Ukraine’s new parliament got off to a busy start.
During its first session on Aug. 29, the parliament worked well into the night. Five days later, the parliament held its second session and worked till dark once again.
The parliament was busy voting for constitutional changes proposed by President Volodymyr Zelensky, whose Servant of the People party received a 254-seat majority in the 424-member parliament during the July 21 parliamentary election.
On Sept. 3, the parliament actually passed only one constitutional amendment – lifting parliamentary immunity – while voting for seven other amendments in the first reading and submitting them to the Constitutional Court for approval.
To approve constitutional amendments, a 300-vote majority is needed after the Constitutional Court gives its consent. That requires the presidential party to look for support among opposition members.
If all amendments proposed by the president will be adopted, Ukraine will eventually have a 300-member parliament elected through proportional representation and the president will gain the constitutional right to create additional state institutions and to appoint and fire heads of the National Anticorruption Bureau of Ukraine (NABU) and the State Investigation Bureau (SIB).
Lawmakers would be fired for voting for their absent colleagues, while absentee lawmakers could be removed from office if they miss more than a third of the parliament’s hearings and committee meetings.
Other changes include canceling lawyers’ monopoly on representing people in non-criminal cases, giving the public the right to initiate bills in parliament, as well as giving the legislature the right to create special commissioners and advisory bodies.
Lifting parliament immunity
The constitutional amendment on lifting parliamentary immunity was registered in parliament back in 2018, and approved by the Constitutional Court. That allowed the newly elected parliament to adopt it in the final reading.
With 373 votes in favor, lawmakers canceled immunity, allowing them to be prosecuted without the approval of a parliamentary majority. Previously, to prosecute a lawmaker, the authorities first needed to receive parliament’s permission and lawmakers had to vote to lift their colleague’s immunity.
The amendment enters into force on Jan. 1, 2020.
Corrupt lawmakers have often abused immunity to escape punishment for crimes they committed.
In November, parliament refused to lift the immunity of lawmaker Stanyslav Berezkin, who was accused of misappropriating a $20-million loan from state-owned Oschadbank. In January, the Prosecutor General’s Office did not support lifting the immunity of former pro-government lawmaker Yaroslav Dubnevych, who was accused of embezzlement.
However, there are those who argue that fully lifting parliamentary immunity might place lawmakers in jeopardy of being influenced by the president or external powerbrokers.
In 2015, the Venice Commission, a legal advisory body to the Council of Europe, recommended keeping full parliamentary immunity in place, since its purpose is to ward off harassment, notably from the executive branch, but also from the judiciary when it is not impartial.
Decrease the number of lawmakers
Unlike lifting immunity, other constitutional amendments were drawn up by the new parliament. As a result, they could only be passed in the first reading and need to be assessed by the Constitutional Court.
Among them is the amendment on decreasing the number of lawmakers to 300 and stipulating that the parliament will be elected through proportional representation. If passed, the amendment will shape the next parliamentary election.
OPORA, a non-government election monitoring organization, published an article on Sept. 3 stating that many established democracies have electoral systems entrenched in their constitutions – Finland, Sweden, Norway, Estonia, the Netherlands, Slovenia and so on.
Olga Aivazovska, head of OPORA, supported the imitative, describing it as a good way to curb the parliament’s ability to change the rule book prior to every election.
Ukraine’s electoral system has frequently changed. In the past, Ukraine held parliamentary elections through plurality voting, proportional representation and twice through different mixed systems including both plurality and proportional voting.
However, Aivazovska says that simply choosing proportional representation isn’t enough and that open party lists must also be written into the constitution.
Civil society has long been calling for the introduction of open party lists — a system where voters would have control over exactly whom they are voting for on the party ballot.
Presidential right to appoint and fire heads of anti-graft agencies
Another amendment adopted by parliament is set to add the president’s right to appoint and fire heads of Ukraine’s National Anti-Corruption Bureau and the Investigation Bureau to the constitution.
Formally, the president already has these powers granted to him by the law which created these agencies.
“It’s simply a formality,” says political expert Volodymyr Fesenko.
As of now, the president appoints heads of both bureaus after a complicated procedure involving a commission consisting of lawmakers and presidential appointees and an open tender procedure to choose from potential candidates.
These agencies absence in the constitution could even call their existence into question.
However, opposition lawmakers have expressed concerns about giving the president the constitutional right to appoint and fire heads of investigation and anti-corruption agencies.
The same amendment gives the president the right to create external oversight bodies, such as the National Commission for State Regulation of Energy and Public Utilities, which was created by ex-President Poroshenko in 2014. The Constitutional Court deemed it illegal in 2019, since the president didn’t have these powers.
The organization and its head are currently under investigation for embezzlement. Poroshenko is currently a witness in the same case, which is being investigated by the State Investigation Bureau.
Ending lawyers’ monopoly
The constitution will also be stripped of a provision granting lawyers a monopoly on representing clients in non-criminal cases.
Today, only licensed lawyers are allowed to represent clients in such cases. Starting on Jan. 1, lawyers will also need to represent official institutions in court, which will require these institutions to increase budgetary spending on legal representation.
Should the amendment be passed, both individual clients and institutions will have the right to choose their representative — either representing themselves, choosing a certified lawyer, or selecting any other jurist.
However, since the amendment can be adopted in its second and final reading no earlier than February, government institutions will be forced to contract certified lawyers for the 2020 calendar year.
Dismiss lawmakers for truancy
A constitutional amendment on dismissing lawmakers for truancy and illegal voting was accepted by parliament.
When adopted, lawmakers will be dismissed for missing over a third of parliamentary and committee meetings in one session without an official reason, such as sick leave.
The same punishment will apply to lawmakers who are caught voting for colleagues. According to the law, a lawmaker is only allowed to vote for himself. Currently, it is common practice in Ukraine for a small group of lawmakers to vote for their absent colleagues, thereby creating a quorum and passing bills.
The constitutional amendments will allow the Supreme Court to terminate a lawmaker after receiving a written request.
According to OPORA, the previous parliament featured 40 lawmakers who participated in less than 10 percent of the parliament’s votes.
Give the public the right to initiate bills
Ukraine’s constitution allows lawmakers, ministers and the president to draft laws and present them for a vote in parliament. But a constitutional amendment proposed by the president will give this right to the people.
However, the exact process by which “the people” will be able to propose legislation still needs to be determined by additional legislation.
The president’s representative in the Constitutional Court hinted that legislation proposed by the public will need to attract a certain number of signatures to be presented in parliament.
Commissioners and advisory bodies of the parliament
On Aug. 3, the parliament passed two separate constitutional amendments in the first reading — one giving the parliament the right to create special commissioners and the other creating special advisory bodies.
Currently, the parliament has only one commissioner – on human rights. The amendment will allow the parliament to add other commissioners in charge of important issues, who will report to parliament.
The second amendment will allow parliament to create special advisory commissions. The amendment, however, doesn’t specify the powers of these commissions. Lawmakers from the European Solidarity and Voice parties say that these commissions will have overlapping powers with the parliamentary committees.
Both amendments will require additional laws to specify the details of these arrangements.
