On January 26, the Verkhovna Rada adopted the draft law “On the All-Ukrainian Referendum” in the second reading and as a whole. The Agency for Legislative Initiatives has analyzed it and is ready to share the results.

The adopted draft law has more pros (or gains) than cons (or threats), in short. The draft law “On the All-Ukrainian Referendum” is, without any doubt, better than the previous unconstitutional and unconstitutionally adopted law on the national referendum. And the final version, adopted in the second reading, considers some of the comments and is, therefore, better than the first reading version. According to Article Thirty-eight of the Constitution, citizens of Ukraine are guaranteed to participate in the all-Ukrainian referendum. According to the Basic Law, without a referendum, it is impossible to change the territory of Ukraine and make changes to I, III, and XIII Chapters of the Constitution. That is, the need to adopt a law on a referendum is conditioned by constitutional norms. However, the adopted draft law should not be idealized: it has some shortcomings, and 27 pages of comments of the Main Legal Department can serve as confirmation of this.

The draft law has been developing and editing with the involvement of an expert community for more than a year. It partially considers the ODIHR / OSCE and the Venice Commission’s recommendations, expert comments on the draft of the first reading. Certainly, it has very detailed and well prescribed procedural mechanisms. Therefore, many specialist organizations respond positively to this approved version. And although the draft law “On the All-Ukrainian Referendum” has many positives, some shortcomings need to be addressed to understand the risks and limitations that we may face in the implementation of this law.

The draft law “On the All-Ukrainian Referendum” does contain several safeguards: for example, the issue of the death penalty for MPs and officials for corruption or the reduction of taxes for Ukrainians cannot be put to a referendum. But other populist issues can be raised, such as the abolition of benefits for MPs, providing free housing for all citizens, etc. These may be questions that usually split Ukraine, the classic set – whether Bandera/Shukhevych/Zhukov/some red commissar is a hero of Ukraine or whether it is worth giving the status of the state language to Russian, etc. These matters may be national importance issues, and the adopted draft law on the referendum does not protect against them. In some countries, there is a practice where the authorities can adjust or at least influence the wording of the question. The Venice Commission recommended this option. But Ukraine has taken a different path: by Article 30 of the adopted version of the law, the text of the question submitted to the referendum can not be changed after its approval by the initiative group.

Such a norm was probably added to prevent abuse of power, which could harm “good” and “people’s” initiatives. However, the referendum will instead be a tool for organized political groups, given the signature collection procedure’s peculiarities. These political groups will be able to use populist issues that the government will not be able to correct. The adopted draft law does not consider the Venice Commission’s recommendations on the unity of form, content, and hierarchy of the referendum issue.

The adopted version of the law creates several safeguards against manipulation and possible attempts to infringe on the democratic regime. However, it is worth remembering the context in which Ukraine finds itself: we have problems with the rule of law, we are in a state of actual war, economic crisis, and only seven years have passed since the potential dictator fled to Russia.

In these circumstances, a referendum, no matter how perfect the law is, can be used to increase instability and establish attempts to restrict citizens’ rights and freedoms and undermine democratic institutions.

The Venice Commission also mentions the danger of referendums in its recommendations in terms of confrontation between the executive power and the parliament.

A referendum is often called a voice of the people, and the possibility of repealing laws is called a “right to revolt”.

You need to go through many verification procedures and collect and submit many different types of documents.

The initiation of a national referendum is very resource-intensive: it is necessary to collect 3 million signatures in not less than 2/3 of regions and not less than 100 thousand signatures in each region. For about half of them 100,000 people is about 10% of the population – that is, it is necessary to collect the signatures of every tenth person living in the region. All this must be done in 90 days. According to paragraph 6 of Article 32 of the draft law, signatures can be compiled only by members of the initiative group and only in paper form, as the rules on applying for support of the referendum initiative in electronic form were excluded during the consideration of the draft law in the plenary hall, arguing that these norms are unconstitutional and this mechanism could be opaque. So, on average, you need to collect 33,000 signatures on paper per day.

Will volunteers be able to organize such a process? It isn’t very likely, even if we believe in the self-organizing ability of Ukrainians. It is rather possible for highly organized political groups with funding, human and time resources. Regardless of who manages the referendum – volunteers or political groups – the authorities can, if they wish, disrupt the process. The Central Election Commission (the CEC) may not register something, not accept any documents, or find any violations in the complicated procedure of initiating a referendum. It is still possible to impose a state of emergency in one of the regions (for example, if forests are burning in the Luhansk region or there are floods in Zakarpattia) and disrupt the referendum process. It means that if the [anti-people/dictatorial] government wants to prevent a referendum, it will do so.

Therefore, we should not think that a referendum can become a viral initiative or that the people can use a referendum to express dissatisfaction with the adoption of a law. If the referendum is organized, it will be initiated by capable political groups in the absence of categorical disagreement of the authorities (and given the previous experience of Ukraine, the initiation of a referendum will most likely be done by the President himself).

The adopted draft law establishes that electronic voting will be possible only after the entry into force of the law on innovative technologies for electronic (machine) voting. It is not clear from the adopted draft law on referendum what electronic voting will be like – whether it will be special polling machines for polling stations, or it will be voting at home from a personal computer through a created site, or the Ministry of Digital Technologies will present a separate application. If the voting is remote (from a computer via a website), then there are many problems with compliance with the voting principles set out in Articles 6-13 of the law.

The referendum must provide universal, equal, direct, free, voluntary, secret, personal, and one-time voting. And remotely, it will be difficult to trace who is voting, whether there are facts of pressure, bribery, how many times one person can vote, and so on.

In Europe, e-voting is used only in isolated cases. The Venice Commission also mentioned the danger of electronic voting in terms of technical reliability, transparency, security, and secrecy in its conclusion.

