in accordance with the requirements of the legislative procedure established by the Constitution of Ukraine and the laws of Ukraine. ”

2. Respective authorities counter-point/argument

According to the Explanatory Note, in the President’s opinion, adding the people as an entity to the list of subjects of a legislative initiative is necessary because the people are not able to exercise the right of a legislative initiative. No details of the procedure for exercising this right on the constitutional level are provided.

In addition, it is proposed to supplement the Constitution of Ukraine with a basic norm on the legislative procedure according to which the law shall be adopted in accordance with the requirements of the legislative procedure defined by the Constitution of Ukraine and the laws of Ukraine.

Moreover, according to the President, expanding the list of subjects of legislative initiative will allow to provide an effective mechanism of legislative initiative in Ukraine.

3. CPLR assessment of the authorities counter-point

First, expanding of the list of subjects of a legislative initiative, in terms of formal logic, is not capable of ensuring the effectiveness of the mechanism. Theoretically, giving the right of legislative initiative, in parallel with the implementation of a set of other measures, can enhance the role of citizens in the decision-making process, but certainly does not make the institution of legislative initiative more effective. In this case, supplementing the list of subjects of the right to legislative initiative with a new subject “the people of Ukraine” without detail, means that this term is just a declaration and makes it impossible to exercise this right.

At the same time, in order to enhance the role of citizens in decision-making, the necessary elements of participatory democracy (petitions, public debates, etc.) have been already foreseen.

We believe that in the conditions of representative democracy in Ukraine, the existence of the people’s right of legislative initiative is not necessary, since the People’s Deputies and the President hold this delegated right (as subjects having direct electoral mandate) as well as the Cabinet of Ministers. Therefore, the necessity of delegating this right to the people is doubtful. Again, this is because of the representative democracy itself and the lack of proposals for legislative regulation of the people’s legislative initiative.

Amendments to part 1 of Article 93, according to which the right of legislative initiative “is exercised by the subjects of legislative initiative in the cases and under the procedure determined by the Constitution of Ukraine and the laws of Ukraine”, in the context of draft laws No. 1040 and No. 1043, is considered as an opportunity to actually establish a subject of the legislative initiative at the level of law. The proposed amendments to the Rules of Procedure stipulate that the right of legislative initiative in the Verkhovna Rada belongs to the President of Ukraine, the People’s Deputies in a number not less than the number of the smallest parliamentary faction (group) registered at the first session of the Verkhovna Rada in accordance with this Rules of Procedure, or a majority of the committee of the Verkhovna Rada,  and the Cabinet of Ministers of Ukraine. Additionally, draft law No. 1043 proposes that at least 150 people’s deputies may propose that the Verkhovna Rada consider amendments adopted by the profile committee when preparing the draft Law for the second reading. The possibility of identifying the subject of a legislative initiative at the level of the law poses risks of deprivation of the right of legislative initiative, in particular, for the opposition, given that the number of people’s deputies required to register a draft law is set by the majority of the Verkhovna Rada and can be changed at any time to block the activity of opposition factions.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Before considering this draft law, it is necessary to hold broad discussions with representatives of the expert community. Amendments to the Constitution require an open process of discussion and a mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed by the Legal Reform Commission, recently created for this purpose by the President of Ukraine. Thus, the priority areas of work of the Legal Reform Commission, among other things, include preparation and submission to the President of Ukraine of proposals on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of man and citizen, further development of legislation on the organization of the judiciary and the administration of justice, improvement of the legislation on criminal liability and criminal procedural legislation of Ukraine.

Draft law “On Amending Articles 85 and 101 of the Constitution of Ukraine (concerning the Commissioners of the Verkhovna Rada of Ukraine)” No. 1016

1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada the draft law No. 1016 on Amending Articles 85 and 101 of the Constitution of Ukraine (concerning the Commissioners of the Verkhovna Rada of Ukraine). The draft law was determined to be urgent.

