March 8 is not a holiday of beauty and flowers. This is a day reminiscent of women’s long struggle for their rights. The Constitution of Ukraine guarantees all citizens equal constitutional rights and freedoms and equality before the law. However, gender equality is still a formal concept, enshrined in documents but not enforced in real life.

Especially gender balance is still lacking in the security and defense sector, where women are rarely able to hold leadership positions and don’t have the trust and respect of male colleagues.

The Agency for Legislative Initiatives is implementing the Parliamentary Accountability for the Security Sector in Ukraine project in partnership with the Canadian Parliamentary Centre, the Canadian Ministry of International Affairs, and the Peace and Stabilization Operations Program (PSOPs). One of the project’s essential components is researching the gender aspect in the security and defense sector.

We decided to delve deeper into the topic before International Women’s Day and ask parliamentarians, women in the armed forces volunteers about the problems of gender equality in the security and defense sector and how they can be solved.

The views expressed in this publication reflect the personal beliefs of the speakers and do not necessarily reflect the views of the Agency for Legislative Initiatives.

The Prosecutor General’s Office of Ukraine handed over the first notice of suspicion to the member of parliament for “button pushing”. This is the first attempt in Ukraine history to bring an MP to justice for impersonal voting.

Moreover, bringing a parliamentarian to justice may lead to the termination of his powers. According to Article 81 of the Constitution of Ukraine, a Member of Parliament’s powers are terminated prematurely, particularly in the case of “coming into force of a conviction against him”.  That is, now, in the story with the first notice of suspicion of “button pusher”, the court is to decide.

Besides, MPs have “button pushed” long before the first notice of suspicion from the Prosecutor General and can do it further. After all, their guilt still needs to be proved in court. And this is a rather long process. Besides, evidence is needed. And the recent story with videos that recorded “button-pusher” during the vote for Minister of Science and Education appointment proves – the evidence may “disappear”.

It is necessary to have a “Plan A” – a mechanism that will make impersonal voting impossible for MPs. At the beginning of 2021, the Verkhovna Rada began active talks on overcoming “button pushing”. Verkhovna Rada Speaker Dmytro Razumkov announced some changes that could help eradicate impersonal voting. In particular:

1. Vacant seats reserved for MPs from the temporarily occupied territories will be disconnected from the Rada system;
2. All cards of MPs will be tied to a specific place;
3. Additional video cameras will be installed in the hall to record the voting;
4. The possibility of changing the Rules of Procedure is considered so that the “button pushers” could be suspended for several weeks;
5. It is planned to transfer the parliament to the Rada-4 system, but funds are needed for this.

Will these innovations help prevent “button pushing”? And is there another, easier way?

In the Agency for Legislative Initiatives, we talked about this with the head of the NGO “Electronic Democracy”, ex-adviser to the Chief of the Apparatus of the Verkhovna Rada of Ukraine, and the USPS Alumnus Volodymyr Flonts. During the VIII convocation of the Verkhovna Rada, the expert, and his team spent six months researching the problem of “button pushing” and testing possible solutions. We will talk about one of these options, which also has its drawbacks, but it can work already – without additional funds and time.

“Button pushing” is not so much a matter of impersonal voting. Because in the Verkhovna Rada, an MP always votes for himself for the first time, no matter where he/she sits, no matter what card he/she votes with. The problem is repeated voting when the MP has time to press as many buttons as possible in 10 seconds while voting goes. It is from this that we must proceed.

Volodymyr Flonts says that it doesn’t matter where an MP voted from, if he did it once. Therefore, all allegations about cards are a shift of focus to another topic and not a solution to one-time or multiple voting. The issue of “button pushing” is exclusively about “once or many”. Not “by what card”, “from what place”, “in what way”, “under the cameras or not”.

Volodymyr Flonts says: “The proposed changes are cosmetic. They do not solve the problem but only create restrictions for MPs. Before, if the MP’s desk is temporarily out of order, the button is stuck, the MP could insert his card into the next desk and vote. The rights of MPs did not decrease”.

Now, if you attach each MP to a particular console, then there is a restriction of parliamentarians’ rights. MP, for example, will be able to apply to challenge the results of a vote because his button did not work, and he could not vote. Then there is a possibility that the results of the voting will be questioned.

