SECTORAL BRIEF “PARLIAMENTARY REFORM” Reform Conference / Vilnius, 2020

SECTORAL BRIEF “PARLIAMENTARY REFORM”

Authors: Oleksandr Zaslavsky, Director of the Analytical Division of the Legislative Initiatives Laboratory; Svitlana Matviyenko, Head of Board, the Agency for Legislative Initiatives

Reviewer: Yuliia Kyrychenko, Member of the Board, Head of Constitutional Law Projects at the Center for Political and Legal Reforms, Co-Chair of the RRP Coalition Council

1. Evaluation of reform policies of the Parlia- provisions of which have been outlined in the To- ment and the President during the period of ronto Principles: 1) to update the Roadmap on September 2019 – August 2020 and its com- internal reform of the , in particular pliance with the Toronto Principles (prelimi- to approve a new concept of the legislative pro- nary recommendations) (based on the analysis cess; 2) to approve the Law “On Peculiarities of of the Government Program, the plans of the Civil Service in the Parliament of Ukraine”; 3) to ministries and the adopted/rejected regulato- develop and approve the Code of MPs Ethics. ry acts) As of the end of August 2020, none of these Problematic aspects of the work of the Ukrainian recommendations had been implemented, al- Parliament have been repeatedly emerging over though work on the bill “On Peculiarities of Civil the past 10 years: starting with the phenome- Service in the Parliament of Ukraine”4 had been non of “button-pushing” and ending with the restored, a new working group on the reform of adoption of laws that contain explicitly unconsti- the Parliament was established and instructed tutional norms. The presentation of the Report to prioritize / update the 52 recommendations and Roadmap on internal reform and enhanc- approved in 2016 by order of the Speaker of the ing the institutional capacity of the Parliament Parliament, and intentions to at least adopt the of Ukraine by the European Parliament Assess- Code for MPs Ethics for the MPs of the Parlia- ment Mission in the end of February 20161 can mentary majority were proclaimed in the me- be considered as the beginning of the current dia. In addition, the Parliamentary Rules are stage of comprehensive Parliamentary reform2. still inconsistent with the current Constitution Unfortunately, less than 45% of this reform has of Ukraine, and the work on improvement of the been implemented during the last three years. legislative process and operation of the Parlia- Moreover, until the termination of Parliament’s ment is generally sporadic rather than systemic. eighth convocation, no draft law that could affect key aspects of the legislative process had been Hence, during the first two sessions of the Par- adopted. liament of the 9th convocation, a number of laws, which introduced mostly selective changes to the In the run-up to the election of a new Parlia- Parliamentary Rules were adopted. One of the ment, a number of NGOs initiated the agenda for most complex changes was the improvement of the Parliamentary Reform3, the most important the electronic document flow in the Parliament,

1 http://www.europarl.europa.eu/resources/library/media/20160301RES16508/20160301RES16508.pdf 2 Assessment of implementation of internal reform and enhancement of institutional capacity of the of Ukraine. Access mode: https://parliament.org.ua/wp-content/uploads/2019/03/parliament_roadmap_report_eng.pdf 3 The Verkhovna Rada of Ukraine Reform Agenda. Access mode: http://rada2019.parliament.org.ua/ 4 Information on the results of the roundtable discussion on parliamentary reform. Access Mode: https://www.facebook.com/ VRUreform/posts/514628929266676?__tn__=K-R 1 according to which the documents could exist in of the law on political parties was also initiated. both electronic and written forms. Moreover, in October 2019, an opportunity to introduce a Plan According to the recommendations in the of Legislative Activities that should improve the Roadmap, the number of parliamentary com- planning of the Parliament’s work was also pro- mittees has been reduced and optimized to 23. vided, while in June 2020 the Plan for the current year was approved by the Parliament. In addition, 2. Current challenges / issues in the relevant the amendments to the Parliamentary Rules in- policy area creased the powers of committees to prepare One of the biggest challenges is the lack of po- draft bills for consideration at the session room. litical experience and legal knowledge of the de- On the other hand, the Parliamentary Reform cision-makers (both MPs and the President of Office5 (which can act as a focal point for reform) Ukraine). The first and foremost demonstration was launched during the Parliament’s 9th con- of that was the provision of sporadic initiatives vocation, although its creation was the result of to amend the . Thus, a the joint work of previous political leadership of number of constitutional changes were initiated, the Parliament and technical assistance pro- which were represented as the “parliamentary jects. reform”, though in reality they were not: intro- duction of a declarative legislative initiative of Meetings of members of parliamentary factions the people, reduction of the constitutional com- and groups in the Jean Monnet Dialogue format6 position of the Parliament to 300 MPs, abolition have also been resumed in the new convocation of parliamentary immunity, extension of the of the Parliament. The very fact of holding such grounds for early termination of a MP’s powers. meetings, as well as the participation of the In addition to the fact that these initiatives were people’s deputies responsible for parliamentary not elements of a comprehensive reform of the reform in the 8th convocation (in particular, the Parliament and were populist in character, they previous Head of the Parliament, Andriy Paru- also were of poor quality in terms of legal writ- biy), demonstrates the succession and intention ing, as evidenced by three negative conclusions of the political leadership of the Parliament to of the Constitutional of Ukraine (hereinaf- continue the parliamentary reform. ter — the CCU) and two conclusions of the CCU Effective introduction of digital tools in the work with reservations (out of seven initiated projects). of the Parliament during the COVID-19 pandem- Amendments adopted in the regulation aimed ic should also be noted, in particular the organi- to hold MPs accountable are populist rather zation of online committee meetings. than rationally justified: 1) due to the aboli- Moreover, a working group on the preparation tion of parliamentary immunity; 2) for violation of the draft Law on Regulatory Acts began its of the prescription of personal voting; 3) for work at the Ministry of Justice of Ukraine, with non-participation in voting; are rather populist the direct involvement of the first Deputy Speak- than rationally justified. Criminal liability for er of the Parliament, as well as the wide range “button-pushing”, the only crime that deter- of experts (including representatives of the civil mined a special subject — a People’s Deputy of society). Adopting such a law is one of the key el- Ukraine – was unjustifiably introduced. ements of improving the legislative process and Such a situation indicates that the key actors enhancing the quality of legislative initiatives. In lack a conceptual vision for parliamentary re- addition, in the end of May 2020, work on a bill form. This is also confirmed by some initia- on the opposition and the relationship between tives to amend the Parliamentary Rules, which, the coalition and the opposition was launched again, may grant political benefits in the short with the participation of the First Deputy Speak- term (speed up and facilitate the majority of the er. Moreover, work on developing a new version law-making process), but will have negative con-