Draft law No. 1016 stipulates that in order to exercise parliamentary control over the observance of the Constitution of Ukraine and laws in certain areas, the Verkhovna Rada is empowered to appoint and dismiss Commissioners of the Verkhovna Rada of Ukraine, whose legal status shall be determined by separate laws. This draft was sent to the Constitutional Court to obtain the Opinion on the conformity of Articles 157 and 158 with the Constitution of Ukraine.

In practical activity of the higher state bodies, there have already been cases of introducing commissioner positions in certain areas: at the President – Commissioner of the President of Ukraine for Children’s Rights, Commissioner of the President of Ukraine for Rehabilitation of War Veterans and others, at the Cabinet of Ministers – Council of Business Ombudsman.

In general, introduction of a unified system for monitoring the observance of the constitutional rights and freedoms of man and citizen by the institutions under the control and subordination of the Parliament, is a positive initiative. However, the proposed provisions of the draft law No. 1016 raise a number of concerns:

2. Respective authorities counter-point/argument

According to the Explanatory Note, in order to create an efficient and effective mechanism of parliamentary control over the observance of human rights and freedoms of citizens of Ukraine, a new power of the Verkhovna Rada is provided for the appointment and dismissal of the Commissioners of the Verkhovna Rada of Ukraine on the observance of the Constitution of Ukraine and laws in certain areas, whose legal status is determined by separate laws.

3. CPLR assessment of the authorities counter-point

In accordance with Article 101, parliamentary control over the observance of constitutional rights and freedoms of man and citizen is exercised by the Commissioner of the Verkhovna Rada of Ukraine for Human Rights. The draft law retains the institute of the Parliamentary Commissioner for Human Rights and proposes to create another Commissioner for the same purpose, which is inappropriate and illogical. Moreover, this will lead to the institutional conflicts between the Commissioners.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Commissioner of the Verkhovna Rada of Ukraine for Human Rights”, Law of Ukraine “On Rules of Procedure of the Verkhovna Rada of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Before considering this draft law, it is necessary to hold broad discussions with representatives of the expert community. Amendments to the Constitution require an open process of discussion and a mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed by the Legal Reform Commission, recently created for this purpose by the President of Ukraine. Thus, the priority areas of work of the Legal Reform Commission, among other things, include preparation and submission to the President of Ukraine of proposals on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of man and citizen, further development of legislation on the organization of the judiciary and the administration of justice, improvement of the legislation on criminal liability and criminal procedural legislation of Ukraine.

Draft law “On Amending Articles 76 and 77 of the Constitution of Ukraine (concerning reduction of the constitutional composition of the Verkhovna Rada of Ukraine and establishment of the proportional electoral system)” No. 1017

1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada the draft Law No. 1017 on Amending Articles 76 and 77 of the Constitution of Ukraine (concerning reduction of the constitutional composition of the Verkhovna Rada of Ukraine and establishment of the proportional electoral system). The draft law was determined to be urgent.

According to the Explanatory Note, in order to optimize the general principles of the Parliament’s status, the following proposals have been drafted:

1) to reduce the number of the people’s deputies of Ukraine to three hundred;

2) to delete from the text of Article 76 of the Constitution of Ukraine the principles of universal, equal and direct voting right by secret ballot, since there is a duplication of Article 71 of the Constitution of Ukraine;

3) to introduce a new electoral qualification for the people’s deputies of Ukraine – knowledge of the state language;

4) to enshrine the proportional electoral system in the parliamentary elections at the Constitution level.

On September 3, the Parliament submitted the draft law to the Constitutional Court of Ukraine for reviewing its compliance with Articles 157, 158 of the Constitution of Ukraine.

2. Respective authorities counter-point/argument

None.

3. CPLR assessment of the authorities counter-point

Firstly, it should be noted that the objective reasons for the need to reduce the number of people’s deputies of Ukraine are not clear today. The argument about improving the parliament’s effectiveness by reducing the number of deputies is not true, since the number of deputies and parliamentary effectiveness are different categories of phenomena. Parliament’s effectiveness is determined by the level of political and legal culture, as well as the quality of parliamentary procedures, and not by the quantitative composition of Parliament.

