On February 22, 2021, draft law No. 5133 “On Amendments to Articles 85 and 106 of the Constitution of Ukraine (concerning the procedure of appointment and dismissal of the Director of the National Anti-Corruption Bureau and the Director of the State Investigation Bureau)” was registered in the Verkhovna Rada of Ukraine.

What Is It Like Now?

As of March 2021, there is no mechanism for appointing the NABU director to the position. The powers of the President established by Art. 106 of the Constitution of Ukraine do not include the appointment of NABU and SIB directors.

For this reason, first the Presidential Decree on the appointment of Artem Sytnyk as the NABU director was ruled unconstitutional, and then the same fate befell certain provisions of the Law of Ukraine “On the National Anti-Corruption Bureau of Ukraine.”

Article 106 of the Constitution lists the powers of the President. It does not include the authority to establish the NABU, appoint and dismiss NABU and SIB directors.

The Constitution also states that the President of Ukraine is obliged to act only within the limits of the powers granted to him and in accordance with the procedure established by the Constitution, which is a de facto safeguard against excessive expansion of presidential powers.

This resulted in legal uncertainty: on the one hand, there was an individual repealed legal act (appointment of Artem Sytnyk as NABU director), and on the other hand, the legislative provisions regulating such appointment have been ruled unconstitutional. That is, the very mechanism of appointment to office has disappeared.

Currently, two scenarios are being outlined: amendments to the Constitution of Ukraine empowering the President of Ukraine to appoint the aforementioned directors, and assigning the authority to appoint the NABU director (and the SIB director) to the competence of the Cabinet of Ministers of Ukraine.

Ukrainian MPs have already tried to resolve this the way proposed by the President. For instance, on August 28, 2019, draft law No. 1014 was filed. The Parliament did not support it. At the same time, draft law No. 5070 penned by the prime minister proposes to formalize the status of the NABU in the system of central bodies of executive power.

In December, the Constitutional Court also provided its assessment to the 2019 presidential initiative in case No 2-249/2019 (5581/19).

In this assessment, the CCU points out that indirect subordination of the National Anti-Corruption Bureau and the State Investigation Bureau to the President of Ukraine through appointment and dismissal of their leaders would put the independence of these agencies in jeopardy, lead to excessive concentration of the executive power in the President’s hands and create a competition between the President and executive agencies, which will in turn be detrimental to the guarantees of human rights and freedoms.

What is proposed in draft law No. 5133?

Draft law 5133 proposes two constitutional innovations:

  • to empower the Verkhovna Rada of Ukraine to approve the appointment on the results of competitive selection and dismissal of NABU and SIB directors by the President of Ukraine;
  • to empower the President to appoint and dismiss directors of the NABU and the SIB with consent of the Verkhovna Rada of Ukraine, with competitive selection as prescribed by the law.

Recommendations and concerns:

These proposals raise a number of concerns already pointed out by Transparency International Ukraine, namely:

  • Article 6 of the Constitution of Ukraine regulates that the state power in Ukraine is divided into legislative, executive, and judicial branches. The President cooperates with each of these branches, but does not belong to any of them, acting as Commander-in-Chief, representing the country in foreign policy, nominating the Prime Minister, and having the authority to appoint the Minister of Foreign Affairs and the Minister of Defense.

Although the President has the right to establish advisory and consultative bodies, such bodies are created only and exclusively to perform the powers of the President of Ukraine.

  • The highest executive body in Ukraine is the Cabinet of Ministers of Ukraine, to which all other central, regional and local executive bodies of the state are subordinate. At the same time, it should be noted that the powers of the Cabinet of Ministers of Ukraine can be determined not only by the Constitution of Ukraine, but also by the laws of Ukraine, in contrast to the Parliament and the President of Ukraine.

According to the provisions of the law, the NABU is a state law enforcement body and does not belong to the defense and other areas that are under the purview of the President of Ukraine.

  • The NABU and the SIB, as law enforcement agencies by their nature, purview and powers, are executive bodies, i.e. they should be subordinate to the Cabinet. Their establishment and coordination of their activities belongs to the competence of the Cabinet of Ministers of Ukraine.

Additionally empowering the President of Ukraine may lead to a power imbalance, create a situation of dependence of law enforcement agencies, weaken the institutional independence of the NABU and the SIB, form a competition between the President and the Cabinet.

Transparency International Ukraine does not support draft law 5133 and calls on Ukrainian MPs to consider such initiatives with caution, given that the adoption of this draft law could lay the groundwork for another constitutional crisis such as the previous two.

The analysis has been prepared by TI Ukraine’s legal advisor Serhii Kurinnyi.