Unconstitutional dismissal of Constitutional Court judges, option to draft army reservists without mobilization, and attempt to provide financial aid to Ukrainians affected by lockdown: one week from President’s life
The newsmaker of the week is going to be the President. These weekends he decided to make another attempt to challenge the Constitution and issued a decree dismissing two judges of the Constitutional Court. He also initiated a special plenary meeting of the Verkhovna Rada where MPs will vote on a bill granting the President the authority to draft army reservists without mobilization and another presidential bill providing financial aid to payroll employees and microbusinesses that lost their income due to the strengthened lockdown restrictions.
Cancellation of decrees appointing Tupytskyi and Kasmanin as judges of the Constitutional Court (Decree № 124/2021)
Decision-maker: the Cabinet.
Who is affected: the Constitutional Court and the President.
Decree in a nutshell: decrees appointing judges of the Constitutional Court Tupytskyi and Kasminin are canceled.
What is wrong:
- the decree is unconstitutional. Although presidential decrees are one of the legitimate tools for exercising his constitutional powers, the Constitution by no means grant him the authority to dismiss judges of the Constitutional Court
- if the judges of the Constitutional Court are dismissed, the President will be able to appoint his proxies in their stead. There was a recent precedent when Viktor Kytchun (nominated by the Servant of the People faction) had been appointed the judge of the Court and in his speech hinted that he is loyal to the presidential party. The President is trying to expand his influence over the institution that should be independent
- if the judges of the Constitutional Court are unconstitutionally dismissed, this is a signal that guarantees of independence granted to them are now void. Judges appointed after them by the President and the Verkhovna Rada will be loyal rather than impartial and objective.
What else: constitutional changes of 2016 transformed the judiciary and the Constitutional Court into systems closed to external influences — supposedly to make them independent. However, the independence of a state body is not an absolute category. It envisages more complicated appointment procedures, additional protection from arbitrary dismissals, stricter penalties for interference with the work of such a body, some financial and social stimuli to minimize risks of external influences on representatives of the body. Still, no government body can be fully autonomous since that will contradict the fundamental principle of checks and balances between branches of government.
Alternative solution: to grant the legislator the power to impeach judges and judges of the Constitutional Court in special cases. The impeachment procedure should be complicated enough not to be abused but realistic and effective.
Option to draft army reservists without mobilization (3553)
Status: ready for the second reading.
Who is affected: the President, the Verkhovna Rada, army reservists, the Armed Forces and other military units.
Bill in a nutshell: the President will get the right to announce the draft of army reservists during the special period without a decision on mobilization approved by the Verkhovna Rada.
What is wrong:
- lack of parliamentary control over the number of soldiers of the Armed Forces and other military units can result in excessive militarization and be used to institute a dictatorship
- the bill violates the terms of contracts with persons that chose to sign up for serving in the reserve. By signing their contracts, they have not given consent to be drafted without mobilization
- the bill discriminates against persons included in the reserve on a mandatory basis: those recently discharged from service could be drafted again and again. At the same time, a significant number of Ukrainians liable for military service have not served their term even once
- the bill can provoke social tension and demotivate soldiers that face the perspective to be drafted once more
- recurrent drafts of army reservists back to service will interfere with their readjustment and make it harder for them to find jobs. Employers will be unwilling to hire employees that at any moment can be drafted back to service.
Alternative solution: if Ukraine wants to have a motivated and properly trained operative army reserve, the bill should be restricted: it should apply only to soldiers that willingly sign new contracts to serve in the reserve with a provision to be drafted without mobilization.
Reservists should get additional stimuli to sign such contracts, in particular financial. For example, the state can:
- set a certain percentage of positions in government bodies, state-owned companies and organizations to be filled exclusively with persons that agreed to sign up for army reserve service
- introduce tax benefits for private enterprises hiring army reservists
- pay for service in the reserve. Payment should be comparable to those received by active-duty servicepersons (taking into account ranks and occupations).
Lockdown compensations (5300)
Status: included on the parliamentary agenda.
Who is affected: sole proprietors and payroll employees that had to stop their work during the lockdown due to restrictions imposed by the Government.
Decree in a nutshell: sole proprietors and payroll employees of enterprises, companies, and organizations that had to stop their work due to the lockdown restrictions introduced since February of 2021 will be eligible for compensation from the government budget and local budgets:
- compensations from the government budget are set at ₴8,000
- compensation amount to be provided from local budgets will be set by local governments at their discretion.
What is right: the state compensates some of the losses from restrictions it introduced and helps payroll employees and sole proprietors affected by the lockdown to deal with financial difficulties.
What is wrong:
- no law can tell local governments how to spend their money. They approve their budgets and have the exclusive authority to select budgeted items
- if the bill’s provision on aid from local budgets is passed, it can cause social tension because of the inequality. Budgets of villages and settlements lack the resources of the capital and big cities so compensations they can provide will be significantly smaller. Restrictions on economic activities, though, are the same for any territory designated as “red quarantine zones”.
Alternative solution: exclude the provision on local budgets from the bill. Local governments can make their own decisions and do not need to be told whether to provide financial aid for their local businesses and payroll employees or introduce some tax benefits within their authority.
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