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Wins in Parliament vs problems in courts: Why changes to Constitution by Zelensky can fail?

Author : Natalia Lebed

Today Ukrainian Parliament continued its actions aimed at removal of parliamentary immunity. This time, Zelensky’s team needed not the minimum required 226, but 300 votes at once. However, given the fact that 363 MPs voted for the bill in the first reading, there was no problems. At least within the walls of the Verkhovna Rada. Problems may begin in the courts, as changes to the Constitution are being made with clear violations
22:43, 3 September 2019

Verkhovna Rada
Zoya Shu/112.ua

Why the voting to lift immunity worth nothing?

The former deputy chairman of the Central Election Commission Andriy Magera explains: “I don’t know who advised the Servant of the People party to preliminarily approve the bill on amendments to the Constitution at the first session, but this was done either because of professional unsuitability, or intentionally. The first session is not regular. Similarly, the regular session is not extraordinary, "he noted.

In a word, the requirement that amendments to the Constitution be adopted at two consecutive regular sessions of the Verkhovna Rada was not observed. Therefore, voting on the night of August 29-30 does not cost anything. "Violation of the voting procedure for amending the Constitution is a direct road to declaring it unconstitutional. Sooner or later, but surely! The Constitutional Court will repeal this law because of a violation of the procedure for its adoption, and the MPs immunity will be returned," Oleg Lyashko predicts.

In addition, he adds, "over the past 20 years, MPs have voted at least five times to remove their immunity." But further there was the Constitutional Court, Lyashko recalls. True, regarding the bill 7203, for which the MPs voted on August 29, there is a positive opinion of the Constitutional Court. This bill was prepared under the presidency of Petro Poroshenko, and on June 19, 2018, the Constitutional Court gave it the green light. But then the court evaluated its text in terms of compliance with the Basic Law. Now, constitutionalists may object to an apparent violation of the procedure. And so, the MPs will have to start all over again.

But in general, the problem is not even in that. The Ukrainian parliament knows precedents when MPs were deprived of immunity on the proposal of the prosecutor general. The absence of a special law did not prevent this; the law enforcement bodies interfered. “How many MPs of the previous convocation, from which the parliamentary immunity were removed, were prosecuted? The problem lies with law enforcement officers and the courts, which are afraid to initiate proceedings and prosecute the criminal,” said Bohdan Petrenko, deputy director of the Ukrainian Institute for the Study of Extremism.

Give a vote!

The MPs continue to make attempts to deprive themselves of immunity. Bill No. 7203 removed the Constitutional provision that MPs cannot be prosecuted, detained or arrested without the consent of the Verkhovna Rada, and that they are guaranteed parliamentary immunity. In the event of a repeated positive vote for this document from January 1, 2020, all MPs will become officially without immunity. But this is in theory. In practice, as already noted, the Constitutional Court may declare the law on the lifting of immunity unconstitutional - because of a violated adoption procedure.

Related: Verkhovna Rada sends bill on people’s legislative initiative to Constitutional Court

But so far, the Parliamentary Committee on Legal Policy has recommended to adopt bill No. 7203 in the second reading. At the committee meeting on September 2, MPs Vlasenko and Knyazevych tried to explain to their colleagues that the violation of the rules continues, because the committee should not meet between sessions. While the second session of the Verkhovna Rada IX will begin only on September 3. But the "committee" did not understand or ignored the comments.

As a result, Vlasenko left the meeting with the words "my legal experience taught me that I should not take part in illegal actions. I consider these actions illegal, I will not take part in the committee meeting today."

The experts, however, believe that Vlasenko’s personal demarche will not affect the position of the "Fatherland" party as a whole. After the faction of Yulia Tymoshenko regained the chair of the second vice-speaker, “Fatherland” became the official ally of “Servant of the people”. At least situational one. Therefore, on September 3, the bill on the removal of parliamentary immunity will be supported. In particular, with the help of this party.