The decision to disconnect some seats from the system and allow MPs to vote exclusively from their seats may prove ineffective. Instead, much more potential harm than good can be expected from it.

It is necessary to introduce such a voting mechanism, which would make it impossible to vote repeatedly.

The Rada-3 electronic voting system is established in the Ukrainian parliament. It counts how many and which buttons the MPs pressed to vote for a particular bill.

Now the voting is as follows: within 10 seconds, the MP must press one of the buttons on the electronic voting machine – “for”, “against” or “abstained”, after which the electronic system counts each press of the button. Thus, during these 10 seconds, one MP can run through the plenary hall pressing buttons – and all these votes will be counted.

And here – the problem of repeated voting is almost wholly solved without disconnecting cards, installation of cameras, and anything else.

The only question is, what to do with the second hand of the MP? After all, the most cunning parliamentarians will be able to press two buttons – their own and someone else’s – during the voting.

According to Volodymyr Flonts, it is already placed in the electronic voting machines in Verkhovna Rada. But it is not turned on in the Verkhovna Rada.

The principle of voting using the touch and mechanical buttons is as follows: within 10 seconds, the MP must press the voting button with one hand and the other hand hold on the touch button. The buttons are placed on the electronic voting machine so that you can not press both with one hand.

Thus, both hands of the MP will be occupied. It is the end of the story with the possibility of multiple voting because there will be no physical opportunity to vote several times. It is proved by Kyiv City Council’s example, where since the introduction of the touch button (2015), “button pushers” have not been detected.

There were several generations of electronic voting systems in the Verkhovna Rada. All of them are developed in Ukraine. The first Rada was introduced in 1990, the second – in 1993, and Rada-3 – in 2002. This system still functions in the Ukrainian parliament.

After the development of the third generation, scientists immediately began working on the next one. But this invention is not so new either, because, for example, the Kyiv City Council has been operating the Rada-4 system since 2015.

The head of the NGO “Electronic Democracy” notes that “Rada-3” and “Rada-4” differ fundamentally only in the size of the monitor. In the third one – black and white screen, small font, inconvenient to read. In the fourth one – a large and color screen. The developers wanted to make a touch screen additionally, but it is not provided in the current version of “Rada-4”.

Yes, when Rada-3 was made, it had only a mechanical voting button. In 2008, the Rada-3 installed in parliament was retrofitted with a touch button instead of changing the entire system. But this second button wasn’t simply turned on.

During the VIII convocation of the Verkhovna Rada, the two-button voting mechanism was tested. All the nuances have been corrected. There was a real chance to introduce a principle that would make “button pushing” impossible: when an MP has to hold the voting button with one hand and the touch button with the other hand within 10 seconds.

However, it was decided to introduce new rules not at the last session of the VIII convocation but for the new Verkhovna Rada. As a result, nothing has changed. On the day when a public test of the Rada-3 system with a touch button was scheduled, the Security Service of Ukraine (SSU) and State Bureau of Investigation (SBI) detectives entered the Verkhovna Rada and blocked the work of the parliament’s computer center. A new mechanism has not been introduced.

The Agency for Legislative Initiatives has analyzed more than 200 referendums held in 25 European countries since 1992. Ukraine has signed an Association Agreement with the EU, has a visa-free regime, and the constitutional intention to integrate into the EU and NATO. It means that it is very likely that topics on which referendums have taken place in other European countries will one day be the subject of a referendum in Ukraine. So you should pay attention to them.

International issues related to the European Union are most often put to a referendum: for example, joining the EU by one more country or approving another agreement. Therefore, it can be assumed that Ukraine’s accession to NATO and the signing of an agreement with the EU have a good chance of being put to a referendum. Yes, Ukraine’s course towards NATO and the EU is enshrined in the Constitution, but historically, the Ukrainian Basic Law has been constantly changed in one part or another.

The second block of questions that are most often put to a referendum are issues related to family values, namely different variations on two topics:

• abortions (prohibition/permission, when, under what circumstances abortion can be performed)
• marriage (permission / prohibition of same-sex marriages).