Secondly, in the world practice there is no single formula for the determination of proportions of representation of citizens or voters by one MP. Therefore, the reference to the reduction of the real number of population of Ukraine, especially without holding a census, is inappropriate.

In addition, it is worth noting that along with the proposal to reduce the constitutional composition of the Parliament to 300 members, there is no adjustments of the right of the people’s deputies of Ukraine to apply to the Constitutional Court of Ukraine. In particular, at least 45 parliamentarians (10%) are subject to constitutional representation today, having the constitutional composition of 450 deputies of Ukraine. In the case of proposed constitutional changes, their proportion will be 15% (at least 45 out of 300 people’s deputies of Ukraine), which complicates the access of people’s deputies to the constitutional judiciary.

The initiative to introduce electoral qualification for the people’s deputies of Ukraine seems quite logical given the status of a people’s deputy as a representative of the People of Ukraine and the provisions of part 3 of Article 2 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, which stipulate that the working language of the Verkhovna Rada, its bodies and officials is the national language. Making such constitutional changes will require revision of the relevant provisions of the Laws of Ukraine “On the Election of People’s Deputies of Ukraine”, “On the Status of a People’s Deputy of Ukraine”, and “On the Operation of the Ukrainian Language as a State Language”. It is of utmost importance to establish a clear procedure for assessing the compliance of candidates for deputies with the requirement of proficiency in the state language and clear criteria for assessing such proficiency.

Establishing a single electoral system at the Constitution level is a disputable issue that must be considered through the lens of the President’s legislative proposals in the context of the regulation of elections and the activities of political parties. It is also worth bearing in mind that in recent years, the society has been discussing a proportional system with preferences (the so-called open lists).

The wording of paragraph 17 of Section XV “Transitional Provisions” of the Constitution of Ukraine provides that after the entry into force of the draft Law No. 1017, the Verkhovna Rada of Ukraine, elected before the entry into force of the said Law, shall continue to exercise its powers until the next election of the people’s deputies of Ukraine. Such a wording does not comply with the provisions of Article 81 of the Constitution of Ukraine, which stipulates that the powers of a people’s deputy shall be terminated on the day of the first session of the Verkhovna Rada of the new convocation. The proposed wording carries the risks of the existence of a state without Parliament, which violates the rights of citizens and does not comply with the principle of continuity of activity of the legislative body.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Commissioner of the Verkhovna Rada of Ukraine for Human Rights”, Law of Ukraine “On Elections of People’s Deputies of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Before considering this draft law and its preliminary approval, it is necessary to hold broad discussions with representatives of the expert community and lawyers. It is advisable to submit this draft law for consideration of the Venice Commission. Amendments to the Constitution require an open process of discussion and a mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed by the Legal Reform Commission, recently created for this purpose by the President of Ukraine. Thus, the priority areas of work of the Legal Reform Commission, among other things, include preparation and submission to the President of Ukraine of proposals on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of man and citizen, further development of legislation on the organization of the judiciary and the administration of justice, improvement of the legislation on criminal liability and criminal procedural legislation of Ukraine.

The fact of submission by the President of 6 other separate draft laws on amending the Constitution also draws attention. Based on the understanding of the Constitution as a comprehensive constituent agreement as well as the stability of constitutional matter, the possibility of consolidation of the constitutional process of amending the Constitution should be considered.

Draft law “Оn Amending Article 81 of the Constitution of Ukraine (concerning additional grounds for early termination of powers of a People's Deputy of Ukraine)” No. 1027

1. CPLR expert opinion

On August 29, the President of Ukraine registered in the Verkhovna Rada the draft law No. 1027 on Amending Article 81 of the Constitution of Ukraine (concerning additional grounds for early termination of the powers of a People’s Deputy of Ukraine). The draft law was determined to be urgent.

According to the Explanatory Note, the draft law No. 1027 provides for changes in the grounds and certain elements of the mechanism for early termination of powers of the People’s Deputies of Ukraine.

