Recently, TI Ukraine published an analysis of the draft law No. 5459 “On Amendments to Certain Laws of Ukraine on Bringing the Status of the National Anti-Corruption Bureau of Ukraine into Compliance with the Requirements of the Constitution of Ukraine,” describing the advantages and disadvantages of this legislative initiative.
In particular, one of the significant disadvantages was the involvement of the National Security and Defense Council in the selection commission for the election of the NABU director. This shortcoming is proposed to be solved by an alternative draft law — No. 5459-1, which was submitted on May 13 by similar subjects of legislative initiative, as well as in the main one — MPs from the Servant of the People Party. Before proceeding to a direct analysis of the draft law, we will explain the meaning of alternative draft laws.
At their core, alternative draft laws mostly repeat the provisions of the main draft law. At the same time, alternative draft laws contain minor changes, the main role of which is to offer an additional option for controversial provisions of the main draft law. These draft laws are submitted before the first reading. The consequence of the relevant committee’s consideration of alternative draft laws, along with the main one, may be a recommendation to the Verkhovna Rada to take one of them as a basis.
Such prospects for considering alternative draft laws is a positive thing because No. 5459-1 is now the best initiative aimed at resolving the crisis associated with the lack of a procedure for electing and dismissing the head of the NABU.
What Is Proposed?
The main changes relate to the procedure for competitive selection and appointment of the director of the National Bureau. Therefore, let us remind you that the main draft law establishes the following composition of the commission: 3 persons — from the National Security and Defense Council, 3 more — delegates from the Cabinet of Ministers on the basis of proposals from international partners. An alternative one suggests that instead of the National Security and Defense Council, the Cabinet of Ministers should delegate three people to the commission. Such a change is unequivocally positive because the risk of declaring certain provisions of this law unconstitutional is reduced to zero. By adopting No. 5459, such a threat will exist, since the president, as head of the National Security and Defense Council, will still have influence on the election of the head of this central executive body.
The termination of the NSDC’s influence over the selection commission to elect the head of the National Bureau will entail other changes. So, if according to the main draft law, the decision on early termination of the powers of a certain member in the selection commission was made by the National Security and Defense Council together with the government, then the alternative one assigns such a right exclusively to the Cabinet of Ministers. This means that the risk of blocking the performance of the selection commission is reduced because only the Cabinet of Ministers, if there are grounds, can influence the activity of the latter.
In general, the procedure proposed by the alternative draft law is almost identical to the one used to elect the head of the NACP. At that time, the selection commission also consisted of six people. Three of them were recommended by international donors, and three were selected by the government. The success of the competitive selection of the agency’s management indicates that the model described in No. 5459-1 deserves support.
Transparency International Ukraine supports the amendments proposed by the alternative draft law No. 5459-1. The lack of the President’s influence over the work of the selection commission and, accordingly, reducing the threat of the crisis due to another conclusion of the Constitutional Court of Ukraine on the unconstitutionality of the provisions on the procedure for electing the head of the NABU undoubtedly contributes to the independence and stability of the Anti-Corruption Bureau.
At the same time, despite the existence of improvements, this alternative draft law does not solve the problems of early dismissal of the current director outside the grounds envisaged by the current legislation and government’s delegating two candidates for the position of NABU director. Considering our recommendations regarding the election of one, rather than two, candidates for the position, as well as removing the norm on early dismissal of the current head of the National Bureau, would facilitate the election of a truly independent director of this body.