Such a ban is only for holding a referendum simultaneously with regular elections of various kinds. Therefore, although supporters of the adopted law “On the All-Ukrainian Referendum” deny the possibility of mass use of referendums, we should not rule out using this tool by unscrupulous initiators to obstruct other referendums and clog the media space.

According to the working group members for the development of this draft law, if holding one referendum costs 1-2 billion hryvnias, holding several referendums a year does not bring anything good to the Ukrainian budget.

The adopted draft law prohibits only the initiation of several referendums on one issue at a time. Dishonest initiators can also use this norm: if you are the first to register an initiative group in the CEC, a referendum on a particular issue can be blocked. It does not matter how many signatures such a fake initiative group will collect. Those who want to hold a referendum will have to wait at least 90 days to register their initiative.

In some European countries, the law’s repeal is possible shortly after its adoption, even before it has wholly entered the state’s legal field.

Repealing any law or its provisions can be pretty dangerous because it unbalances the legal system and leaves gaps in it.

There may be a legal vacuum (a situation where certain social relations are not regulated by law), which can not be filled. It happens for many reasons. On the one hand, MPs may not count on the success of the cancellation referendum and, accordingly, not prepare for its consequences (if we recall the attitude to the Brexit referendum and the corresponding level of readiness of MPs in the homeland of the parliamentary system, there are reasonable doubts about the predictive capabilities of Ukrainian MPs). On the other hand, it is essential to remember that passing law is usually a difficult compromise for many political groups and the more important the law is, the harder it is to reach such a compromise. And at the time of repealing the law, such a compromise may not exist, which will lead to a legal vacuum.

Repeal of laws through referendums is also questionable in terms of violation of the constitutional competence of the Verkhovna Rada of Ukraine, as “the only legislative body in Ukraine is the parliament – the Verkhovna Rada of Ukraine”, and it is the powers of the Verkhovna Rada to adopt laws, including the abolition of other laws. The Venice Commission recommended giving parliament a role in the referendum process on repealing laws: for example, providing a text of a law that would replace the text of a repealed law if the referendum was successful. However, this was not done.

Violation of the Verkhovna Rada’s constitutional competence may be the reason for declaring the law on referendum unconstitutional.

The procedure of adopting the draft law “On the All-Ukrainian Referendum” was also problematic. During the preparation for consideration and consideration of the draft law in the second reading, the MPs deviated from some Verkhovna Rada Rules of Procedure norms without applying the ad hoc procedure provided for in Art. 50 of the Rules of Procedure.

It can be considered a violation of the Rules of Procedure and thus undermine the adopted draft law’s legitimacy.

The repeatedly identified problem of the Rules of Procedure of the Verkhovna Rada, which often leads to an imbalance in the text of draft laws in the session hall, has once again manifested itself. Ironically, the imbalance of the law’s internally agreed text due to the removal of some of its provisions occurred with the adopted version of the law on referendum. In particular, the wording of the draft law, which was adopted in the first reading, in paragraph 2 of Art. 4 contained the following somewhat contradictory provision:

“The decision made at the all-Ukrainian referendum can be changed only by the all-Ukrainian referendum not earlier than in three years from the date of its acceptance”.

Before the second reading, the committee changed this provision to another:

“A new all-Ukrainian referendum on issues previously supported in the all-Ukrainian referendum may be held not earlier than three years from the date of announcement of the results of the relevant all-Ukrainian referendum”.

“A new all-Ukrainian referendum on issues that were not previously supported in the all-Ukrainian referendum may be held not earlier than one year from the date of announcement of the results of the relevant all-Ukrainian referendum”.

However, at the very end of the review of the amendments, V. Vyatrovych confirmed these amendments. Voting to confirm the first amendment failed (9 votes were not enough), the second amendment still managed to get the required votes. Therefore, paragraph 2 of Art. 4 of the adopted law says:

“A decision made in an all-Ukrainian referendum may be changed only by an all-Ukrainian referendum not earlier than three years from the date of its adoption.

A new all-Ukrainian referendum on issues that were not previously supported in the all-Ukrainian referendum may be held not earlier than one year from the date of announcement of the relevant all-Ukrainian referendum results”.

It is quite possible that the draft law “On the All-Ukrainian Referendum” adopted later in the second reading and as a whole will be amended and corrected. Still, now, this has several ambiguous consequences. Firstly, the first item of paragraph 2 of Art. 4 contradicts the second item of paragraph 2 of Art. 4 and item 2 of Art. 122, because in one place, any decision cannot be changed for three years, and in another – that an unsupported decision can be put to a referendum in a year. Secondly, it turns out that the laws/some of their provisions, repealed by the referendum, will be repealed forever because of the referendum’s decision, following the first item of paragraph 2 of Art 4, can be changed only through a referendum.

A change in the decision to repeal the law is the adoption of a law. According to the law “On the All-Ukrainian Referendum”, laws in a referendum can only be repealed, not adopted. Third, the change in the decision not to repeal the law is to repeal the law.

Given that the decision of the referendum can be changed only in a referendum, then the law, which was not repealed once, receives additional “protection” – now it can be revoked only in a referendum.

And while whether the repeal of laws is an interference with the Verkhovna Rada’s constitutional competence can be a matter of debate, the repeal of laws forever and the special protection of laws look more clearly like such an interference.

The fact is that in the wording adopted in the first reading, NGOs could form these funds at their own expense. Unlike political parties, NGOs have no restrictions on the sources and amounts of contributions. It means that the entire structure of the control over the financing of the referendum (which provides for the restriction of funding sources and the size of the contribution from one source) – was destroyed. After all, some oligarch or a hostile state could contribute a large sum of money to the NGO’s account. This NGO could already transfer these funds to the account of its all-Ukrainian referendum fund. Many experts and even the Venice Commission have drawn attention to this problem. And in the second reading of paragraph 3 of Art. 72 the opportunity to finance NGOs’ funds at their own expense was removed, but paragraph 7 of Art. 72 is still about this possibility. How this rule will be applied in practice is not entirely clear, so the risk of non-transparent funding provided by large tranches from dubious sources through NGOs remains.

