Law on NABU, rulemaking procedures, and Ukrainian citizenship for foreigners in the Armed Forces
21 October 2021
The Verkhovna Rada finally finished with personnel issues and started to work on draft bills. The big news is the adoption of a long-awaited law bringing the legal status and work of the National Anti-Corruption Bureau of Ukraine into compliance with the constitutional requirements. In addition, MPs are going to consider in the first reading the draft bill introducing a simplified naturalization procedure for foreigners that served or are serving in the Armed Forces of Ukraine. Another important draft bill on the parliamentary agenda is a “law on laws” — a draft bill on lawmaking procedures.
Legal status of the NABU
Draft bill #5459-1 of May 13, 2021
Status: passed as a law.
Who is affected: the Cabinet, the President, the Verkhovna Rada, and the National Anti-Corruption Bureau of Ukraine.
Background: in 2014, the NABU was created as a law enforcement agency. The law provisioned that members of the committee for the selection of the Director and NABU auditors are appointed by the President, the Verkhovna Rada, and the Cabinet on a parity basis. A final decision on the appointment of the selected candidate was to be made by the President. The Verkhovna Rada, on the other hand, got the authority to dismiss the Director on the grounds defined by the law.
The procedures for the appointments and dismissals in question were unconstitutional:
- although the NABU by nature should have being a part of the executive branch, it was created as an independent body
- in violation of the Constitution, the law expanded the authority of the Verkhovna Rada and the President.
As a result, in 2020 the Constitutional Court of Ukraine ruled some of the provisions of the Law on NABU unconstitutional thus creating uncertainty about the legal status and further work of the Bureau.
Summary of the law:
- NABU lost its status as an independent law enforcement agency and became a central executive body.
- The President and the Verkhovna Rada lost their uncharacteristic powers to appoint members of the committee for the selection of the NABU Director, to appoint and dismiss the Director, to take part in the selection of NABU auditors.
- The Cabinet was granted the authority to direct and coordinate the work of NABU within limits defined by law. It also now appoints the NABU Director.
- Members of the committee on the selection of the Director and the Commission on the Evaluation of NABU’s Work will be appointed by the Cabinet taking into account the proposals from the international partners.
- The law introduced a number of safeguards to prevent the Cabinet from interfering with the day-to-day activities of the NABU.
What is right: the law is compliant with the Constitution of Ukraine, so from now on NABU is a part of the executive branch and there is no threat of its work being called into question as constitutionally doubtful.
What else: the Law on the State Bureau of Investigation should also be amended in a similar manner to make it compliant with the Constitution.
Simplified naturalization procedure for foreigners serving in the Armed Forces of Ukraine
Draft bill #5630 of June 7, 2021
Status: first reading.
Who is affected: foreigners and stateless persons applying for Ukrainian citizenship.
Background: at the end of 2015, the Verkhovna Rada adopted the law allowing foreigners and stateless persons to sign contracts to serve in the Armed Forces and later apply for Ukrainian citizenship. However, foreign volunteers have trouble with naturalization because it is often hard to repudiate their current citizenship and Ukraine does not allow dual citizenship. In particular, this is a problem for persons from Russia and Belarus.
Summary of the bill:
- Applicants can submit a declaration repudiating their foreign citizenship instead of an actual repudiation in cases when it is impossible to denaturalize in principle or their applications for repudiation were refused.
- Declaration repudiating foreign citizenship can be submitted by:
- current and former members of the Armed Forces, persons awarded for their service
- persons honored for outstanding service to the Ukrainian state or whose naturalization is a matter of state interest
- citizens of the Russian Federation that were persecuted by their country
- children of foreigners if one of the parents or guardians repudiated foreign citizenship via submitting a proper declaration.
- The requirement of continued residency for foreigners that served in the Armed Forces of Ukraine is eased to 3 years before applying for Ukrainian citizenship.
- Ukrainian citizenship can be granted to foreigners accused of criminal offenses or felonies outside Ukraine if such accusations are politically motivated by the aggressor state or a state not recognizing the territorial integrity of Ukraine.
What is right: if adopted, the draft bill will remove bureaucratic obstacles for naturalization of foreigners serving in the Armed Forces and persons honored for outstanding service to the Ukrainian state. In addition, the bill protects volunteers from the Russian Federation and Belarus from been abused by their states.
What is wrong: the Law on the National Guard of Ukraine allows foreigners to sign the contract not only with the Armed Forces but also with the National Guard. Changes proposed by the bill, though, will apply only to those serving in the Armed Forces. Therefore, foreigners in the National Guard will be discriminated against by obstacles preventing them from naturalization. This shortcoming should be amended before the second reading.
Lawmaking procedures
Draft bill #5707 of May 26, 2021
Status: first reading.
Who is affected: MPs, the President, the Cabinet, ministers, heads of local state administrations, government bodies, local governments, and Ukrainian citizens.
Summary of the bill:
- defines basic requirements for lawmaking, in particular, for the structure of regulatory acts, nomenclature, language, style, content, and lawmaking technique
- denies the President, the Parliament, and the Government the right to delegate their lawmaking powers
- defines the structure and hierarchy of regulatory acts in Ukraine: from the Constitution and laws to ordinances by local governments and acts by professional associations
- introduces requirements with respect to planning for lawmakers, legal projections, and scientific concept of legal development
- provisions that public consultations must be held before regulatory acts regulating particular rules of behavior can be submitted
- creates a unified state register of regulatory acts that will be maintained by the Ministry of Justice.
What is right:
- Ukraine needs “the law on laws” regulating basic principles of lawmaking
- the draft bill defines basic requirements for lawmaking and structure of normative documents. For now, the quality of regulatory acts is poor, they diverge in nomenclature, structure, and style.
What is wrong: the requirement of conducting public consultations is redundant. It is often important for the Cabinet, the President, and the Parliament to act quickly while making an important decision, so there will be no time to conduct consultations. In addition, the proposed procedure for public consultations makes it impossible to register alternative draft bills. Public consultations should be held about concepts, strategies, and drafts of state policies, not finalized documents.
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