Weekly analytics for 08 — 14 November

Lobbying vs Advocacy: Where is the line between transparency and over-regulation?

Event

On November 10, the National Agency for Corruption Prevention held a public discussion of draft laws of Ukraine “On integrity in lobbying and advocacy in Ukraine” and “On amendments to the Code of Ukraine on Administrative Offenses regarding violations of legislation in the area of lobbying and advocacy”.

As stated in the preamble to the first draft law, it should define the legal principles of integrity in conducting and organizing of lobbying and advocacy in Ukraine.

It is proposed to determine:

– terminology in the area of lobbying and advocacy;

– rights and obligations of lobbying and advocacy entities;

– methods of lobbying and advocacy;

– creation of the Rules of Ethical Behavior for agents of influence;

– creation of the Transparency Register.

The draft Law “On amendments to the Code of Ukraine on Administrative Offenses regarding violation of legislation in the area of lobbying and advocacy” proposes to introduce administrative responsibility for lobbying and advocacy activities without registration, violations of legislation in the area of lobbying and advocacy, and “conflict of interests violations” during lobbying.

CPLR’s expert assessment 

According to Article 7 of the UN Convention against corruption, member states must adopt, maintain, and strengthen systems that promote transparency and prevent conflicts of interest. Such systems include, in particular, lawfull, transparent and accountable lobbying.

Formation of clear and understandable lobbying rules is a requirement of the Ukrainian state program documents and Ukraine’s Western partners regarding EU accession. It will contribute to reducing the level of political corruption and allow the public to control the decision-making process of state and local self-government bodies more effectively.

However, the draft law submitted for public discussion also proposes to establish rules for additional regulation and responsibility for civic and human rights organizations engaged in the advocacy activities, wich are actually the moving force of reforms necessary for Ukraine’s European integration course.

The draft laws proposed for discussion by the NACP contain provisions that may lead to the decline of active civil movement in Ukraine, as they essentially envision commingling lobbying and advocacy. Based on the content of provisions of these drafts, there is no difference between these types of activities.

The risk of such an ungrounded commingling of these concepts is that civic organizations engaged in advocacy may be subjected to statutory instruments of legal responsibility as levers of political pressure and suppression of dissent.

In its report regarding Ukraine published on November 8, 2023, the European Commission noted that the legislative regulation of lobbying should not impede the legitimate activity of civil society, limit it or create a disproportionate administrative burden.

Instead, the proposed draft laws contain provisions that will regulate forms of interaction between the public and decision-making entities, introduce additional reporting for civic organizations, and establish the rules of ethical behavior of their representatives. They also provide for administrative responsibility for advocacy activities without entering information into a special transparency register.

Since the very beginning of the Revolution of Dignity and the russian-Ukrainian war, the public in Ukraine has repeatedly proven its ability to self-regulate. Civic organizations that espouse integrity publish on their websites financial reports, results of external audits and information regarding the projects they implement. Contrary to that organizations that lack integrity quickly become the subject of wide public attention, lose the trust of donors, and therefore naturally cease their activities.

For many years, the civic sector in Ukraine has proven and continues to prove that it does not need additional legislative regulation, which is not provided for either by the requirements of the European Union or by state program documents.

Thus, the draft laws on the regulation of lobbying and advocacy as proposed for discussion in their current version are unacceptable for further consideration and contain risks for the preservation of democracy in Ukraine.

More detailed analysis of these documents will be published on the CPLR’s website soon.

Competitive selection of CCU judges: Advisory Group of Experts starts its work

Event

On Sunday, 12 November 2023, the first meeting of the Advisory Group of Experts (AGE) was held, which will further assess the moral qualities and level of  competence in the field of law of the candidates for the CCU judge position.

At its first meeting, the Advisory Group of Experts elected the Chairperson and Secretary and approved the Regulations on the Advisory Group of Experts.

Ales Zalar was elected as the Chairman of the AGE and Yaroslav Romanyuk as the Secretary.

At the meeting, the AGE members also discussed the development of the Methodology for Assessment of Moral Qualities and Legal Competence of Candidates for the Position of a CCU Judge. 

According to Ales Zalar, the work on the draft of this document was started several weeks ago. He is convinced that the AGE members will be able to develop its final version in the near future. 

As a reminder, pursuant to the Article 108 of the Law of Ukraine “On the Constitutional Court of Ukraine,” the moral qualities and level of competence in the field of law of candidates are assessed by the AGE within a period of no more than four months from the date of receipt of the candidates’ documents from the appointing authorities.

Today, the AGE consists of 6 members: Ales Zalar, Anna Sukhotska, Maureen O’Connor, Natalia Kuznetsova, Oksana Vasylchenko and Yaroslav Romaniuk. Each of them has one deputy, who will take over the vacant position in case of early termination of the powers of the AGE member.   

All information on the activities of the Advisory Group of Experts, as well as broadcasts of its meetings, can be found on the official Facebook page and YouTube channel.

Information on the activities of the Advisory Group of Experts will also be posted on the website of the Constitutional Court of Ukraine in the section “For the information of citizens”, heading “Advisory Group of Experts”.

CPLR experts’ assessment

The CPLR experts positively assess the implementation of the legislative provisions regulating the procedure for competitive selection of CCU judges in terms of procedural issues and compliance with deadlines. Only the President of Ukraine appointed a member of the AGE and elected his deputy in violation of the 30-day deadline.