Summing up, a referendum is a tool that can be used with both good and bad intentions. It should not be assumed that with the current design, the referendum will be an instrument of the people’s will. Organized political groups or the President will definitely use it.

Despite the safeguards, the adopted draft law contains dangers – among them electronic voting (although in the final version, it became a dead norm) and a legal vacuum in place of repealed norms. The adopted law “On the All-Ukrainian Referendum” has some technical shortcomings, all of which were not mentioned in our analysis, but some of which look pretty threatening – unwavering referendum decisions and non-transparent funding through NGOs. These shortcomings can be corrected in the future, so it remains to hope for Ukrainian lawmakers’ prudence.

Summing up the parliamentary results of 2020, we could mention the high-profile and significant events that took place in the Verkhovna Rada of Ukraine: the adoption of the law on the land market or “banking law”, the coronavirus pandemic, and the vicissitudes of the CCU decision. However, all of the above events are common policies that have little effect on Verkhovna Rada’s functioning as an institution. As a result, we will try to focus on more fundamental things, namely the three changes concerning the rules of operation of the Ukrainian parliament, its format, and scope of influence.

The first months of 2020 in the Verkhovna Rada were spent in an aggressive confrontation. The battle for land first unfolded when 4,018 amendments were submitted to the draft law on agricultural land circulation. The usual procedure for considering these amendments took several plenary weeks. However, an absolute record was soon set for Ukraine – more than 16,000 amendments to the draft law 2571-d (the so-called “banking law”).

Of course, the MPs who submitted hundreds and thousands of amendments did not want to make changes to the draft laws. They just wanted to block their adoption using the permitted procedural mechanisms (called a parliamentary obstruction). And although the 16,000 Ukrainian amendments do not look so staggering compared to other countries’ records, the parliamentary majority has decided to limit legal regulatory resistance possibilities. The draft law adopted in the first reading in autumn 2019 was edited and adopted as a whole. Now the draft law, which has more than 500 amendments, can be considered under a special procedure, making it impossible to block its adoption for a long time. Thus, the most effective Ukrainian parliamentary obstruction weapon was removed from the MP’s “arsenal”. Accordingly, the parliamentary minority now has fewer ways to oppose the actions of the majority.

One of the slogans of the Sluga Narodu party was digitalization. However, they were not innovators in this. Huge stacks of paper with thousands of edits printed on them and the general inefficiency of communications have long been criticized. Therefore, the topic of transition to modern technology has been raised for a long time. An example is the recommendations of the European Parliament’s Evaluation Mission.

In 2020, the digitalization of the Verkhovna Rada increased. At the beginning of the year, amendments to the Regulations on the introduction of electronic document management were adopted. The coronavirus provided the next impetus for digitalization. Politicians are more likely to catch the coronavirus, so many parliaments have been quarantined with the onset of the epidemic. However, the parliament is too important, so Ukrainian lawmakers have tried to develop remote voting rules, although this has never been implemented. Another digitalization area driven by the coronavirus has been the online format of committee meetings and sometimes conciliation councils. Some aspects of digitalization are controversial, such as remote voting, but in general, there is a digitalization trend. The rules and formats “invented” during the coronavirus in the future can be used in the normal work of the Verkhovna Rada. On the one hand, this opens the way for new opportunities and, on the other hand, for new threats to parliamentary activity.

The Agency for Legislative Initiatives continually monitors the progress (and regress) of parliamentary reform in Ukraine. We currently have an update for you for 2020. Oleksandr Zaslavskyy, Director of the Analytical Department of the Agency, told during the ‌Ukraine‌ ‌Reform‌ ‌Conference‌ ‌2020/2021‌ (#URC2020) what happened to the parliamentary reform last year.

We have the results: from 2016 to 2019, less than 42% of the reform and recommendations of the Roadmap were implemented. When the Verkhovna Rada of the ninth convocation was authorized, we suggested to the MPs to continue the implementation of the reform:

• review 52 Roadmap recommendations;
• adopt the Law “On Peculiarities of Civil Service in the Office of the Verkhovna Rada of Ukraine”;
• develop and adopt a Code of Conduct for MPs.

None of these three recommendations have been implemented in a year. However, the reform continued in some respects.

1. For example, the number of committees was reduced to 23, which was one of the recommendations.
2. Meetings of representatives of parliamentary factions and groups in the format of Jean Monnet Dialogues continued.
3. Work on the draft law “On Legal Acts” and the draft law on the opposition and the relationship between the coalition and the opposition has begun.
4. The first audit of the Accounting Chamber on the activities of the Verkhovna Rada is done. Of course, the audit results are not very positive, but the very fact of its conduct is the implementation of the Roadmap recommendation.

One of the main problems affecting the implementation of parliamentary reform is the imbalance of power. With the declared parliamentary-presidential form of governing, the real influence on the government’s formation and its policy is not the Verkhovna Rada of Ukraine, but the President. How to further implement parliamentary reform, and what mistakes should be corrected?

Read our brief for more detail. 

Since the creation of the White Paper on Ukrainian Parliamentarism, and since the beginning of the comprehensive parliamentary reform in 2016, experts and MPs have repeatedly stressed the importance of strengthening parliament’s control function. But what does that mean? And does the call for strengthening the parliament’s control function always mean increasing the constitutional parliamentary control?

For starters, a little context. Recently, MPs passed in the first reading the draft law №4131 to ensure the effective implementation of parliamentary control. It does not propose radical measures, but given the explanatory note and the comments provided by the Central Scientific Experts Office and parliamentary experts, it can be concluded that there are terminological difficulties in the discussion on parliamentary control. Comments on the draft law will be set out at the end. And first, let’s deal with the concept of parliamentary control.

