Chronicles of the turbo-mode: screw-ups and victories of the first year of Rada-9

Verkhovna Rada-9 led by the monomajority works for more than a year now. During this period, the MPs have closed three regular parliamentary sessions, adopted 236 laws, dismissed the Cabinet of Oleksii Honcharuk, and appointed a new one led by Denys Shmyhal.

The year was hardly favorable for the Parliament: on top of the ongoing war that continues for seven years now, it had to deal also with the pandemic and economic recession. In critical situations, though, the priorities of those who represent the Ukrainian people can be seen more clearly.

Today we will review 10 important laws adopted by the Parliament and signed by the President: 5 of them deserve to be called “screw-ups”, and 5 can be considered “victories”.

The National Commission for State Regulation of Energy and Public Utilities (NCSREPU) is a state regulatory authority that balances the interests of consumers and producers of public utilities.

To work properly, any regulatory authority has to be independent.

The NCSREPU has to make its decisions in such a fashion that the consumers are satisfied and the producers are not threatened with bankruptcy and continue to pay taxes and provide jobs.

Political leverage over the regulatory authority gives an opportunity to gain profit from it, make deals with tycoons, put a hand in consumers’ pockets, and play with voters’ feelings before the elections. That is why every Ukrainian president and government wanted to gain control over the NCSREPU.

The only problem is the Constitution. The Constitutional Court has ruled unconstitutional several provisions from the law adopted in 2016 — the ones granting the President the authority to delegate his representatives to the commission for the selection of NCSREPU members and affect their work. To prevent the complete shutdown of the regulator, the Court has given the Parliament time to revise the law before the end of 2019.

MPs Andrii Herus, Andrii Zhupanyna, and Oleh Seminskyi has tried to do that and submitted a new draft bill, but its adoption has not resolved all the issues. All unconstitutional provisions from the previous law were dropped but new shady articles were added to the transitional provisions: the President received the authority to define a procedure for rotation of the regulator’s members. In short, the head of the state will decide how his members of the NCSREPU will be replaced by representatives of the Cabinet.

As a result, the President will retain his advantage over the regulator for the next five years. Ignoring the ruling of the Court, the Parliament has left a loophole that threatens the independence of the regulator.

The draft bill has also limited the transparency and independence of the NCSREPU by dropping two requirements: to broadcast the meetings of the commission for the selection of NCSREPU members and to publish materials and draft resolutions of the regulator.

Scandalous politicians for decades have shielded themselves with their status of members of parliament. As a result, voters have started to demand to abolish the parliamentary immunity, and each election the majority of candidates promised to do just that. A lot of people somehow have overlooked the fact that during the Revolution of Dignity the immunity helped the MPs from opposition to counter anti-democratic initiatives of the majority and protect the right to peaceful assembly.

Nevertheless, the first item of the agenda of Rada-9 was to abolish parliamentary immunity. Something has immediately gone wrong.

First, the procedure of introducing the changes to the Constitution has been violated. The procedure has been deliberately made complicated and slow — as a safeguard against rushed decisions.

The draft bill abolishing the parliamentary immunity has been adopted in the first reading during the first parliamentary session and in just four days it has been passed.

It is unclear if such a procedure violates the Constitution. MPs should have adopted the law in the first reading during the regular parliamentary session, not the first one. At least such argument has been presented by 50 MPs that appealed against the law to the Constitutional Court.

Second, parliamentary immunity is not a card Blanche for the MPs to kill, rob, or steal. Its main purpose is to protect the members of the Parliament in their confrontation with the President, judiciary, or any other state institution. Elected representatives of the people should not fear for their freedom while they defend the interests of their voters.

The law has granted the President dangerous leverage over MPs since he controls the Prosecutor General.

Never in the history of Ukraine had the President as much power over MPs as Volodymyr Zelensky has over Rada-9. That is definitely not good for maintaining the balance of power and ensuring the independent work of the Parliament.

The launch of the State Bureau of Investigation (SBI) should have been a step towards law enforcement reform.

Higher efficiency standards, more independence, personnel with superior training, and international support should have made the new body capable to properly conduct investigations against law enforcement officers, judges, ministers, MPs, etc.

Four years have passed since the law on SBI was passed, and during all this time politicians tried to gain control over the newly-created agency and thus discredited its work. Rada-9 was forced to relaunch the SBI and try to make it work.

The Parliament has passed a new law and dismissed Roman Truba and his deputies (former SBI directors). The President was granted the power to appoint the SBI director.

The legal status of the SBI has also changed: before, it was a part of the executive branch under the Cabinet and now it has become a body under the President.

The law has been passed the next week after the Constitutional Court had declared that the NABU and the SBI have to be subordinate to the Cabinet, while the President’s desire to appoint their heads would introduce an imbalance in the separation of powers.

Thus, the President has no authority to appoint the SBI Director and the Bureau itself has to become a part of the executive branch once more. Therefore, the law is unconstitutional.

While the Parliament does nothing to correct its mistake, the legitimacy of the Bureau’s work during the last 7 months (and until the law will be revised and returned in line with the Constitution) is doubtful.

In March, the Parliament adopted the so-called “anti-Kolomoyskyi” bill in the first reading. The issue was urgent because the IMF included it as a requirement for further cooperation with Ukraine.

To slow down the process or stop the draft bill altogether, several MPs have submitted an overwhelming number of amendments (16,381). To review all these amendments, the Parliament needed months it did not have.

A simple solution was found: to introduce a special deliberation procedure. Each faction was supposed to submit no more than 5 amendments, each MP — no more than one.

