Appointing the Heads of the NABU and the SIB: Amendments to the Constitution

On August 29, President Volodymyr Zelenskyy submitted urgent draft law No. 1014 to the Parliament, which stipulates amendments to Article 106 of the Constitution in the section “Presidential authority.” The reason is that appointment of heads of the National Anti-Corruption Bureau and the State Investigation Bureau is not consistent with the Constitution.

For instance, the Law of Ukraine “On the NABU” says that “the National Bureau is formed by the President of Ukraine under this and other Laws of Ukraine.” At the same time, this authority of the President is not included in the Constitution; neither is the authority to appoint or dismiss the head of the NABU and the SIB.

That is why amendments to Article 106 of the Constitution of Ukraine, which would formalize the President’s authority to form the NABU, to appoint the heads of the NABU and the SIB and to create independent regulatory agencies, make it possible to protect these law enforcement agencies and avoid possible issues with unconstitutionality of their creation and functioning. 

However, while these amendments to the Constitution will resolve the legal issues around existence and activity of these agencies in the short run, they can eventually initiate excessive concentration of power in the President’s hands. By their nature, the NABU, the SIB and even national regulatory agencies are executive agencies. Thus, it is the government that should be assigned the duties that are being assigned to the President. 

Since the NABU and the SIB, as law enforcement agencies, are of an executive nature by their designated function, sphere of activity and powers, they should be subordinate to the Cabinet of Ministers and constitute a part of the system of executive agencies.

What is happening?

On August 29, President Volodymyr Zelenskyy submitted urgent draft law No. 1014 to the Parliament, which stipulates amendments to Article 106 of the Constitution (to formalize the President’s power to create independent regulatory agencies, the National Anti-Corruption Bureau of Ukraine, to appoint and dismiss the heads of the NABU and the State Investigation Bureau) and labeled it urgent. 

What is the current situation? 

The President’s powers to create the NABU, to appoint and dismiss the directors of the NABU and the SIB are stipulated in the respective laws. 

According to the Law “On the NABU,” the Director of the Bureau is appointed and dismissed at the initiative of the President. Besides, the Director can be dismissed at the initiative of at least a third of MPs provided there are legal grounds. At the same time, the President has the formal power of appointment. Discretion is limited to selecting between two or three candidates suggested by the selection board.

Under the Law “On the State Investigation Bureau,” the Director of the Bureau is also appointed by the President at the submission of the Prime Minister of Ukraine as nominated by the selection board. At the same time, dismissal of the SIB Director is written in unclear terms. There is the notion of “removal from office,” but it is unclear who is authorized to make that decision.

Problem: 

Art. 106 of the Constitution contains a list of the President’s powers. At the same time, the powers to create the NABU, to appoint and dismiss the Directors of the NABU and the SIB are not defined in this article. 

Under the Constitution, when the President of Ukraine decides on creation, formation of public agencies and regulation of their activity, he or she is obliged to act only based on, within the limits of, and in the way stipulated by the Constitution.

Thus, if the creation or formation of a certain agency is not directly included in the Constitution, this power may be recognized unconstitutional even if it is stipulated in other legislative acts.

One such example is the Constitutional Court (CCU) decision of 13 June 2019, in which the CCU recognized a number of articles of the Law of Ukraine “On the National Commission Which Performs Public Regulation in the Spheres of Energy and Utilities” inconsistent with the Constitution. These articles authorize the President and the Verkhovna Rada to create and form the National Commission, and these provisions are not reflected in the Constitution.

What is suggested?

To make amendments to Article 106 of the Constitution of Ukraine, formalizing the President’s powers to create the NABU, to appoint and dismiss the Directors of the NABU and the SIB and to create independent regulatory agencies on the constitutional level.

Comment:

The suggested changes are meant to protect the law enforcement agencies and to avoid possible issues concerning the unconstitutionality of their creation and functioning.

At the same time, while these changes do resolve the problem by harmonizing the Constitution and the specialized laws, in the future they may lead to negative consequences.

Potential consequences: 

 In terms of distribution of powers, granting this authority to the President is wrong.

Under Article 6 of the Constitution, the state authority in Ukraine is divided into legislative, executive and judicial branches. While the President interacts with all of these branches, he or she does not belong to any of them and, among other things, performs the function of the Commander in Chief, represents the country in international relations, files a motion to appoint the Prime Minister, appoints the Minister of Foreign Affairs and the Minister of Defense (which fully correlates with the two previous functions). Besides, the President can create advisory agencies for operational support to his or her functions (such as the Commission on Pardon, which helps the President to perform his or her functions effectively).

The highest executive authority in Ukraine is the Cabinet of Ministers of Ukraine, and all the other central, regional and local executive agencies are subordinate to it. It should be noted that the powers of the Cabinet of Ministers of Ukraine, unlike those of the President and the Verkhovna Rada, can be specified not only in the Constitution of Ukraine, but also by the Laws of Ukraine.

According to the provisions of the law, the NABU is a national law enforcement agency. This status and appointment procedure may have been a certain political compromise at the moment of its creation, enabling this important agency to be created while granting a certain political influence to the President. 

The NABU and the SIB as law enforcement agencies are of an executive nature by their designated functions, sphere of activity and powers, which means they should be subordinate to the Cabinet of Ministers of Ukraine and constitute a part of the system of executive agencies. This means that the creation and formation of such agencies should be assigned to the Government and the Prime Minister as the person heading the Cabinet.

That principle was partly implemented in the Law of Ukraine “On the SIB,” which defines the SIB as a central executive agency and includes the Prime Minister in the chain of appointments. Even so, the SIB Director is appointed by the President’s formal decree, which also skews the status of this agency.

Thus, it would make more strategic sense not to amend the Constitution, but to amend the specialized laws instead by changing the authority over creation of these agencies and appointment or dismissal of their Directors. Otherwise, the NABU and the SIB, which belong to the system of criminal justice agencies, will acquire an equally unclear status and run the same risks as the SBU, which has turned into a malleable agency controlled by the President.

The same is true of regulatory agencies and the President’s authority to create them. Taking into account the aforementioned CCU decision on the NCREU (where the Constitutional Court pointed out the Commission’s status and defined its nature as a central executive body), national regulatory agencies are executive agencies by nature, so all authority over them should be assigned to the Government.