In particular, it determines that in case of stepping down from office by personal statement, the powers of the People’s Deputy of Ukraine shall be terminated from the moment of announcement of such statement by the People’s Deputy of Ukraine at the plenary session of the Verkhovna Rada of Ukraine.

The main novelty is the introduction of additional grounds for early termination of powers of a People’s Deputy of Ukraine:

1) announcement of a person deceased;

2) establishment by the court of the fact of non-personal voting by the People’s Deputy of Ukraine in the Verkhovna Rada of Ukraine, i.e. voting by a People’s Deputy of Ukraine instead of another People’s Deputy of Ukraine or giving by a People’s Deputy of Ukraine of an opportunity to another People’s Deputy of Ukraine to vote for him/her  – from the entry into force of a court decision establishing such a fact;

3) his/her absence without valid reasons at one-third of plenary sessions of the Verkhovna Rada of Ukraine and/or meetings of the Verkhovna Rada Committee of which he/she is a member during one regular session.

In addition, the mechanism for early termination of the powers of a People’s Deputy of Ukraine for these reasons is defined. It suggests introducing the following provisions:

a) in case of non-fulfillment of the requirement on incompatibility of the deputy’s mandate with other activities, absence of a People’s Deputy of Ukraine without valid reasons at one-third of plenary sessions of the Verkhovna Rada of Ukraine, and/or meetings of the Verkhovna Rada Committee of which he/she is a member during one regular session, the powers of the People’s Deputy of Ukraine shall be terminated prematurely by decision of the Supreme Court;

b) in case of death of the People’s Deputy of Ukraine, his/her powers shall be terminated from the day of death, certified by the death certificate, without the decision of the Verkhovna Rada of Ukraine;

c) in case of announcement of the People’s Deputy of Ukraine deceased, his/her powers shall be terminated from the date of entry into force of the relevant court decision.

In our opinion, the proposed option of combating the so-called “piano voting” and improper performance of duties by the people’s deputies poses risks of pressure on parliamentarians and weakens the status of a people’s deputy. We would like to point attention to the contradiction of the wording “giving by a people’s deputy of Ukraine of an opportunity to another people’s deputy of Ukraine to vote instead of him/her”. Such a wording potentially makes it possible to artificially deprive a people’s deputy of his or her mandate or to exert pressure on people’s deputies by opening cases on deprivation of mandate. Given the lack of an independent judicial system in Ukraine, we see the risks of reprisal against opposition people’s deputies on these new grounds.

The proposed amendments do not abolish the so-called imperative mandate that the Venice Commission has repeatedly recommended for Ukraine. Instead, the draft law No. 1038 proposes to extend it.

Inacceptable practice of the existence of citizenship of another country is also overlooked.  In our opinion, if the introduction of additional grounds for deprivation of the mandate is considered, it should be holding of citizenship of another country by the People’s Deputy of Ukraine.

2. Respective authorities counter-point/argument

By depriving the people’s deputies of their mandate, it is possible to effectively combat such negative phenomena of Ukrainian parliamentarism as non-personal voting and failure to fulfill the duties of the people’s deputy.

3. CPLR assessment of the authorities counter-point

Today, effective combating with non-personal voting is enabled by new technologies, and it is not necessary to change the Constitution, which already sets the rule for personal voting. The Constitution also makes it possible through the Constitutional Court of Ukraine to declare unconstitutional the laws for which the people’s deputies did not vote personally. It is advisable to strengthen the independence of the Constitutional Court of Ukraine and to promote the practice of declaring unconstitutional of the laws, for which the people’s deputies do not vote in person.