5 Information about the official signing of the decree by the Head of the Verkhovna Rada on the establishment of the Office of Parliamentary Reform. Access mode: https://iportal.rada.gov.ua/fsview/167443.html 6 Information on the results of the seventh round of reconciliation of positions by various parliamentary forces in the format of Jean Monnet Dialogues. Access mode: https://iportal.rada.gov.ua/fsview/185373.html 2 sequences for parliamentarism in general (lim- es of the Constitutional Court of Ukraine, reg- iting parliamentary minority opportunities and ulation of the status of the coalition, as well as balance so non-perfect regulatory procedures). the mechanisms of its formation and numbers It concerns the almost immediately postponed estimation, etc; draft law No. 2691 and a draft law No. 3018, reg- 2. To revise the Roadmap for internal reform istered in early February and withdrawn on Sep- of the Parliament in order to revise recom- tember 1, 2020. mendations that have become obsolete or of Amendments to the Parliamentary Rules on the doubtful relevance in the context of the domes- introduction of a special procedure for consid- tic parliamentary practices; eration of bills in the second reading in case of 3. To approve the concept of the legislative a large number of proposals and amendments process “from start to finish”, which should be (more than 500) from the subjects of the legisla- agreed between all subjects of the legislative tive initiative are also quite ambiguous. Although process and correlate with the ongoing reform this mechanism has unblocked the considera- of public administration; tion of the so-called “anti-Kolomoisky bill” and allows the majority to counter minority obstruc- 4. To develop and adopt laws aimed at insti- tion through “corrective spam”, globally the tutional strengthening of the supervisory func- problem of “legislative spam / tsunami” from tion of the Parliament; MPs still needs to be addressed systematically. 5. To adopt the Law on Regulatory Acts in or- Finally, the current situation of a real imbalance der to ensure effective division of the sphere of power between the actors of the decision-mak- of regulation of laws and secondary laws, as ing system is one of the biggest challenges in the well as to establish uniform rules for drafting implementation of parliamentary reform. Under laws, their harmonization between the inter- the declared parliamentary-presidential form of ested entities, the procedure for interaction of government, the real influence on the formation subjects of legislative activity, as well as entry of the Government and its policy belongs not to the laws into force, and their monitoring and the Parliament, but to the President of Ukraine. implementation evaluation; This is evidenced, in particular, by the practice 6. To develop and approve the Code of MPs’ of appointing the Government with the formal Ethics, taking into account the international support of Parliament or individual ministers in standards of activity of the MPs; the interim role without parliamentary support at all. This situation cannot but affect the per- 7. To adopt the Law “ On Peculiarities of Civil formance of Parliament’s supervisory function, Service in the Verkhovna Rada of Ukraine”; which currently is extremely institutionally weak. 8. To organize the process of elaborating on At the same time, the long-awaited and regis- comprehensive amendments to the Constitu- tered in May 2020 bill on interpellation was first tion of Ukraine in the Parliament with the in- sent for revision, and then withdrawn on Sep- volvement of a wide range of stakeholders in tember 1, 2020. order to enhance the role of Parliament and to resolve existing internal problems arising from 3. Recommendations for priority actions in the provisions of the Constitution of Ukraine: 2020-2021, in particular, for the agenda of Par- a) change the rules of voting for the laws by liament’s fourth session a simple majority in the presence of a certain 1. To harmonize the Parliamentary Rules with quorum; b) limit the individual right of legisla- the Constitution of Ukraine. In particular, the tive initiative of the MPs; c) abolish the imper- selection of candidates for the position of judg- ative mandate.

These analytical briefings have been developed by civic experts and reflect the position of civil society. All briefings have gone through a process of public consultation and discussion and adequately reflect the views of citizens. 3