In legal doctrine, “parliamentary control” is interpreted quite broadly. The most common will be the following definition:

Parliamentary control is the ability of the legislature to restrain the activities of the executive.

Restraint, however, may mean the ability to influence the actions of the executive branch. However, this effect can be different in form and intensity.

The specificity of the control function is that

“Control powers are” present “in all functions of the Verkhovna Rada and at all stages of the parliamentary process. Thus the control function is realized through two groups of powers: powers of the first group have only control value; others are complex, and equally belong to the control and other functions of the Verkhovna Rada of Ukraine”.

So we can talk about parliamentary control in the broadest sense and parliamentary control in the narrow sense. In turn, the latter means the possibility of direct influence on the results of control actions – for example, dismissal.

Researchers distinguish the following types of parliamentary control:

• party control (usually used by the opposition);
• non-partisan control (through parliamentary oversight, which can take many forms: questions, committees, hearings, etc.);
• control with the possibility of applying “sanctions” (for example, expressions of no confidence in the Government, the Prosecutor General, dismissal, etc.).

In Ukrainian legal thought, a similar division was proposed by Barabash, who divided parliamentary control according to the consequences of “mandatory” and “recommended”. For simplicity, we will use this division.

It is the “mandatory” type of parliamentary control, or control with the possibility of applying “sanctions”, which is the most radical way of influencing. Because of this, it is the subject of the Constitution. This is what the Constitutional Court draws attention to in its judgment of 10 May 2000 № 8-rp / 2000:

“The Verkhovna Rada of Ukraine exercises parliamentary control in various organizational and legal forms, but only within limits set by the Constitution of Ukraine.”

In this sense, the Constitutional Court interprets parliamentary control in a narrow sense. We cannot but agree that parliamentary control, with the possibility of direct adverse consequences (for the executive branch), can be exercised only within the Constitution. This naturally follows from the constitutional principle of separation of powers. Here we can mention such forms of parliamentary control as reporting of the Governor of the National Bank, the Prosecutor General, reports of the Cabinet of Ministers of Ukraine, etc.

In general, there should be no difficulty with mandatory parliamentary scrutiny. The bodies subject to such scrutiny must report to parliament in setting the deadline. Here you can discuss the timing of reporting and its content. It is necessary to consolidate the options for the parliament’s response to such reports.

At the same time, in a broad sense, “parliamentary control” is a component of any activity of the Verkhovna Rada. Even the adoption of laws carries a share of control (to pass a quality law, you need to have information about problems in implementing existing laws). And in this context, parliamentary control can be regulated by law. This is when we talk about the formal expression of parliamentary control.

But what does parliamentary scrutiny include in a broad sense? And what forms can be offered? In addition to parliamentary inquiries, parliamentary hearings, and “government question hours,” we should focus on such a seemingly insignificant way of parliamentary control as informing.

Control, in this case, is primarily the possession of information. Having sufficient information on the implementation of laws, problems, and implementation of policies, the Verkhovna Rada can influence public authorities through legislation changes.

In addition, the dual nature of parliamentary control is clearly manifested here: 1) as state control and 2) public control. Subjects of parliamentary control, having all the hallmarks of state oversight institutions, also influence violators of the law through such instruments of public scrutiny as public opinion and widespread media coverage. Even hearings in plenary or committee meetings of information from any public body can be considered parliamentary scrutiny in a broad sense.

Information is an important part of parliamentary scrutiny. Many researchers have written about increasing the role of parliamentary control without “sanctions”.

Parliament should communicate with other government agencies and request information and the presentation of this information from various government agencies.

Such information helps the Verkhovna Rada to understand current issues, the state of implementation of laws.

Coverage of public authorities in parliament makes their work more transparent and public reporting processes systematic. We can talk about creating a certain culture of reporting by public authorities to the public and submitting such reports to the Verkhovna Rada through the information procedure.

However, such measures’ effectiveness largely depends on the organization of work (especially on the design of the reporting system) within the Cabinet of Ministers. The key here is the reform of public administration. In this context, close cooperation between the government and parliament is needed. This implies clear requirements for public authorities to report to the public and the Cabinet of Ministers. The Verkhovna Rada can play the role of a catalyst in this process.

It is probably necessary to legislate the procedure of informing the state bodies of the Verkhovna Rada or its committees. However, the current provisions of the Rules of Procedure allow doing so without further detail. It all depends on how determined the committees are to communicate with the relevant bodies, receive and process information from them, and the general understanding of the MPs of such actions priority. With the advancement of public administration reform, committees must organically come to the principle of “more intensive control over specific issues”. However, for supporters of the positivist concept of law, the following can be noted: the Rules of Procedure can enshrine the process of initiating the information procedure, set reasonable deadlines for the preparation of such information, oblige the Verkhovna Rada or the committee to form a clear list of issues. Standard forms of reporting should also be considered so that each body understands what may be required of it and documents its activities in a pre-agreed manner.

Another aspect that confuses terminology in parliamentary control is the “reporting” of a number of independent institutions that have a special legal status. For example, the National Commission for State Regulation of Energy and Utilities (the Regulator). The Verkhovna Rada only indirectly participates in the formation of this body through the appointment of part of the tender commission and has no leverage over the Regulator’s dismissal.

In cases with the Regulator and a number of other institutions, we have terminological confusion in the context of parliamentary control. The fact is that the Regulator must report annually to the Verkhovna Rada, but the latter cannot influence it in any way due to consideration of this report. So technically, it’s not reporting. It’s just informing. The purpose of such information is clear: the Verkhovna Rada should know whether the legal framework is being implemented effectively and what are the problems in this area, as well as to draw the attention of the public and the media to the activities of the Regulator. Therefore, it cannot and should not directly influence the Regulator, but it can influence the legislative regulation of the area in which the Regulator operates. What is important in such cases for effective control? Forms of reporting, constant communication, obligatory consultations with these bodies in case of changes in the sectoral legislation are coordinated with each such independent body.

