The Constitutional Court of Ukraine has opened an open plenary session to consider the submission of 50 MPs on the compliance of certain provisions of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine” of October 14, 2014 with the Constitution of Ukraine.
The constitutional submission compiled almost all the already known points about the inconsistency of certain provisions of the Ukrainian law “On the NABU” with the Constitution. TI Ukraine has repeatedly analyzed them, in particular, the issues of the President’s authority and the appointment of directors of the NABU and the SIB.
TI Ukraine’s Head of Legal Kateryna Ryzhenko expressed her opinion on this issue:
“The Anti-Corruption Bureau plays a crucial role in the fight against corruption and is an indispensable institution in the framework of anti-corruption reform. The legislative background of its work should fully comply with the Constitution. No matter how the decision of the CCU is formulated, it should not paralyze the work of the Bureau and should not cancel existing achievements. The consideration of such a submission should only encourage MPs to initiate and support the necessary changes to the legislation as soon as possible and bring the law “On NABU” in line with the Constitution.”
Separately, Kateryna drew attention to a similar situation with the Verkhovna Rada, whose similar powers are also not spelled out in the Constitution. However, this constitutional submission does not challenge such provisions.
“In articles 6 and 7 of the law of Ukraine “On NABU” there are a number of powers provided specifically for the Parliament, which are also not enshrined in the Constitution and do not correspond to the principle of separation of powers into three branches. For example, the Verkhovna Rada may, if there are clearly defined grounds, decide to dismiss the Director of the NABU. MPs also appoint three people to the Commission that selects the Head of the Bureau.”
We remind you that the Constitutional Court has just started considering this case, so the decision should not be expected in the coming days. Here are the items of the submission:
- The scope and limits of powers of the President of Ukraine are determined exclusively by the Constitution of Ukraine and cannot be extended by law or other normative acts.
- The Constitution does not provide for the powers of the President on the establishment of NABU, appointment/dismissal of the Director, nomination of three members for the Selection Commission for the Bureau Director, the election of a member of the Commission of external monitoring, the approval of the Public Oversight Council.
- State power in Ukraine is exercised on the basis of its division into legislative, executive and judicial branches. Although the President interacts with each of these branches, he does not belong to any of them.
- The NABU, as a law enforcement agency, has the characteristics of an executive body of power for its functional purpose, which means that it must be subordinate to the Cabinet of Ministers of Ukraine and belong to the system of executive authorities. Accordingly, the creation and formation of such bodies should be the responsibility of the government and the Prime Minister.
- The current wording of the law threatens the independence of the NABU, leads to the concentration of executive power with the President of Ukraine and his competition with the executive authorities, and consequently, ruins the guarantees of human and civil rights and freedoms.
