On September 16, the Constitutional Court declared a number of provisions on the NABU law unconstitutional. This led to the intensification of discussions about the legitimacy of Artem Sytnyk as Bureau director.
According to the decision of the CCU of September 16, the following powers of the President do not comply with the Constitution:
- to form the National Anti-Corruption Bureau of Ukraine; to appoint and dismiss the Director of the National Anti-Corruption Bureau of Ukraine;
- to delegate three persons to the commission for selection of the future director of NABU;
- to appoint one member of the external control commission to conduct an independent assessment (audit) of the NABU’s performance;
- to approve the Regulations on the Public Oversight Council of the NABU and on the procedure for its formation.
The government had three months to amend the legislation. Yet, it has not been done yet. A new stage of this story started in the middle of February, when the Cabinet of Ministers approved its way to resolve the crisis.
This is draft law 5070.
Here are the main points:
Changing the status of the NABU. The National Anti-Corruption Bureau can become a central executive body with a special status, rather than a “state law enforcement agency.” These amendments are in line with the stance of the Constitutional Court in its decisions on the powers of the president of Ukraine and clearly define the place of the Bureau in the executive power hierarchy.
Changing the procedure for selection of the director. The new commission will be composed as follows:
1) three persons delegated by the National Security and Defense Council of Ukraine;
2) three persons delegated by the Cabinet of Ministers of Ukraine;
3) three persons delegated by the Cabinet of Ministers of Ukraine based on donors’ proposals.
The decisions are made by the Commission if at least five members vote for them at the meeting. This means that the votes of donor representatives will not have a direct impact on the final decision of the commission, like it is provided in the law “On Corruption Prevention.”
Delegating three people from the National Security and Defense Council are an attempt to formally implement the decision of the CCU and remove the functions inherent in the President from the NABU Law, but keep the President of Ukraine on in the loop of competitive selection of the Anti-Corruption Bureau Director in some way.
It is noteworthy that the functions of the National Security and Defense Council are determined by law, not by the Constitution. And the law is easier to change. Nevertheless, under Article 107 of the Constitution, the National Security and Defense Council is a coordination body on issues of national security and defense under the President of Ukraine. The head of the National Defense and Security Council is the President of Ukraine. Although the Director will be formally appointed by the Cabinet of Ministers, the President will still influence the election of the head of the central executive body, albeit through the National Security and Defense Council.
The scheme for appointing the Commission based on the law “On Corruption Prevention,” without potential political influence of the Presidential Office and with actual involvement of international community representatives, would be much more appropriate. Overall, the competitive procedure for selection of the NABU director is more thought-through there.
Change in the procedure of appointing members of the external audit committee. The scheme, again, resembles the provisions of the Law of Ukraine “On Corruption Prevention,” but with less detail on the rights of members of this commission and unresolved issues of liability for obstruction / failure to provide information to the auditor, the auditor’s responsibility for their activities.
The Parliament will no longer be able to dismiss the NABU Director. Even with clear grounds under Article 6 of the Law of Ukraine “On the NABU,” initiated by at least a third of the constitutional quorum of the Parliament. It is proposed to remove this provision from the law. This should definitely add more safeguards.
The most controversial provision is clause 2 of the Final and Transitional Provisions: “The individual holding the position of the First Deputy Director of the NABU as of the day of this Law coming into effect performs all duties of the Director of the NABU prescribed by the Law until appointment of the Director of the NABU in the manner prescribed by this Law.” This legislative initiative effectively proposes to transfer the powers of the NABU Director to Gizo Uglava, who currently is the First Deputy Director.
However, this provision will create several problems. First, they are actually trying to dismiss the head of the anti-corruption body by a political decision. There are, however, clearly defined grounds for dismissal of the Director in the law “On the NABU” which are designed to ensure maximum independence of his or her activities.
Another issue is if Artem Sytnyk remains in office until the end of his term. However, all his functions must also be performed by his first deputy until a new competition is held. This creates grounds for legal uncertainty, which may lead to an appeal against the legitimacy of all actions and decisions of the NABU. We all understand the scale of the potential consequences.
We should keep in mind that as recently as half a year ago, Zelenskyy clearly promised to the IMF to ensure the independence and integrity of the NABU, including by following the procedures of appointment of its director and maintaining restricted and serious grounds for his or her dismissal. He also spoke about conducting an external audit of NABU with the participation of three reputable and respected experts with significant international experience in the implementation of anti-corruption legislation with all sufficient resources. However, the proposed draft law actually addresses only the issue of involving international experts in the audit.
There are still heated debates over how much the draft law will affect the NABU’s independence, whether it will cause acute legal chaos and start a crisis in the Bureau itself, and whether it will violate Ukraine’s international obligations. However, one thing is for sure—the NABU must work within the framework of the Constitution, so that none of the corrupt officials can then avoid punishment for the millions stolen from us.