New Law on National Security: What Will Change In The Defence Sector?

After almost three years of difficult negotiations and coordination on 21 January 2018 Verkhovna Rada adopted the Law on National Security of Ukraine which was introduced by the President.

The goal of the document is to bring the security and defence sector closer to the system of NATO members.

Independent Defence Anti-Corruption Committee (NAKO) which is aimed at reducing the corruption risks in this sector has not simply followed the law-making process but has advocated for the reformatory amendments that could increase the transparency and accountability of the sector.

Most amendments suggested by NAKO were supported by RPR experts and introduced by the deputies but finally rejected.

It particular, it goes about the proposal to enlarge the area of public procurement to include there the conventional armaments and to reform the state secrets protection system.

Undoubtedly, the law is the result of compromise, and it could have been much more progressive. It keeps the president’s hierarchy in the sector management, whereas the roles of the parliament, the government and the civil society could have been better increased.

Thus, let’s try to understand which real changes the law suggests in its current version while bringing Ukraine closer to NATO’s standards.

The law calls the EU and NATO membership as the fundamental national interest of Ukraine.

The law defines which spheres are controlled by the President of Ukraine, the National Security and Defence Council, Verkhovna Rada, the Cabinet of Ministers and differentiates between functions of different bodies and institutions in the sector.

Defence and security sector of Ukraine includes four interconnected parts: security forces; defence forces; military-industrial complex; citizens and NGOs that are voluntarily involved into assuring national security.

One of the key changes that the law makes is the differentiation between the civil-planning and military-operational functions of the defence sector.

It goes about dividing the post of the Chief of General Staff and the Commander-in-Chief of the armed forces of Ukraine starting from 2021. Now this is one post occupied by Viktor Muzhenko.

It’s noteworthy to mention the requirement as for the appointment of the Minister of Defence and his deputies from civil persons which will come into force in 2019.

However, this requirement is poorly written out as any military man before appointment to the post can formally “terminate” his military service and turn to a civil person.

Unfortunately, the Verhovna Rada Committee didn’t accept an amendment which was suggested by NAKO and which was introduced by several deputies as for the 5-year pause after discharge from service.

Another important change is that the law stipulates the work of the Central Body of the Executive Power (CBEP, or ЦОВВ in Ukrainian) which assures formation and realizes the state military and industrial policy. Currently such a body is missing.

According to the legislation, the Ministry of Economic Development prepares and generalizes the suggestions concerning the formation and assurance of realizing the state policy in the area of functioning and development of the military and industrial complex, whereas de-facto this policy is realized by state concern Ukroboronprom.

Ukroboronprom should not have any regulatory functions, it should act as an economic operator exclusively.

Currently NAKO is monitoring the procurement of the independent international audit by Ukroboronprom and implementation of anti-corruption measures and OECD corporate governance standards in the concern as well as in its member companies.

In case of political will and international support the current structure of Ukroboronprom allows to carry out the ambitious reform of state defence establishments which are a part of it and serve as a positive example of the rest of defence industry.

Creation of a separate Central Body of the Executive Power to formulate and realize the state defence and industrial policy is not obligatory as these functions were already given to the existing Central Body of the Executive Power.

International partners and civil society intend to monitor that this new Central Body of the Executive Power must not produce new corruption risks instead of contributing to transparency and accountability.

I want to separately talk about the amendment suggested by the international partners which is in tune with the ones concerning the transitional provisions made by NAKO.

It goes about the declaration of the sector transparency which “stipulates the full financial disclosure as for the defence and security sector functioning in order to assure the effective use of financial resources taking into consideration the requirements of the State Secrecy Law”.

It’s clear that this norm requires the preparation of additional legislation and secondary legislation which will regulate how exactly the aforementioned transparency will be assured.

In particular, the link to the State Secrecy Law will allow better precision of the reasons to reject the access to the information, and later to modernize the existing system of data secrecy through the changes to the State Secrecy Law.

The most resonant issue for the society and the one attracting the increased focus of the international partners is launching the reform of the Security Service of Ukraine as well as establishing a separate parliamentary committee that carries out the control over the activity of the SSU and the intelligence bodies.

According to the new law, the SSU ceases to be the law-enforcement body of special task and becomes the special-task body with law enforcement functions.

Now the SSU will be limited to four tasks: counteraction to intelligence and subversive activity, counter-terrorism, counterintelligence support and the state secrecy protection.

However, the SSU issue is not without ‚fly in the ointment‘.

Despite the wish to reform the SSU which was declared in the finalizing points, the text itself doesn’t mention anything revolutionary.

Numerous attempts to take away from the SSU the unusual functions for such a body (investigating economic crimes and fight against corruption) already now, and not in 6 months, by introducing changes to the Law on Security Service, were blocked by the Committee.

According to the new law, the SSU remains responsible for the counterintelligence protection of the economic security of the state which can further provoke illegitimate and corruptive attacks on businesses where allegedly Russian spies work.

International partners hope that the parliamentary control of the new Committee will allow ceasing such kind of abuse.

In the process of adopting the deputies criticized the Law on National Security because of its halfness, declarative character and insufficient detalization.

This law should replace another three ones: “On National Security Foundation”, “On Democratic Civil Control Over State Military Organization and Law Enforcement Bodies” and “On Defence Planning Organization”.

Clearly, the law has been improved in comparison with the text introduced by the President in February 2018. But a big part of specifics which could have accelerated the reforms in the sector didn’t get into the final text.

Currently Ukraine has got an acceptable framework law which by itself doesn’t change the state of affairs in the sector but launches the process of making new legislation. Real changes will depend on the quality and pace of adopting this legislation.

In particular, six months after this law has come into force, the new bills should be submitted for consideration to Verhovna Rada: “On the Security Service of Ukraine” and concerning the establishment of the Verkhovna Rada Committee carrying out the control over the SSU and the intelligence bodies.

NAKO as the representative body of the international civil organization will continue taking part in the sector reformation process.

Pre-election period is not the reason for the civil society and international partners to let their guard down when it comes to law-making process in defence and security sector.

Conversely, we hope that the clear orientation of most politicians in office towards the EU and NATO will motivate them to prove the Euro-Atlantic values before the voting public in word and in deed.

Here I mean modernization of the legislation concerning the state secrecy and transparency of the state budget, defence procurement and state defence order as well as democratic civil control over the state Military organization and the law enforcement bodies.

NAKO Secretary General Olena Tregub for Ukrayinska Pravda