Regarding the absence of people’s deputies in plenary sessions, it is worth considering changes to the procedure for passing laws, namely to vote by a majority of the present people’s deputies, not of the constitutional composition. Such a procedure for passing laws naturally encourages parliamentarians to attend the meetings.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, the Law of Ukraine “On the Status of the People’s Deputy of Ukraine”, the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, the Code of Administrative Procedure of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Before considering and potential prior approval of this draft law, it is necessary to hold wide discussions with representatives of the expert community. Amendments to the Constitution require an open discussion process and mandatory dialogue with civil society. It is also not clear why the constitutional changes have not been discussed by the Legal Reform Commission, recently created for this purpose by the President of Ukraine. Thus, the priority areas of work of the Legal Reform Commission, among other things, include preparation and submission to the President of Ukraine of proposals on amendments to the Constitution of Ukraine and laws of Ukraine aimed at ensuring the implementation of constitutional norms and principles, namely, the priority of protection of fundamental rights and freedoms of man and citizen, further development of legislation on the organization of the judiciary and the administration of justice, improvement of the legislation on criminal liability and criminal procedural legislation of Ukraine.

The fact of submission by the President of 6 other separate draft laws on amending the Constitution also draws attention. Based on the understanding of the Constitution as a comprehensive constituent agreement as well as the stability of constitutional matter, the possibility of consolidation of the constitutional process of amending the Constitution should be considered.

Draft law "On Amending the Law of Ukraine "On the Status of the People's Deputy of Ukraine" (concerning bringing the Law of Ukraine "On the Status of the People's Deputy of Ukraine" in accordance with the Constitution of Ukraine)” No. 1038

1. CPLR expert opinion

On August 29, a group of people’s deputies from “Sluha Narodu” faction registered in the Verkhovna Rada of Ukraine the draft Law No.1038 “On Amending the Law of Ukraine “On the Status of the People’s Deputy of Ukraine” (concerning bringing the Law of Ukraine “On the Status of the People’s Deputy of Ukraine” in accordance with the Constitution of Ukraine)”.

According to the Explanatory Note, the draft law aims to improve the legal regulation of the issue of joining by the people’s deputies of Ukraine, elected by political parties, to the deputies’ factions of these political parties.

2. Respective authorities counter-point/argument

Unfortunately, the Explanatory Note does not provide any motivation for the main provisions of the draft Law.

3. CPLR assessment of the authorities counter-point

Draft Law No.1038 provides for supplementing Article 5 of the Law of Ukraine “On the Status of the People’s Deputy of Ukraine” with part four of the following wording: “If a people’s deputy does not join the deputy faction of a political party, on the lists of which he/she was elected people’s deputy of Ukraine in a nationwide multi-mandate constituency, or which was subject of his/her nomination in a single-mandate constituency, or terminates his/her membership in such a faction, his/her powers shall be terminated from the moment of the decision of the highest governing body of the relevant political party in the manner prescribed by the statute of the political party.”

Article 81 of the Constitution of Ukraine provides for such a ground for early termination of the powers of a people’s deputy elected by a political party as non-joining or leaving the relevant faction. As a matter of principle, attention should be drawn to the fact that non-joining or leaving the faction depends on the will of a people’s deputy of Ukraine him/herself. Instead, draft law No. 1038 allows the termination of the powers of a deputy by decision of the governing body of a political party of the relevant faction, which is not dependent on the will of a people’s deputy. In fact, this sets a full imperative mandate.

In view of the interpretation by the Constitutional Court of Ukraine of the concepts of “non-joining” and “leaving” the parliamentary faction, set out in the Decision of the CCU No. 12-rp/2008 of June 28, 2008, such actions require a respective will of the people’s deputy and cannot be implemented without his/her consent, for example, solely by decision of the governing body of a political party of the relevant faction.

In addition, the Constitutional Court of Ukraine in its Decision No. 3-r/2017 of December 21, 2017 (the Case on Party Dictatorship) formed a legal position, according to which the possibility of excluding the candidates for deputies of Ukraine from the election list of the party after voting and establishing the results of elections of the people’s deputies of Ukraine, contradicts the essence of democratic elections and the constitutional right of Ukrainian citizens to freely elect and be elected to state and local self-government bodies.

In accordance with paragraph 9 of the Resolution 1549 (2007) of the Council of Europe Parliamentary Assembly on the Functioning of Democratic Institutions in Ukraine, adopted on April 19, 2007, the recall of parliament members by political parties (“imperative mandate”) is unacceptable in a democratic state. The same provisions can be found in a number of other PACE documents.