Such a procedure, though, can be ruled unconstitutional and then all laws adopted under the procedure will be ruled unconstitutional as well.

Parliamentary factions have no right to initiate legislation and therefore cannot submit amendments. Besides, there is precedence when the Constitutional Court has ruled unconstitutional the “Kivalov-Kolisnichenko language law” because not all amendments submitted by MPs were considered.

Since the “anti-Kolomoyskyi” bill has been passed under the special procedure, 64 MPs that appealed against this law to the Constitutional Court have good chances to win the case.

In autumn of 2019, Zelensky and his monomajority in the Parliament appointed their own Cabinet. However, even that was not enough: they wanted more control.

In September, the Parliament has adopted the law to reboot the governance. The law made it easy to fire civil servants.

The Cabinet of Oleksii Honcharuk has got the power during its first four months in office to dismiss civil servants of categories A and B — heads and deputies of government bodies, heads of governmental departments.

In six months, the new Cabinet led by Denys Shmyhal received the right to appoint civil servants without competition until the end of the lockdown. The Cabinet can contract civil servants after mere job interviews and without exams.

As a result, the Government now can fire almost anyone and appoint loyal people instead of professionals.

The Cabinet of Denys Shmyhal has already used the simplified procedure 47 times. The first victims of this new HR-policy were the former Head of the State Tax Service Serhii Verlanov and the former Head of the Customs Service Maksym Nefyodov.

Such procedures make it impossible for the civil service to be politically impartial and frighten off professionals that want to pursue a career in the service.

In other words, when President Zelensky complains about the staff shortage he should find the reason for this shortage in the decisions made by his monomajority in the Parliament.

In June of 2018, the Parliament adopted the law on the National Security of Ukraine. Besides the definition of “national security”, the bill contained the provisions on reforming the Armed Forces management.

The key change was in differentiating functions of general command and planning. The General Staff became responsible only for the planning, while functions of general command were transferred to the Commander-in-Chief of the Armed Forces of Ukraine. This position was new for Ukraine but is a typical one for NATO member states. The Commander-in-Chief is appointed by the President upon the submission from the Minister of Defense.

There was a problem, though: the start of the reform had been postponed until January of 2021. In the final version of the bill, fortunately, the date was reset to March of 2020. Thus, the reform has started almost a year earlier. In the face of the ongoing war with the Russian Federation, the timing was crucial.

After the “budget night” of 2017, a new requirement was introduced for the real property market: to register the assessment of real property in the Fund of State Property database before the sale. The only way to do that was via the “authorized online platforms” that charged a fee for their services. The owner of these platforms was not the state but, allegedly, Anton Yatsenko, a member of the parliament.

During the first month after the new rules were introduced, the intermediary companies have earned ₴23 million. On average, each day the scheme gave its owners near a million hryvnias.

The liquidation of the corruption scheme has become the first bone of contention for the “monomajority”. According to European Pravda, some MPs from the Servant of the People were paid $30 thousand for boycotting the draft bill.

Nevertheless, the law has been passed in the end. The intermediaries were left out of the process and the procedure of assessment of the real property was changed.

Politicians promised to change electoral systems for local and parliamentary elections since the Revolution of Dignity. In particular, to introduce a proportional system with open lists.

The new electoral design was implemented in the draft of the Election Code adopted by the previous parliament. President Zelensky, though, has vetoed the Code and sent it back to the Parliament for revision. In the end, Rada-9 has rewritten the draft and the Code was adopted and signed.

The key innovation of the Code is a proportional electoral system with open lists for the parliamentary and local elections.

Voters will be able to vote for a particular candidate nominated by a party and thus increase his or her chances to be elected. Together with the law on state funding of political parties, the Code gives a perfect opportunity for parties to grow and become stronger, and that in turn facilitates further development of the parliamentary democracy in Ukraine.

Negative consequences of the Code are also worth mentioning: parties can start fighting for the loyalty of local elites or selling their “franchises” instead of trying to establish their regional networks.

Overall, though, never in the history of Ukraine political parties were in a better position to develop themselves than under the Election Code.

Rada-9 demonstrates a surprising interest in draft bills on finances. At the beginning of its work, the Parliament has adopted the laws on split and consumer protection.

The first bill has liquidated the National Commission for the State Regulation of Financial Services Markets. The regulator was supposed to oversee the sector of financial services but was dependent on the President and lacked the resources to perform its functions.

The second bill allowed regulators to protect consumer rights.

Real victory, though, was the law on capital markets and organized commodities markets: different versions of this law failed in the debating chamber for ten years. The following innovations were introduced:

capital markets: they will allow companies to raise capital effectively and efficiently while regular citizens will be able to make profitable investments

organized commodities markets: they set benchmarks for market prices — commodity prices, for example, or prices on agricultural products.

The law has also introduced new financial instruments — derivatives. They will help Ukrainian companies with risk management.

Overall, the development of the financial market brings in investments, accelerates the national economy, and thus ensure prosperity for Ukrainian citizens.

Despite the rumors and claims of some politicians, local elections of 2020 will not be postponed and will be conducted only on the territories controlled by the Ukrainian Government.

The upcoming elections are special this year because of the decentralization reform. Many processes depend on the elections: the establishment of amalgamated territorial communities and amalgamated raions, redistribution of powers and taxes collected by local governments — everything hangs on the upcoming elections.

Local elections are probably the most expected event of the year. Ukrainians will elect not just their new mayors and local councilors but will participate in reforming the local government, administrative and territorial structure, and decentralization.