Currently, abortions are allowed in Ukraine, and same-sex marriages are not. However, the intensification of right-wing conservative, traditionalist, or religious-political groups on the one hand or the activation of left-liberal political groups can lead to the actualization of these topics and, consequently, their submission to a referendum.

In Europe, referendums are held on very different issues, which can be grouped into 11 thematic categories:

These include the death penalty, other justice or tax issues. It is also interesting to note that several financial issues are often put to a referendum.

Legalization/prohibition of the free carrying of weapons, prostitution, gambling, and soft drugs seem to be ideal topics for referendums, as they relieve politicians of the responsibility to make the final decision on such sensitive issues. However, in none of the 25 states analyzed, these topics were put to a referendum. Thus, it can be assumed that in Ukraine, they will also not be the subject of a referendum in the nearest future.

The number of referendums is also interesting. Some say that there will be very few of them in Ukraine, while others, on the contrary, are afraid of the “storm” of popular initiatives. The number of referendums in European countries varies significantly from country to country. Some states have held only a few referendums in almost 30 years, and there are countries where the number of national referendums is measured in tens. Therefore, it is difficult to determine how frequent referendums in Ukraine will be, based on international experience, even though holding a referendum is a relatively expensive event. If we talk about the 25 states studied, then the number of referendums can be grouped into the following categories:

1. A small number of referendums (1-4 referendums): Austria, Croatia, Czech Republic, Great Britain, Finland, Greece, Norway, Portugal, Spain, Sweden. Only ten countries.
2. An average number of referendums (5-10 referendums): Bulgaria, Denmark, Estonia, France, Hungary, Iceland, Latvia, Poland, Romania. Only nine countries.
3. Many referendums (11+ referendums) (most – 47 in Italy): the Netherlands, Ireland, Italy, Lithuania, Slovakia, Slovenia. A total of 6 countries.

Thinking about same-sex marriage and the abortion ban, we can assume that these are the problems of developed Western European democracies. Ukraine, for which the most pressing issues at present are peace, security, and territorial integrity (and the preservation of sovereignty in general, if we speak in a broad context), is far from them.

Therefore, we can look at the experience of countries more like Ukraine, at least in terms of the democracy index. We additionally looked at the experience of the following countries: Northern Macedonia, Albania, Armenia, Montenegro, Georgia, Serbia, Moldova.

All these states have had a small number of referendums (up to 5 in each country since 1992). Indeed, issues related to family values were not put to a referendum in any of these states. As in European countries, popular topics are international issues – joining NATO and agreeing to international treaties. Another block of issues put to a referendum in these states is the constituent issues – the adoption of constitutions, the approval of national symbols, or forms of government.

Thus, summarizing the review of international experience, we can draw the following conclusions for Ukraine:

• Initially, the topics of referendums in Ukraine will be international treaties and, possibly, issues of a constituent nature;
• If Ukraine is moving towards democracy and economic development, then after a while, the issues of abortion or same-sex marriage may be put to a referendum;
• Depending on the experience, referendums may remain exotic for Ukrainian political life or enter political weapons’ arsenal. If referendums would be used frequently, then their topics will be quite diverse – pensions, medicine, insurance, the electoral system, citizenship, the number of members in parliament, president authority, funding of political parties – these and many other topics will be put to referendums.

What are the purpose and main tasks of the draft law “On the peculiarities of reforming the enterprises of the military-industrial complex of the state form of ownership” (№3822)?

As stated in the preamble, the main purpose is to determine the features of legal, economic, and organizational regulation of the transformation of the State Concern “Ukroboronprom” into a joint-stock company, state unitary enterprises, including state-owned enterprises that are part of “Ukroboronprom” – into companies, as well as the introduction of a corporate model of management of state-owned objects in the military-industrial complex (hereinafter – MIC).

In other words, draft law №3822 introduces the idea of ​​expanding the powers of Ukroboronprom as a managing economic structure in the defense industry together with expanding the powers of its Supervisory Board.