In particular, the Main Scientific and Expert Directorate of the Verkhovna Rada’s Apparatus draws attention to these problems in its Conclusion on the draft Law “On Amending the Law of Ukraine “On the Status of the People’s Deputy of Ukraine” (concerning bringing the Law of Ukraine “On the Status of the People’s Deputy of Ukraine” in accordance with the Constitution of Ukraine)” registration No.1038 dated 29.08.2019, stating that such provisions are not consistent with the provisions of paragraph 7 of the first and sixth parts of Article 81 of the Constitution of Ukraine.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Laws of Ukraine “On the Status of the People’s Deputy of Ukraine”, “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, “On the Election of the People’s Deputies of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

This draft law regarding the early termination of powers of a people’s deputy because of termination of membership in the faction by the decision of the top party leadership is unconstitutional, since it does not correspond to part two of Article 8, part one of Article 38 and part two of Article 81 of the Constitution of Ukraine.

Parliament should not support the establishment of an unconstitutional imperative mandate of the People’s Deputy of Ukraine.

 

Draft law "On Amending the Rules of Procedure of the Verkhovna Rada of Ukraine as regards Countering the Abuse of People's Deputies during the Legislative Procedure" No. 1043

1. CPLR expert opinion

On August 29, a group of people’s deputies from the “Sluha Narodu” faction registered in the Verkhovna Rada of Ukraine the draft Law “On Amending the Rules of Procedure of the Verkhovna Rada of Ukraine as regards Countering the Abuse of People’s Deputies during the Legislative Procedure” No.1043.

According to the Explanatory Note, the draft law was prepared to improve the legislative process in Ukraine, since the existing problems reduce the effectiveness of regulation of public relations.

2. Respective authorities counter-point/argument

According to the Explanaroty Note, the draft law proposes that at least 150 deputies, the President of Ukraine or the Cabinet of Ministers of Ukraine may submit a draft resolution of the Verkhovna Rada on the abolition of the Verkhovna Rada’s decision to adopt a law, a resolution or another act of the Verkhovna Rada in general. In addition, only the procedural decisions of the Verkhovna Rada (150 votes) can initiate the discussion of the proposal considered or not considered by the main committee, amendments with subsequent voting on its approval, exclusion in whole or in part.

3. CPLR assessment of the authorities counter-point

In general, the idea of improving the right of legislative initiative for the effectiveness of Parliament’s work is positive. However, this concept should be implemented in the light of the proportionality principle and should not violate the rights of the opposition in Parliament.

This legislative proposal should be evaluated in conjunction with other legislative and constitutional proposals of the parliamentary majority and the President.

The Draft Law on Amending the Constitution of Ukraine No.1015 incorporates the provision according to which the law shall be adopted in accordance with the requirements of the legislative procedure defined by the Constitution of Ukraine and the laws of Ukraine. Another draft Law No.1040 contains a provision under which the right of legislative initiative in the Verkhovna Rada is vested in people’s deputies in a number not less than the number of the smallest faction (group) registered at the first session of the Verkhovna Rada or the majority of the approved Verkhovna Rada committee membership. These proposals, in fact, establish the subject of legislative initiative at the level of law, which is negative and questionable in terms of constitutionality.

First, such an approach is risky given that the number of people’s deputies required to register a draft law is set by the majority of the Verkhovna Rada and can be changed at any time to block the activities of opposition factions.

Secondly, if the draft laws No. 1015, 1040 and 1043 are approved, we will get the following negative situation:

  •  20 (as of 11.09.2019) deputies or a majority of a certain committee may initiate a draft law;
  •  the Sluha Narodu faction has a majority in the committees, which will allow the rejection of amendments by other factions;
  •  150 deputies can initiate discussion of the rejected amendment in the plenary room of the Verkhovna Rada;
  •  150 deputies can initiate cancellation of an already voted act of the Verkhovna Rada.

