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Weekly analytics for 11 – 18 of October

19.10.2022

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

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More than 300 candidates continue to participate in the competition for the HQCJ


Event

On October 6, a meeting of the Competition Commission for the selection of members of the High Qualification Commission of Judges (hereinafter the HQCJ) was held, during which the subject of admitting candidates to the competition was considered. Following the meeting, 301 candidates were admitted to the competition, including 96 judges, 64 candidates with “mixed” professional experience, 50 scholars, 45 advocates, 11 retired judges, 11 prosecutors, 9 representatives of law enforcement agencies, and 15 private entrepreneurs and persons with other professional experience. Currently, the competitiveness rate is almost 19 candidates per one vacant position of a member of the HQCJ.

CPLR’s assessment 

After the candidates are admitted to participate in the competition, the next stage should be analyzing their data in the context of compliance with integrity and professional competence criteria by the Competition Commission and making up the list of candidates who will participate in interviews (at a rate of maximum four candidates per one vacant position). Thus, only 64 candidates should reach the interview stage.

Then, based on the interviews results, the Competition Commission will compile a list of candidates recommended for appointment (at the rate of at least two candidates per one vacant position of the HQCJ member). It is from this list that the High Council of Justice must appoint the members of the HQCJ. As a reminder, the HQCJ composition should include a total of 16 members, at least eight of whom should be judges/retired judges. However, only 11 members (of which at least six are judges/retired judges) are sufficient to launch the HQCJ’s activity.


Draft law on consequences for Parliament and local councils members in connection with the ban on a political party was registered in the Parliament


Event

On September 29, the draft law “On amendments to certain legislative acts of Ukraine regarding the establishment of legal consequences for the status of members of Parliament and members local councils in connection with a court judgment on prohibition of a political party” (Reg. # 8089), which provides for amendments to the laws “On the status of members of Parliament of Ukraine”, “On local self-government in Ukraine”, “On political parties in Ukraine”, “On the status of members of local councils”, “On cleansing of power” and the Parliament’s Regulations, was registered in Verkhovna Rada. This draft law proposes the following consequences for MPs and members of local councils in connection with the ban on a political party:

– a number of serious restrictions on the powers of MPs elected from political parties in respect of which a court ruled to ban their activity;

– early termination of the powers of members of local councils elected from such a political party, as well as early termination of the powers of a local council from the date of entry into force of the act of the President on the formation of the corresponding military-civilian and military administrations in the event of termination of powers of more than half of the members from the composition of the council on such grounds;

– prohibition to occupy positions in state authorities and local self-government bodies, including positions of judges, staff of internal affairs bodies, prosecutor’s offices, and other law enforcement agencies, for a period of ten years from the moment of termination of the powers of an MPs or member of a local council elected from such a political party.

Legal assessment

According to the draft law, in case of a court ruling to ban a political party, an MP who at the time of such a judgement was a member of the parliamentary faction of such a political party in the Verchovna Rada will automatically (without a separate decision by parliament) loses the opportunity to exercise the basic powers guaranteed by the Constitution and provided for by law. In particular, such member of the Verchovna Rada:

–  may not participate in the Parliament’s meetings, work of MPs factions (groups), work of committees, temporary special commissions, temporary investigative commissions, parliamentary hearings, drafting work, or other parliament activity;

–  loses the authority of the head, first deputy head, deputy head, or secretary of a committee, temporary special commission, or temporary investigative commission formed by the Parliament;

–  may not be elected to the positions of Head, First Deputy Head, and Deputy Head of Parliament;

–  may not join MPs factions (groups) or unite in such factions (groups);

–  may not to participate in meetings of the Conciliation Council of MPs factions (MPs groups);

–  loses the powers of a member of the Parliament’s official delegation.

According to CPLR’s experts, such legal consequences appear to be discriminatory since, along with “ordinary” MPs, a separate group of MPs is created in the Verchovna Rada. De facto, they cannot exercise their main powers in accordance with the Constitution and the law, but at the same time de- jure, they do not lose their powers in accordance with Article 81 of the Constitution of Ukraine. In essence, the draft law with such bans on the MPs activities replaces the institution of early termination of the powers of an MP, which is regulated by the Constitution of Ukraine. The grounds for an MP to exercise his/her powers – regardless of political party affliation – is his legitimate deputy mandate, obtained as a result of participation in parliamentary elections, rather than the absence of bans on a political party from which the deputy in question was elected. If the law essentially establishes unconditional bans on the exercise of a significant amount of MPs’ powers, this nullifies the substance and significance of the representative mandate of a member of parliament. Given this, the disproportionate restrictions on an MP’s powers envisaged by this draft law violate the principle of the rule of law, and therefore contain elements unconstitutionality. The scope and limits of powers for all MPs should be equal; that is, in this case, the scope and limits of powers of such MPs should not differ from the corresponding powers of MPs not affiliated with any faction.

Regarding the members of local councils, the draft law envisages two additional grounds for terminating their powers:

– entry into force of a judgement banning the activity of a political party from whose local organization the relevant person was nominated and elected as a member of the local council;

– member of local council’s joining the faction of a local organization of a political party whose activity is prohibited by a judgement that has entered into force.

The Constitution does not regulate the issue of grounds and procedures for early termination of the powers of members of local councils, as well as of the local councils themselves; in accordance with section 4 of Article 144, as well as Article 146 of the Constitution, the status of members of local councils and their powers, as well as other issues of local self-government organization, establishment, activities, and responsibilities of local self-government bodies are determined by law. Early termination of powers of members of those local councils where the powers of more than half of the members of the general membership were terminated due to such a reason appear to be a proportionate legal response measure, since otherwise there would be the risk of blocking the activities of such councils. However, the provision of the draft law that the powers of a village, settlement, city, city district, district, or regional council are subject to early termination on this ground from the date of entry into force of the act of the President of Ukraine on the formation of a corresponding military-civilian or military administration contains defects as to its legal certainty and indications of retroactive effect in time.

As for the lustration restrictions proposed by this draft law, these provisions also contain defects as to legal certainty, because the list of bodies in which such ex-members are prohibited from holding positions is too abstract, which may cause misunderstandings when applying such prescriptions in practice. It must also be noted that the Law “On cleansing of power”, the amendments to which are proposed, was adopted as a one-time measure for the restoration of democratic governance after the Revolution of Dignity, and in accordance with section 2 of Article 1 of this law, “cleansing of power (lustration) is carried out with the aim of preventing the participation in administration of public affairs by the persons who, by their decisions, actions, or inaction, carried out measures (and/or contributed to their implementation) aimed at the usurpation of power by the President of Ukraine Viktor Yanukovych, undermining the foundations of Ukraine’s national security and defense, or unlawful violation of human rights and freedoms.” Based on the above, it is hardly constitutional for this Law to expand the list of persons who are prohibited from holding positions in civil service and local self-government bodies.

We are also drawing attention to the fact that the Law “On cleansing of power” itself is currently subject to constitutional review by the Constitutional Court, which has been considering this case since 2015.

Thus, the provisions of the draft law # 8089 have a number of significant defects regarding disproportionate restrictions for members of Parliament of Ukraine, which affect its constitutionality:

– establishment of legislative restrictions and prohibitions that replace the constitutional institution of early termination of the powers of MPs;

– inconsistent application of the lustration restrictions in relation to ex-MPs.

As for members of local councils, the draft law does not provide for unconstitutional grounds for terminating their powers; however, it is important to understand that any consequences for MPs and members of local councils relating to the ban on a political party must be proportionate to the corresponding legitimate aim pursued by the legislator.