Anti-corruption policy

Since the Revolution of Dignity, the fight against corruption is one of the most explosive issues for the Parliament. This week the Verkhovna Rada will probably bring it up again. One of the draft bills on the parliamentary agenda is the bill on how to develop and adopt strategic anti-corruption documents. It is also supposed to approve the Anti-Corruption Strategy for the next three years. In today’s digest, we will analyze this proposal and explore what impact it can have on our state and lives.

Law on the Principles of Anti-Corruption Policy (draft bill #4135 of September 21, 2020)

Status: second reading.

Who is affected: the Verkhovna Rada, the Cabinet, the National Agency on Corruption Prevention, local governments, civil servants, elected state officials, and elected local government officials.

Summary of the bill:

1. grants the National Agency on Corruption Prevention (NACP) the authority to develop two strategic anti-corruption documents:

• draft of the Anti-Corruption Strategy that has to be approved by the Verkhovna Rada
• draft of the State Anti-Corruption Program on the Implementation of the Anti-Corruption Strategy that has to be approved by the Cabinet

2. provisions that the Verkhovna Rada has annually (no later than June, 1) to hold parliamentary hearings on the implementation of the Anti-Corruption Strategy
3. obligates the Verkhovna Rada to engage the NACP in the development of any amendments to the Anti-Corruption Strategy
4. the Anti-Corruption Strategy is implemented via the State Anti-Corruption Program on the Implementation of the Anti-Corruption Strategy
5. grants the NACP the authority to initiate amendments to the State Anti-Corruption Program, coordinate the implementation of the Anti-Corruption Strategy and the State Anti-Corruption Program. Also, the NACP will monitor and evaluate the effectiveness of the implementation of the State Anti-Corruption Program
6. the bill approves the Anti-Corruption Strategy for 2021–2025.

What is wrong:

• the Constitution does not grant the Verkhovna Rada the authority to approve legal documents like the Anti-Corruption Strategy and prohibits the Parliament from expanding its powers by adopting laws or bylaws. Thus, a provision of the draft bill granting the Verkhovna Rada the power to approve the Anti-Corruption Strategy violates the Constitution
• it is unconstitutional for the law to prohibit the Cabinet from making any amendments to the State Anti-Corruption Program without consulting the NACP. Such an idea conflicts with the executive hierarchy. The Cabinet is the supreme executive body in Ukraine, so to exercise its power it is independent of any bodies under it
• the NACP is not a ministry and its head is not a member of the Cabinet, so it cannot develop the anti-corruption policy. This policy, including the development of state programs and strategies, is an exclusive responsibility of the ministries and the Cabinet. Other central executive bodies are created only to implement state policies on particular issues or to control the implementation of state policies. That is why the idea to grant the NACP the powers to draft strategic documents is incongruous with the executive hierarchy defined by the Constitution
• the prohibition for the Verkhovna Rada to amend the Anti-Corruption Strategy without engaging the NACP is unconstitutional. The general principle is that the Parliament is independent in exercising its powers except in cases defined by the Constitution
• provisions that obligate the Parliament to annually hold parliamentary hearings and set a deadline for when these hearings should be held is a matter of rules of procedure. According to the Constitution, such matters can be regulated exclusively by the Rules of Procedure of the Verkhovna Rada
• the authority to develop drafts of the Strategy and the State Program is political in nature and uncharacteristic of the NACP. If the NACP has to both coordinate and monitor the implementation of these documents, it will be tempted to abuse its powers. This is also a violation of the principle of separating policy development from control over policy implementation
• the draft bill grants the NACP a de facto monopoly to decide on the matters concerning the fight against political (top-level) corruption. As a result, the NACP will become political and politicians in power will try to use it as a tool to oppress the opponents. Also, such a monopoly undermines the system of checks and balances that is supposed to prevent the excessive concentration of power by any branch of power or any government body
• the majority of the provisions of the Anti-Corruption Strategy that the draft bill proposes to approve are not the provisions of law but descriptions of tendencies, principles, and expected results. Thus, the Strategy cannot be approved by the law since it is not a regulatory act
• to simultaneously approve the Anti-Corruption Strategy for 2021–2025 and adopt the law violates the provisions of this law itself. First, the law has to come into force, then the Verkhovna Rada must hold parliamentary hearings, and only then the Strategy can be approved
• even if this overtly unconstitutional draft bill is adopted, it will be challenged in the Constitutional Court. If the Court rules this law unconstitutional, it will once more become the center of a political conflict. The results for the NACP will be the same as the results of the so-called “constitutional crisis” when the provisions defining the powers of the NACP and penalties for the failure to submit asset declarations were declared unconstitutional.

Alternative solution:

• to reject the draft bill since it is in direct conflict with the Constitution
• by amending the Law On Prevention of Corruption, to strip the NACP of its policy-making powers since such powers are uncharacteristic of central executive bodies that are not ministries. The NACP should sole responsibility should be only the implementation of anti-corruption policy
• to grant the authority to develop strategic anti-corruption documents to the Ministry of Justice and the authority to approve such documents — to the Cabinet.