Taking into account that the opposition (as of 11.09.2019) has 171 members belonging to different factions (the political parties that created these factions are sometimes antagonists), and includes 34 non-factional deputies, the possibility of influence on the lawmaking process by opposition forces is nullified. Moreover, opposition deputies will be deprived of the opportunity to even speak at plenary meetings on their proposed amendments and proposals.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

This draft law needs revision in terms of reducing the minimum number of deputies who can submit a draft resolution of the Verkhovna Rada to cancel the decision of the Verkhovna Rada on the adoption of a law, a resolution or other act of the Verkhovna Rada as a whole, and to reject the proposal to prevent the speeches of deputies, who insist on holding a discussion on a proposal or an amendment, which was considered or not considered by the main committee, followed by a vote on its approval, exclusion in whole or in part.

Draft law No. 1067

1. CPLR expert opinion

On August 29 of this year, the draft law No. 1067 was registered in the Verkhovna Rada of Ukraine. The authors of the draft law were people’s deputies from the ruling faction “Sluha Narody”, and one of them has already become the Minister of Justice (Denys Malyus’ka). The draft law aims at promoting deregulation, and therefore affects the area of ​​administrative services. That is why it envisages a number of amendments to the Law of Ukraine “On Administrative Services”. In particular, this draft Law stipulates that the name of the administrative service and the grounds for its obtaining, the entity providing the administrative service and its authority to provide the administrative service, as well as the list and requirements for documents necessary for obtaining the administrative service will be determined not at the level of the law, but by the Cabinet of Ministers of Ukraine, that is, at the level of governmental by-laws. The CPLR strongly opposes such innovations. They threaten the reform of the administrative service provision system, which is one of the most successful in Ukraine.

1. Determining the name of an administrative service and the grounds for its obtaining at the level of by-laws carries the risk of unjustified fragmentation by the Government of one administrative service into several separate ones. In Ukraine, the practice of approving so-called “lists of services” by by-laws aimed at increasing their number and earning money from citizens has already existed. The norms that carry such risks are contrary to the process of deregulation. That is why the Law of Ukraine “On Administrative Services” stipulates that their names and grounds for obtaining are established by law.

2. The norm of the draft law on the definition of the entities providing administrative services and their powers to provide such services by the Government at the level of by-laws is contrary to the Constitution of Ukraine. Thus, according to part 2 Article 6 of the Constitution, legislative, executive and judicial bodies shall exercise their powers within the limits established by this Constitution and in accordance with the laws of Ukraine. Therefore, the Government cannot by its by-laws delegate new powers to other authorities. In addition, this provision of the draft law poses a threat of interference with local self-government (LSG), since many administrative services are provided by LSG bodies, but the draft law does not take this into account.

3. Determination of the list and the requirements for the documents necessary for obtaining the administrative service by the by-laws of the Cabinet of Ministers also bears significant risks. On the one hand, this mechanism can be used for deregulation. On the other hand, it can also damage deregulation and cause additional bureaucratic barriers for citizens and businesses. Regardless of the intentions of the current Government, it must be borne in mind that governments will change. At the same time, regulation at the level of by-laws does not have the proper degree of transparency and stability, as well as sufficient consideration of the interests of citizens. As an example, today some lists of documents for obtaining administrative services (for example, for a passport in the form of a card) are determined by by-laws. This often results in citizens being asked for additional documents that are not provided for in any regulatory document. Sometimes the lists of documents for obtaining administrative services are determined by several by-laws. It is inconvenient for citizens to find and read their contents. Moreover, they can even contradict each other. In addition, by-laws can be quickly and conveniently supplemented with new requirements and documents for obtaining administrative services. Consequently, citizens will be poorly protected from the risks of the new bureaucracy.

2. Respective authorities counter-point/argument

The explanatory note to the draft law states that this document is aimed at introducing mechanisms of timely and effective response of the state to the requests of business, citizens and investors, related to the need to improve and simplify the relevant administrative and authorization procedures by defining at the level of acts of the Cabinet of Ministers of Ukraine the basic requirements for an authorization system in the field of economic activity and the provision of administrative services. It is also noted that the proposed changes will allow not only to promptly respond to the economic processes in Ukraine, to carry out effective deregulation in the field of economic activity, but also to choose the most relevant instruments of state regulation of access to markets in the context of respective legal relations.