It is necessary to mention the peculiarity of parliamentary control in the presence of a mono-majority in parliament. According to Duverger, the executive and legislative branches, government and parliament, are only constitutional facades. In reality, only parties exercise power.

In a parliamentary mono-majority case, the parliament (represented by the majority) has all the necessary levers for control through party mechanisms. At the same time, provided there is a majority, parliamentary control is informal, hidden from the general public and reduced to the party’s control over the government.

In other words, the majority has all the means to influence the government. In our current context, this means that claims that parliament does not have sufficient mechanisms to influence the government or individual ministers are not true (although weak party discipline may complicate such control). This, of course, does not preclude the need to improve the legal framework for parliamentary scrutiny and to launch a new round of discussions on guarantees of participation in parliamentary scrutiny by the opposition.

The draft law proposes to set specific reporting dates for some government agencies. Such an initiative can be supported, although there is no urgent need to change these provisions. Because setting specific reporting dates could be part of informal regulation.

The draft law proposes to expand the participation of committees in the consideration by the Verkhovna Rada of the report of the Cabinet of Ministers of Ukraine on the progress and results of the implementation of the approved Program of Activities of the Cabinet of Ministers. This approach is justified because it improves the quality of control over the activities of the government. However, the intensity of measures and their quality remains subject to internal regulation. In short, it will depend only on the committees themselves whether the quality of control over the government will improve. After all, it is, first of all, about development by committees of internal standards of estimation of this program. It would be appropriate to organize some training for the staff of the committees’ secretariats (perhaps even joint training with representatives of the Cabinet of Ministers and ministries).

The draft law proposes to detail the provisions on consideration by the Verkhovna Rada of reports and reports of the Cabinet of Ministers of Ukraine. One of the novelties: The Verkhovna Rada is invited to provide an opportunity to formulate recommendations for the Cabinet of Ministers.

The draft law proposes to detail the procedure for reviewing the reports of several bodies on which the Verkhovna Rada makes personnel decisions (Prosecutor General, Chairman of the Security Service, Chairman of the National Bank, Antimonopoly Committee, State Property Fund, Accounting Chamber, Commissioner for Human Rights). Given that the rules are duplicated, it would be appropriate to create a single generalized rule that would regulate in detail the process of reviewing these reports and add options for decisions that may be taken as a result of the review. The alternative proposed in the draft law is slightly contrary to the legal technique and overloads the Rules, but does not pose a danger.

The most controversial in the draft law is Article 232-8, which provides for the consideration of reports, reports, and other government agencies and officials’ information. And although we noted above that parliamentary scrutiny in a broad sense may include information procedures, the draft law’s way of proposing this procedure is questionable. It is necessary to distinguish between reporting and informing because, according to the reporting results, the Verkhovna Rada can influence the reporting body. According to the results of informing the Verkhovna Rada can only indirectly influence the body’s activities through amendments to legislation. That is, those bodies to which the Verkhovna Rada has no relation cannot report to the Verkhovna Rada. Even if they present their annual report to the plenary, in parliamentary scrutiny, such a report will be considered informing. This raises the question of whether it is appropriate to include the concept of “report” in this rule. Therefore, in our opinion, this part needs significant refinement, as it does not follow from the text of the bill whether the MPs understand this difference. And the creation of additional terminological difficulties seems to be typical for the legislative process but still superfluous.

It seems important to carry out explanatory work on parliamentary control’s nature, its forms, and importance among MPs. The parliament has sufficient powers to exercise effective parliamentary control, especially given the fact that there is a mono-majority. The issue is to change MPs and committees’ patterns of work and increase interaction with the executive branch.

As a result, we have a draft law with a beautiful name, a noble purpose, without special “hardships” and special benefits.

We hope that this draft law will be a starting point for discussing the essence of the parliament’s control function. One could start (as always, in theory, and, as never before, in practice) by examining the control function’s implementation and identifying the main intra-parliamentary barriers to parliamentary control in the broadest sense.

The Accounting Chamber conducted a financial audit of the Verkhovna Rada. This is the first parliamentary audit in the history of Ukrainian independence. We have analyzed the report based on the audit results and are ready to share the main conclusions.

The audit was conducted for the period 2013-2019. Experts found violations of the order of use of funds and/or inefficient use of funds in most areas. Nevertheless, the Verkhovna Rada Staff fulfilled its main goal – to ensure the Verkhovna Rada of Ukraine’s activities.

A total of UAH 7 billion, 702.2 million, was used in 2013-2019. The main item of expenditure of the Verkhovna Rada was wages and salaries: 70% of current spending (UAH 5 billion 426 million) was spent on it.

The audit also revealed significant legal gaps in the Verkhovna Rada activities, which resulted in violations of the procedure for the use of funds. The main legal gap is the Regulations’ approval on the Staff of the Verkhovna Rada (a document regulating the activities of the Office) by order of the Chairman of the Verkhovna Rada. However, Art. 7 of the Rules of Procedure of the Verkhovna Rada requires that this provision must be approved by a resolution of the Verkhovna Rada. As a result, the Office is not a legal entity and cannot independently carry out financial and logistical activities to ensure Verkhovna Rada’s work. Instead of the Office, such support is provided through its subdivision – the Office of the Verkhovna Rada, which is a legal entity.

Among other legal gaps, it can also be noted that a significant part of the VRU’s material base is not designed correctly. In particular, the procedure of state registration of real rights to immovable property was not carried out in respect of the following property:

• 198 of 326 buildings;
• 231 out of 330 engineering structures;
• 13 out of 49 land plots do not have title documents.

