Constitutional amendments on changing the appointment procedures for NABU and SBI directors

This week the Verkhovna Rada can start the process of amending the appointment procedures for NABU and SBI directors. The NABU and the SBI were created in 2015-2016 and since then the appointment procedures for heads of both agencies were and remain unconstitutional. Today we examine in detail how MPs plan to change the Constitution and who will appoint NABU and SBI directors if the bill is passed.

Constitutional amendments on appointment and dismissal procedures for positions of NABU and SBI directors (5133)

Cosponsors: 237 MPs from the Servant of the People faction, including the chairperson of Servant of the People faction Davyd Arakhamiia and the First Deputy Chairperson of the Verkhovna Rada Ruslan Stefanchuk.

Status: ready to be sent to the Constitutional Court to be reviewed for compliance with the Constitution.

Who is affected: the President, the Parliament, the Constitutional Court, the SBI, and the NABU.

What does the bill propose:

  • to grant the President the authority to appoint and dismiss NABU and SBI directors with the consent of the Verkhovna Rada
  • to introduce mandatory competitions for candidates applying for the directors’ positions.

Background: in 2014-2015, MPs passed laws on the NABU and the SBI and granted the authority to appoint and dismiss directors of both agencies to the President. However, the President and the Parliament can act only within powers granted them by the Constitution, and the Constitution does not say anything about the SBI or the NABU.

In September of 2020, the Constitutional Court ruled unconstitutional the presidential decree appointing Artem Sytnyk the NABU Director and several provisions from the law defining the powers of the President. The same fate can befall other provisions that grant extra powers to the President and the Parliament, so now MPs are trying to introduce amendments before the Constitutional Court issues its next decisions.

President Zelensky has already tried to do the same when the Verkhovna Rada of the 9th convocation just had come to power. The Constitutional Court, however, has issued a negative conclusion on his draft bill, so it had to be discarded. This time 237 MPs from the Servant of the People faction are trying to fulfill the task that their leader has failed to accomplish.

What is right: the bill will grant the President and the Parliament the authority to appoint and dismiss NABU and SBI directors without violating the Constitution. For now, regular laws give them the power to participate in appointing and dismissing the heads of NABU and SBI but these laws do not comply with the Constitution. As a result, the work of both agencies is at risk.

What is wrong:

  • the bill solves only the problem with appointing and dismissing NABU and SBI directors but introduces no safeguards preventing the excessive influence of the President on the heads of both agencies:
  • if the bill is not amended, the appointment procedures for NABU and SBI directors will be similar to the ones for the Prosecutor General and the Head of the SSU except for mandatory competitions. It is a commonplace practice for Ukrainian presidents to gather MPs’ votes for their candidates for the Prosecutor General and the Head of the SSU
  • since appointment decisions are ultimately dependent on the President and the Parliament, there is a risk that despite transparent and fair competitions the heads of NABU and SBI will remain under their influence
  • also, the bill does not change the following unconstitutional provisions:
  • the Verkhovna Rada and the President each appoint three members of the contest committee for the selection of the NABU and SBI directors
  • the President approves the provision on the NABU Civil Oversight Council and the procedure of its formation
  • the President and the Verkhovna Rada appoint NABU auditors.

Additional information: the bill solves only some of the legislative problems with SBI and NABU. It does not address the issue of their place within the system of state institutions of Ukraine.

In essence, both SBI and NABU are law enforcement agencies and thus a part of an executive branch. To work effectively, they have to be a part of the governmental hierarchy. Instead, the proposed changes de facto remove the Cabinet from the most important personnel decisions concerning the two agencies and thus deprive it of any influence over them.

Alternative solutions: there are two viable alternatives:

  • to take away all powers concerning the NABU and the SBI from the President and the Verkhovna Rada and give them to the Cabinet. Then there will be no need to change the Constitution because, unlike the President and the Parliament, the authority of the Cabinet can be defined by regular laws. This approach will allow to preserve the unity of the executive branch and introduce:
  • mandatory competitions
  • safeguards that will protect the heads of both agencies from unjust dismissals and external influences
  • to introduce a new chapter regulating the work of anti-corruption bodies and national regulators into the Constitution. As well as appointment and dismissal procedures, it should also include the reasons for appointments and dismissals. and additional safeguards to minimize the political influence over the work of both agencies. For example, terms in office for the agencies’ heads can be extended up to seven or more years, newly-elected parliaments can be prohibited from dismissing the directors during some time after been elected — any mechanisms making the work of the agencies less dependent on electoral cycles can be such a safeguard.

What’s next: the Parliament has to approve the resolution sending the bill with the constitutional amendments to the Constitutional Court. The Court has to decide whether the proposed changes do not infringe or limit human rights, threaten the independence or territorial integrity of Ukraine and whether Ukraine is now under martial law or in a state of emergency. The Constitution cannot be changed if any of the conditions listed above occur.

If the Court decides that the bill is constitutional, the Verkhovna Rada will be free to adopt it in the first reading during a parliamentary session (with 226 votes minimum), and during the next session will need to vote once more (with 300 votes minimum) for the bill to become a law.

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