3. CPLR assessment of the authorities counter-point

In our opinion, in terms of the proposed amendments to the Law of Ukraine “On Administrative Services”, this draft law does not guarantee deregulation. Moreover, it carries the risks of violation of the Constitution of Ukraine, interference in local self-government area, the emergence of a new bureaucracy in practice. Ukrainian realities show that regulating the above-mentioned aspects by by-laws leads to an increase in the level of corruption in the area of provision of administrative services, an increase in the number of unnecessary services for citizens and making profits on citizens.

4. Related legislation/instructions which require the authorities act in a certain manner 

Constitution of Ukraine, the Law of Ukraine “On Administrative Services”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Draft law No.1067 should be rejected (at least in part that relates to amending the Law “On Administrative Services”).

Initiative of the President of Ukraine on the Restart of the Judicial Governance Bodies Needs Revision (draft law No. 1008)

1. CPLR expert opinion

On August 29, the new convocation of the Verkhovna Rada of Ukraine began its work. One of the first registered draft laws was a presidential draft law on the improvement of judicial governance bodies. The draft law is motivated by the excessive discretion of the High Qualification Commission of Judges of Ukraine in conducting competitive procedures and qualification evaluation, delaying consideration of disciplinary complaints by members of the High Council of Justice, etc.

The CPLR experts support the initiative of the President of Ukraine to solve the problem of inefficient and dependent activity of judicial governance bodies, but believe that the measures proposed by the draft law are insufficient to achieve these goals. In our opinion, for the successful implementation of this initiative, first and foremost, the following measures should be implemented:

2. Respective authorities counter-point/argument

The President of Ukraine proposes to take a number of measures:

On September 5, the HCJ approved an advisory opinion on the President’s draft law, which is mandatory for consideration, according to the law. The Council considers it inappropriate to reduce the amount of remuneration for members of the HCJ, reduce the composition of the Supreme Court, lustrate the heads of the HQCJ and the State Judicial Administration, and limit the length of disciplinary proceedings. The HCJ also believes that the powers delegated to the Commission on Integrity and Ethics in accordance with the draft law are too broad and this will adversely affect the independence of the HCJ members.

3. CPLR assessment of the authorities counter-point

In the opinion of the CPLR, the draft law contains a number of positive ideas. In particular, the CPLR supports the reset of the HQCJ with the involvement of international experts and the introduction of control over the integrity of the members of the HCJ and the HQCJ with the involvement of international experts. However, the measures proposed by the draft law are only partly aimed at solving the declared problems, and some measures go beyond the subject matter under regulation and the mentioned problems. Without revision, the draft law bears significant risks of increasing the political dependence of judges and the governance of the judicial corps, in particular, by delegating implementation the main reform measures to the current composition of the HCJ, which has played the same role in sabotaging previous reforms as the HQCJ.

A detailed analysis of the draft law is available through the link.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine “On Judicial System and Status of Judges”, Law of Ukraine “On the High Council of Justice”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The Centre of Policy and Legal Reform proposes to refine the draft law in the following areas:

Parliament passed several important draft laws in the first reading

1. CPLR expert opinion:

On September 9-13, the Verkhovna Rada approved in the first reading several draft laws related to anti-corruption policy:

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

–

4. Related legislation/instructions which require the authorities act in a certain manner

–

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Each of these draft laws is currently being prepared for the second reading, with the shortened preparation period. Although it was initially proposed to adopt these draft laws immediately in general, consideration of all draft laws in two readings will allow their proper review and discussion, as well as addressing some of the shortcomings in their provisions. In particular, the CPLR experts submitted their proposals to the draft law No. 1029 regarding the restart of the National Agency for Corruption Prevention, as well as the proposed changes to the financing of political parties.