The Accounting Chamber negatively assessed the transparency and accountability of the Office. In 2014-2017, the Verkhovna Rada did not have approved estimates! This is a violation of Part 4 of Art. 7 of the Rules of Procedure of the Verkhovna Rada. When the estimates were approved (2013, 2018, 2019), the Verkhovna Rada still did not consider reports on their implementation. That is, MPs did not control the Office’s activities in the study period (2013-2019). The Internal Audit System of the Office also received a negative assessment from the Accounting Chamber.

The audit focused mainly on the financial side of the VRU but partially covered some aspects of the parliament’s units’ direct activities. This applies, in particular, to the Institute of Legislation. The Accounting Chamber pointed out that 78.9% of people who studied in postgraduate and doctoral studies in 2013-2019 were not MPs of Ukraine, representatives of the Office and local governments, although these categories of people should be directed to the methodological assistance of the Institute.

The recommendations provided by the Accounting Chamber partly reflect the recommendations of the Roadmap on Internal Reform provided by the European Parliament’s Needs Assessment Mission to the Verkhovna Rada.

For example:

1. The 35th recommendation said to conduct an audit of the Verkhovna Rada – accordingly, it was finally fully implemented.
2. The 36th recommendation of the European Parliament Mission is about the creation of a single set of internal rules that would regulate the work of the Office. The Regulation on the Staff of the Verkhovna Rada, which the Accounting Chamber recommends to approve by a resolution of the Verkhovna Rada, may become such a set of internal rules.
3. The 37th recommendation of the European Parliament Mission is about the consolidation of all administrative units of the Verkhovna Rada into the structure of the Office. Proper approval of the Regulations on the Staff of the Verkhovna Rada and registration of the Office as a legal entity (as recommended by the Accounting Chamber) will allow for such consolidation.

The trend for “new faces” is decreasing! And this, on the one hand, is good news!

The results of the survey of the Sociological Group Rating showed that the majority of respondents (60-70%) believe that it is more important for parties at the local level to have a strong local leader than well-known national, experienced politicians than “new faces”, a good team than a strong leader. One way or another, political players are changing, and the authorities are being “renewed”. In particular, Agency for Legislative Initiatives counted that 80.4% of “new faces” entered the Verkhovna Rada after the last parliamentary elections in 2019. These are people who have never received a mandate as a member of parliament before.

Experience shows that the coming to power of “new faces” is not the same as radical positive changes in the country, the eradication of corruption, and economic growth. Of course, new people need to appear in the political process. But we insist that politics must be a professional activity. To become an effective manager, you need to gain years of experience, earn credibility in society, work first for your community, and then reach the national level.

In Ukraine, it is necessary to build a system for the education of political leaders and the formation of strong political parties so that this smooth growth of politicians takes place in a professional environment. That is how we finally could have the opportunity to choose professionals in their field – politics, and not just “new faces” who were previously engaged in a completely different area.

We are working to make society aware of this. On the other hand, experienced leaders in Ukraine are also often not professionals. And that needs to be changed too.

Svitlana Matviienko, Chairwoman of the Board of the Agency for Legislative Initiatives and Director of the Ukrainian School of Political Studies, spoke on Ukrainian Radio about why politics should be a professional activity and why we shouldn’t believe only in “new faces”.

The trend for “new faces” is decreasing! And this, on the one hand, is good news!

The results of the survey of the Sociological Group Rating showed that the majority of respondents (60-70%) believe that it is more important for parties at the local level to have a strong local leader than well-known national, experienced politicians than “new faces”, a good team than a strong leader. One way or another, political players are changing, and the authorities are being “renewed”. In particular, Agency for Legislative Initiatives counted that 80.4% of “new faces” entered the Verkhovna Rada after the last parliamentary elections in 2019. These are people who have never received a mandate as a member of parliament before.

Experience shows that the coming to power of “new faces” is not the same as radical positive changes in the country, the eradication of corruption, and economic growth. Of course, new people need to appear in the political process. But we insist that politics must be a professional activity. To become an effective manager, you need to gain years of experience, earn credibility in society, work first for your community, and then reach the national level.

In Ukraine, it is necessary to build a system for the education of political leaders and the formation of strong political parties so that this smooth growth of politicians takes place in a professional environment. That is how we finally could have the opportunity to choose professionals in their field – politics, and not just “new faces” who were previously engaged in a completely different area.

We are working to make society aware of this. On the other hand, experienced leaders in Ukraine are also often not professionals. And that needs to be changed too.

Svitlana Matviienko, Chairwoman of the Board of the Agency for Legislative Initiatives and Director of the Ukrainian School of Political Studies, spoke on Ukrainian Radio about why politics should be a professional activity and why we shouldn’t believe only in “new faces”.

The abolition of parliamentary immunity was put forward by the representatives of the “Sluga narodu” and the President himself, almost the main achievement of the last year. But the recent story of a bribe to Oleksandr Yurchenko, an MP of “Sluga narodu”, raises doubts about the reality of the abolition of immunity, as it took two days of public pressure to open criminal proceedings, which is a threat to the political party’s ratings ahead of the local elections. When the scandal could not be quietly silenced, the MP was expelled from the faction and promised without investigation and trial that he would “definitely go to prison”.

What’s wrong with revoked parliamentary immunity? We answer by analyzing the changes to the legislation that were adopted at the end of 2019.