The project regulates how the Concern and its members should be reformed in three stages:

• the first stage of reform involves preparing the members of the Concern for reorganization.
• the second stage of reform envisages the formation of companies in two alternative ways: the transformation of a member of the Concern into a company in the organizational and legal form of a joint-stock company or limited liability company; or joining the members of the Concern to another participant and simultaneously transforming such participant into a business company according to a special procedure.
• the third stage of reform envisages the transformation of the Concern into a joint-stock company, which will include the following actions:
  • The Cabinet of Ministers of Ukraine must decide on the reorganization of the Concern through its transformation into a joint-stock company and approval of the charter;
  • On the basis of the decision of the Cabinet of Ministers of Ukraine – introduction into the authorized capital of the joint-stock company of blocks of shares (shares) of the companies formed at the second stage;
  • With the Cabinet of Ministers’ consent based on the joint-stock company’s decision, the shares of companies formed in the second stage may be contributed to the authorized capital of another company formed as a result of the transformation of a Concern.

CSEO believes that the draft law №3822 needs to be refined from terminology to conceptual provisions that could lead to negative consequences. The conclusion consists of 12 points, which indicate the creation of special conditions for Ukroboronprom and the provision of unjustified benefits to enterprises or officials of Ukroboronprom, which are not in accordance with applicable law.

“Such a disposition of state property creates opportunities for the actual privatization of state-owned defense enterprises and companies formed on their basis outside the Law of Ukraine “On Privatization of State and Municipal Property” – it is stated in conclusion.

Besides, CSEO recommends that the parliament obtain an expert opinion from the Cabinet.

On January 20, 2021, the Verkhovna Rada Committee on National Security, Defense and Intelligence considered the draft law and recommended that it be included in the agenda of the session and adopted as a basis. It is noted that, according to the draft law, a modern model of corporate governance is being introduced at the Concern’s enterprises, which will protect them from corruption risks, conflicts of interest, and direct political influence. In addition, Ukroboronprom’s enterprises will be rehabilitated at all levels: financial, social, and production-technological.

On the last day of the fourth session of the Verkhovna Rada, January 29, the parliament adopted the draft law in the first reading. Now the draft law awaits amendments from MPs.

Ukroboronprom itself believes that the draft law can be passed by April 30, 2021, after which, by the end of June 2021, the Concern will be liquidated. A new defense holding company in the form of a joint-stock company will be created on the basis of its 65 most promising enterprises. In addition, branch business units will be established in the form of joint-stock companies, united in the areas of aircraft repair, armored vehicles, radar systems, marine systems, high-precision weapons, ammunition, and special chemicals.

Why is Ukraine still not in NATO? Ukrainian President Volodymyr Zelensky wants to address this question to the new US President Joe Biden. But the American president is unlikely to have an answer to this question. After all, he cannot push the magic button for Ukraine to become a member of the North Atlantic Alliance. This button does not exist at all. Instead, for the issue of Ukraine’s full membership in NATO to be taken seriously, the country must accomplish many tasks.

Ukraine began cooperating with NATO almost immediately after independence. We were one of the first countries in the post-Soviet space to join NATO’s Partnership for Peace program. Since then, fruitful cooperation between Ukraine and the North Atlantic Alliance has begun, which could well have escalated into more serious membership talks in 2005-2008. Then Ukraine has officially announced its intention to become a member of the Alliance.

But in 2010, during Viktor Yanukovych’s presidency, Ukraine’s foreign policy was changed – the authorities changed their minds and chose a non-aligned status for Ukraine + distance from NATO + rapprochement with Russia. Ukraine could return to “joining NATO” only in 2014 when the war with Russia had already begun. In 2019, this course was enshrined in the Constitution. But this is not enough for the North Atlantic Alliance membership.

Ukraine must confirm its intentions with specific actions and indicators. To this end, Ukraine annually approves the NATO-Ukraine Annual National Program. This program sets out measures to implement reforms that meet Alliance standards. If Ukraine implements the Annual National Programs properly, it will be able to join the NATO Membership Action Plan to prepare for potential membership and demonstrate its ability to meet its commitments. But participation in this program is not a guarantee of membership for Ukraine or any other country.

The North Atlantic Council decides to invite a country to become a full member of NATO based on consensus among all Alliance members. That is, not the American president can make this decision.

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.

After the introduction of the “weekend lockdown”, Lviv Mayor Andriy Sadovy stated that Lviv would not support a decision of the Cabinet of Ministers. But can the city, represented by local governments, refuse to comply with Cabinet resolutions?

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.