Nowadays, the legal status of the National Anti-Corruption Bureau of Ukraine (NABU) and the State Bureau of Investigation (SBI), as well as of the independent regulators (the National Commission for State Regulation of Communications and Informatization, the National Commission for State Regulation of Financial Services Markets, and the National Securities and Stock Market Commission) has a fatal flaw. These governmental bodies exist outside the executive power system, and they are directly or indirectly subordinated to the President of Ukraine. Such a situation is quite inconsistent with the Constitution of Ukraine. Ignoring the unconstitutional issues of the basic legislative parameters regarding the activities of these bodies may call to their illegitimacy in the future.
One of the seven draft laws submitted by the President on the first workday of the Verkhovna Rada of Ukraine of the ninth convocation (29 August 2019), was the draft law amending Article 106 of the Constitution of Ukraine (No. 1014). Draft Law No. 1014 grants new powers to the President of Ukraine—establishment independent regulators and NABU, as well as to appoint and dismiss the Director of NABU and the Director of the SBI. These draft laws were developed behind closed doors. Despite system integrity insufficiency, they introduce a substantial imbalance in the parliamentary-presidential form of government due to the strengthening of the President and the weakening of the Parliament. For the first time in the constitutional history of Ukraine, the Constitutional Court of Ukraine issued negative conclusions on three of the seven draft laws submitted by the President of Ukraine (including Draft Law No. 1014). A negative conclusion of the Constitutional Court made further consideration of such draft laws impossible.
Since the Constitution is both a political and legal document, as well as the basis of the entire legal system and legal foundation of society, any initiatives for constitutional reform must be the result of a comprehensive civil discussion.
Today, the media announce the preparation of new constitutional initiatives of the President of Ukraine to optimize the legal status of NABU, SBI, and independent regulators. We welcome the desire of the President of Ukraine to solve these issues. However, it seems that the process of this very draft law development again resembles the practice of drafting the text behind closed doors, as it was last year.
Only a transparent constitutional process involving the representatives of parliamentary factions and groups, the Ukrainian and foreign experts who are ready to submit proposals to improve the relevant provisions of the Constitution of Ukraine will help to legitimize the constitutional reform initiated by the President of Ukraine and to develop Ukraine as a state governed by the rule of law in the future.
Given the all above-mentioned reasons, we call on the President of Ukraine:
Centre of Policy and Legal Reform
Public Association “Reanimation Package of Reforms Coalition”
NGO “Institute Republica”