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Guarantor of the Constitution: the President should lead the way!

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The President of Ukraine is the guarantor of the Constitution observance (Art. 102 of the Constitution).

However, after getting into office, the main thing for the presidents in the policy of “guaranteeing” compliance with the Constitution is dominating public administration – in particular through unconstitutional practices rather than through public support and trust.

Thus, the extension of the constitutional powers of the president by consolidating them in laws and by-laws has become a standard practice in Ukraine. Often, this includes the introduction of new unconstitutional powers rather than a regulation of the implementation of the constitutional powers of the president (let us remind you that the Constitutional Court has repeatedly stressed: the powers of the president are established exclusively by the Constitution). And this is another example of unconstitutional practice – ignoring, non-enforcement of the resolutions of the Constitutional Court. Moreover, state leaders usually see the Constitutional Court as an instrument to achieve their temporary political goals and, accordingly, build their human resources policy regarding the appointment and dismissal of the judges of the CCU for the purpose of obtaining influence on the CCU judges.

By the way, similar policy was also demonstrated by the “guarantors of the Constitution” in relation to the courts: the most important thing is to hinder the development of an independent judicial branch.

On the eve of the second round of the presidential election, it is worthwhile to outline the legacy of powers that go beyond the constitutional limits:

– Appointment and dismissal of the head of the governing body of the State Special Transport Service on the proposal of the Minister of Defense of Ukraine (clause 3 of Art. 17 of the Law of Ukraine “On National Security”);

– Appointment of the Director of the National Anti-Corruption Bureau (Art. 6 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”);

– Appointment of three persons to the competitive commission which chooses the directors of the NABU (Art. 7 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”);

– Appointment of one of the three persons of the external control commission carrying out audit of the NABU activities (clause 6 of Art. 26 of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine”);

– Appointment of the Director of the State Bureau of Investigations (Art. 11 of the Law of Ukraine “On the State Bureau of Investigations”);

– Appointment of three persons to the competitive commission which chooses the SBI director, their deputies and directors of the territorial bodies and heads of departments of the central office of the State Bureau of Investigations (clause 3 of Art. 11, Art. 13 of the Law of Ukraine “On the State Bureau of Investigations”);

– Determination of one person in the committee selecting NACP members (clause 4 of Art. 5 of the Law of Ukraine “On the Prevention of Corruption”);

– Appointment and dismissal of the chairperson and members of the National Commission for the State Regulation of Communications and Informatization; approval of provisions on its activities (Art. 17 of the Law of Ukraine “On Telecommunications”);

– Appointment and dismissal of the chairperson of the Antimonopoly Committee of Ukraine with the consent of the Verkhovna Rada of Ukraine (Art. 6, Art. 9 of the Law of Ukraine “On the Antimonopoly Committee of Ukraine”);

– Appointment of the first deputy and deputy chairperson of the Antimonopoly Committee of Ukraine and their dismissal on the proposal of the Prime Minister of Ukraine (Art.10 of the Law of Ukraine “On the Antimonopoly Committee of Ukraine”);

– Responsibility of the State Property Fund of Ukraine to the President of Ukraine. The State Property Fund of Ukraine exercises the powers specified by the laws of Ukraine and related to the implementation of the tasks entrusted to it by the President of Ukraine: appointment by the president of the chairperson of the State Property Fund, their first deputy and deputy and their dismissal (on the proposal of the Prime Minister of Ukraine) (Art. 1, Art. 5, Art. 8 of the Law of Ukraine “On the State Property Fund”);

– Powers to issue regulatory acts (a regulatory act which is aimed at or whose provisions are aimed at the legal regulation of business relations, as well as administrative relations between the regulatory authorities or other public authorities and legal entities) (Art. 1 of the Law of Ukraine “On the Principles of State Regulatory Policy in the Sphere of Business Activity”);

– Appointment of one representative to the Commission on the issues of the senior civil service (Art. 14 of the Law of Ukraine “On the Civil Service”);

– Initiation of the creation of special (free) and other zones (Art. 5 of the Law of Ukraine “On General Principles of Special (Free) Economic Zones Creation and Functioning”);

– Responsibility of the Ministry of Finance of Ukraine for State Budgeting for the next two budget periods, for the development of a draft of the Key Areas of the Budget Policy for the next budget period in accordance with the Annual President’s Address (Art. 21, Art. 33 of the Budget Code);

– Appointment of five members of the Supervisory Board of the State Bank (Art. 7 of the Law of Ukraine “On Banks and Banking”);

– Approval of the Regulations on the National Securities and Stock Market Commission, approval of programs for the stock market development; (clause 4, clause 9 of the Regulations on the National Securities and Stock Market Commission);

– Approval of the Regulations on the National Commission for State Regulation of Financial Services Markets;

– Appointment of seven members of the Accumulation Fund Board (Art. 81 of the Law of Ukraine “On Compulsory State Pension Insurance”);

– Appointment of two members of the Competition Commission selecting members of the National Commission for State Regulation of Energy and Public Utilities; appointment of the Regulator’s members out of the candidates selected by the Competition Commission. (Part 3 of Art. 8 of the Law of Ukraine “On the National Commission for State Regulation of Energy and Public Utilities”);

– Ensuring the implementation of the state aviation development policy of Ukraine (clause 3 of Art. 4 of the Air Code of Ukraine).

– Participation in the procedure of approval of the National Guard leadership;

– Determination of the procedure for acceptance into service and service by the military prosecutors, approval of the appointment of military prosecutors for certain offices;

– Assignment of special ranks to prosecutors (the Law of Ukraine “On Prosecutor’s Office”);

– Assignment of special ranks to the police officers (Art. 81, Art. 82 of the Law of Ukraine “On the National Police of Ukraine”);

I gave this boring list of president’s powers which should be checked for constitutionality because I hope that the next presidential term will be a period of renewal of balance among the branches of power and a period of constitutional nihilism eradication.

Instead of a conclusion, here is a question for the debate:

“Dear presidential candidates, which unconstitutional practices and powers are you ready to abandon?”

Yuliia Kyrychenko for the Dzerkalo Tyzhnia Newspaper

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