How was it before? The old pre-trial procedure of bringing an MP to criminal responsibility provided for the following stages:

1. The opening of proceedings against the MP took place in the general order – any prosecutor could do it.
2. Investigative actions in the form of search, detention, an inspection of items, violation of the secrecy of correspondence, telephone conversations, application of other measures, including covert investigative actions that restrict the rights and freedoms of a member of parliament by law, could be carried out only if the Verkhovna Rada agreed to bring the MP to justice.
3. Detention, arrest, or criminal prosecution of the MP could be carried out only with the consent of the Verkhovna Rada. For this:

• The Prosecutor General filed motions for detention, arrest, and criminal prosecution;
• The nominated MP provided explanations to the Standing Committee;
• The Standing Committee considered the motivation for the submission and prepared an opinion:
  • In the absence of sufficient evidence to substantiate the submission, the Speaker of the Verkhovna Rada could return the submission to the prosecutor’s office together with the opinion of the committee;

• The Verkhovna Rada then had to consider the committee’s opinion under a special procedure. If a majority of MPs voted for the decision, agree to start the MP’s prosecution process.

Current procedure. Amendments to the legislation, including the Constitution, excluded the Verkhovna Rada from the process of making such decisions, concentrating procedural powers in the hands of the Prosecutor General. Now (pre-trial) procedure of bringing the MP to criminal responsibility provides:

1. Only the Prosecutor General can initiate proceedings concerning a member of parliament.
2. Detention or house arrest, search, covert investigative (search) actions can be carried out only with the Prosecutor General’s consent. And at the consideration of the corresponding petitions (except for search and secret investigative actions), the MP has to be present.

The Prosecutor General’s monopoly on initiating proceedings and approving an important part of investigative actions significantly limits independent anti-corruption bodies’ capabilities – the National Anti-corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO). In fact, in investigations of MPs, these independent bodies depend on the Prosecutor General. The logic of creating a special vertical of anti-corruption bodies – NABU, SAPO, Anti-Corruption Court, is that these bodies are minimally dependent on other state bodies (including the Prosecutor General’s Office), as anti-corruption bodies are engaged in combating corruption in other state bodies. In the scandal with a bribe for the MP Yurchenko, NABU had to persuade Prosecutor General Iryna Venediktova to start proceedings publicly. Before that, the Prosecutor General did not see sufficient grounds for handing over the suspicion.

Is the immunity, which was so happily announced by the representatives of the “Sluga narodu” party, abolished? There has always been the possibility of prosecuting MPs. Yes, earlier, this required the consent of the Verkhovna Rada. In fact, out of 22 attempts to abolish the parliamentary immunity in the existing constitutional and legal framework for the VII and VIII convocations, 12 were successful – the MPs lost their parliamentary immunity. In some cases, voting in the session hall failed (6 cases). In three cases, the submission was returned to the Prosecutor General’s Office, and in another case, the Prosecutor General withdrew his submission.

The prosecutor’s office has problems with the preparation of submissions, which have been repeatedly “rejected” by the Standing Committee of the Verkhovna Rada (cases against Oleksandr Vilkul, Dmytro Kolesnikov, Serhiy Dunayev, and Oleksandr Ponomaryov). At the same time, it is difficult to say whether the problems were in the un/professionalism or non-/involvement of the Regulatory Committee or the prosecutor’s office and the courts.

Currently, the number of entities that decide on the possibility of bringing an MP to justice has decreased. Now the Verkhovna Rada’s consent is not required, and the powers are concentrated in the hands of the Prosecutor General. But the Prosecutor General is not independent. The President appoints him/her in agreement with the Verkhovna Rada. In Ukrainian practice, the Prosecutor General has always been a person of the President. In conditions when the President has a majority in the Verkhovna Rada, the Prosecutor General is even more dependent on the President. And it seems that the above-described powers of the Prosecutor General, as well as many of his other powers, under the current system of prosecuting MPs, will continue to be used as a tool to support friends and punish enemies.

After the first quarter of the Verkhovna Rada, the figures showed that the “turbo mode of the parliament” is a myth! And the results of our two monitorings for 1-2 and 3 sessions of the parliament only confirmed this. The tsunami of “legislative spam” is declining, the number of laws passed in the first year of the ninth convocation did not differ significantly from predecessors – members of parliament of the VIII convocation.

In particular, for the period of 1-2 sessions of the IX convocation (from 08/29/2019 to 01/17/2020) a total of 155 laws were adopted. During the same calendar period of the VIII convocation (from 11/27/2014 to 04/24/2015), MPs managed to pass not much less – 140 laws even though the Verkhovna Rada of the VIII convocation spent the first month of work on forming a coalition.

The third session of the new parliament seemed completely different, and therefore the annual “results” of the Verkhovna Rada are even lower than their predecessors in quantitative terms. But we emphasize that the annual calendar period of the two convocations in this matter is methodologically incorrect to compare – quarantine and pandemic are a significant error for analysis.

In general, the effectiveness of the work of the Verkhovna Rada cannot be measured by the number of bills, adopted laws, and hours spent in the session hall. It is difficult to distinguish between quantitative indicators and the quality of parliamentary work. Moreover, there can hardly be a system of clear KPIs in parliament to measure its performance.

The coordinated functioning of the state mechanism, which is fundamental for the country’s development, depends not on the fact that a certain law has been adopted but on all decision-making bodies’ coordinated interaction.

The state is a system. And a democratic state means procedures and their observance to keep the system balanced.

“Legislative turbo mode” and democracy – these concepts are incompatible, in principle. The procedure for adopting the law is described in the Rules of Procedure. And it involves a rather long process of discussion, refinement, weighing all the pros and cons. Any attempt to speed up this procedure, to fulfill the “five-year plan” for the number of laws in one parliamentary session will lead to a violation of the Rules of Procedure and, consequently, of the declared democratic principles. This is not even about the quality of bills produced by the subjects of the legislative initiative.

The eighth and ninth convocations operated at the marginal capacity of the law-making process. This is not a feature of the new parliament, but only a marketing move, which was coined by the apt name “turbo mode”. The “turbo regime” of the parliament did not happen – and it’s for the best.

On Thursday, July 30, Svitlana Matviienko, Chairwoman of the Board of the Agency for Legislative Initiatives, took part in presenting the results of the expert survey “Political Quarter: Summer 2020” conducted by the Ilko Kucheriv “Democratic Initiatives” Foundation.

During the event, the speakers discussed the main trends of the political process in Ukraine. Svitlana Matviienko spoke about the observation of the Agency for Legislative Initiatives regarding the work of the parliament and the president. We publish in full the speech of the Chairwoman of the Board of the Agency for Legislative Initiatives.

“There are some positive trends. However, not without a “BUT”. In the first half of the year, there was a noticeable decrease in the number of registered draft laws. That is, the amount of what Pete Cox’s Roadmap calls legislative spam or “legislative tsunami” has decreased. A total of 1,178 draft laws were registered during the 1-2 sessions of the Verkhovna Rada of the IX convocation. Accordingly, the number of registered draft laws decreased by almost a third compared to the same calendar period of the VIII convocation.

During the third session, 13% fewer draft laws were registered than during the first two sessions. Given that during the first two sessions of the IX convocation, almost a third fewer draft laws were registered than during the same period of the VIII convocation. It is tempting to talk about some dynamics of reducing the flow of draft laws. However, it is noteworthy that, along with the decrease in the number of parliamentary draft laws over the past six months, the number of registered government and presidential draft laws has also decreased. And such a synchronous decrease can rather be explained by a long socio-political lockdown during the strict quarantine.

Another positive trend. The share of draft laws adopted in the second reading has increased. In the first and second sessions, this share reached 74% compared to 38% for the same period in the VIII convocation. However, the trend was unstable, and in the third session, their share fell to 49%. We hope that this is due to the peculiarities of the work of the Verkhovna Rada during quarantine restrictions.

Along with this, consideration of draft laws started to take longer. Why is this good? Because the laws passed in the first reading and in general – almost guaranteed – will be of lower quality in terms of legal technique or will not consider all stakeholders’ positions. As a result, it will affect their implementation and effectiveness. Passing almost 75% of the approved draft laws through 2 readings (we don’t mention the third one) is at least a precaution against making people laugh (or rather resent) in a hurry.

As for the turbo mode, which is still popular to mention among the majority. Six months ago, it was already obvious to us and all those who monitor the parliament’s work that this mode is not so “turbo”. As they say: everything is known by comparison. During the first two sessions (read six months) in the ninth convocation, 155 laws, or 13% of registered resent were adopted. In the VIII convocation for the same calendar period, 140 laws, or 9% of the registered ones, were adopted. At the same time, we must remember that the majority began to pass laws (including on amendments to the Constitution) on the first day, immediately after the opening ceremony, and taking the oath. While the MPs of the VIII convocation spent at least the first month on negotiations, working out a coalition agreement and forming the government. So, forget about the turbo.

We did not compare the 3rd session of the ninth convocation with the same period of the VIII session, because this would be irrelevant given the extraordinary circumstances in the form of strict quarantine. The parliament lost two working months.

During the first two sessions, it was noticed that the percentage of adopted laws, the subject of the legislative initiative of which is the government (17% vs. 35% in the VIII convocation) decreased. This trend may indicate a weakening of the role of government in shaping public policies. It also harms the principle of unity of decision-making.

During the 3rd session, the share of the accepted governmental projects is insignificant. Only 7 government draft laws were passed. Is this because the government has a weak position in policy-making, completely subordinate to the President’s Office? Or is it because the government does not see a need to be an independent player, instructing MPs to register the necessary draft laws? Both possible explanations are disappointing. There is a clear distortion of the constitutionally established system of checks and balances against the concentration of powers in one power entity in Ukraine. However, the tendency to weaken the government in the decision-making system is contrary to global trends.

Volodymyr Zelensky, of the last four presidents, registered the largest number of draft laws in his first year – 76 (or 4% of all registered this year). His predecessors exercised the right of legislative initiative, respectively: 48 times – Poroshenko, 39 – Yanukovych, 50 – Yushchenko. The relative share of legislative initiatives of other presidents was not more than 2%. At the same time, the rate of adopted presidential draft laws during Zelensky’s first year of a presidency is twice lower – 38% – compared to previous presidents, where the share of adopted laws ranged from 76% to 82%. This situation is rather strange because the president had his “mono-majority” in parliament for the most calendar year, which became a unique situation in Ukrainian history. Given the frequent personnel changes during the year, as well as the results of a study by the Sociological Group “Rating”, this situation may indicate the active use of the model “good President – bad MPs / officials”, which in turn, leads to a positive image only of the president. Although it no longer helps. Another explanation may be that the “Sluga narodu” party was formed virtually and from people who were not connected with politics in any way before the election. After a while, this affected the weak factional discipline and led to multiple divisions.

According to Article 94 of Ukraine’s Constitution, the president must within 15 days sign the law adopted by the Verkhovna Rada or return it with his proposals. The average rate (median) of signing bills by Zelensky was 9 days, which is the fastest rate among Ukrainian presidents. For the rest of the presidents, this figure was 15 days. However, some of the laws were signed in violation of the 15-day deadline. Thus, Zelensky signed 13% of all adopted laws in violation of the deadline (for other presidents, the figure ranged from 8% to 17%). And while for many, such a violation may seem insignificant, it is still a direct violation of the Constitution, which may be grounds for declaring laws unconstitutional. It is also worth mentioning the situation with three draft laws that Volodymyr Zelensky “inherited” from Petro Poroshenko: №0975, №0976, №0977. These draft laws were neither signed nor vetoed by the new president for much more than 15 days, which directly violated the Constitution. Zelensky dragged on time until the new parliament was elected to prevent these laws from being passed”.

You can read more about the work of the parliament and the president of Ukraine in the other articles of the Agency for Legislative Initiatives.