But the problem is that Volodymyr Zelensky wants not only the abolition of parliamentary immunity. His plans are broader. On the website of the Verkhovna Rada 18 bills of authorship of the President are currently registered. Some of them require amendments to the Constitution. And this means that the question of finding 300 votes for the approval will arise on the agenda with a certain frequency.

What does Zelensky want to rewrite in Constitution?

Moreover, Zelensky is not only fruitful, but also a creative author. Among the innovations he proposed is the initiative to reduce the parliamentary corps - from 450 to 300 members. This is bill No. 1017 regarding amendments to the 76th and 77th articles of the Constitution.

In addition, the head of state continues the policy of expanding presidential powers and building a power and law enforcement vertical "for himself". As part of this, Zelensky prepared bill No. 1014, he proposes to amend the Article 106. This article is the longest list of presidential opportunities, and Zelensky seeks to add new levers of influence to the existing resource, namely the right to "form independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the directors of the National Anti-Corruption Bureau of Ukraine and the director of the State Bureau of Investigation."

Two more bills - No. 1027 and No. 1028 - affect amendments to Articles 81 and 85 of the Constitution of Ukraine, respectively. The first significantly expands the list of reasons on the basis of which the MP can lose his mandate (this is non-personal voting, and the non-inclusion of the MP in the faction of the party from which he was elected, and systematic absenteeism, and engaging in activities incompatible with the title of MP). The second bill provides for the establishment of "advisory and other subsidiary bodies of the Verkhovna Rada of Ukraine." What exactly is being discussed is not clear, the explanatory note to the bill only indicates that the new institutions will make the work of the parliament more efficient.

And with bill No. 1016 Zelensky proposes to rewrite two articles of the Constitution at once - the 85th and 101st. We are talking about the establishment of a new position - "Person authorized by the Verkhovna Rada of Ukraine to comply with the Constitution of Ukraine and laws in certain areas." The new commissioners were needed because the existing ombudsman (called on to oversee the observance of human rights) could not cope with the volume of tasks assigned to him. So is indicated in the explanatory note.

Related: Ministry of Digital Transormation created in Ukraine

But the most unexpected of all that came from Zelensky’s pen are the following two bills. This is No. 1013, which proposes to abolish the advocate monopoly enshrined in the Constitution. This refers to a number of provisions, according to which "only a lawyer shall represent another person in court." It’s worth putting a big question mark here. According to the explanatory note, "the purpose of the amendments proposed by the bill is to ensure everyone's right to receive professional legal assistance through the abolition of the monopoly on the provision of such assistance." However, to understand the essence of novation, clear details are lacking: who in this case, except for the lawyer, is given the right to represent the interests of a person in court? The text of the bill, which consists of literally several proposals, does not reveal the presidential plan.

The situation with editing article 93rd is even less clear. Bill No. 1015 proposes to expand the list of subjects of legislative initiative. In accordance with the current version of the Constitution, the Verkhovna Rada, the President, the Cabinet of Ministers and the National Bank have the right to write laws. However, Zelensky saw the need to add “the people of Ukraine” to lawmakers.

And again: the details of how the people of Ukraine will write and propose new laws, how these laws will be submitted to the parliament, who will provide the authors with legal assistance that is binding in such cases, - these things are hidden from the reader's eye. Or does this mean the preparation of petitions that were started under Poroshenko, or some kind of similar procedure, or is it a fundamentally different algorithm? The answers to these questions are unknown, but in general, the thesis that the people of Ukraine write laws themselves sounds beautiful. And, of course, opportunistic.

"The project on the legislative initiative of the people is stupid from the point of view of constitutional law, but from the point of view of populism it is super," Vadym Karasiov comments. "The People’s Legislative Initiative - the interests of MPs are not affected here, so why not support it?" - adds a rhetorical question Bogdan Petrenko. In a word, as Karasiov says, “the populist revolution continues,” and it’s hard to disagree.

Related: Ukrainian Parliament sends draft bill on punishment for non-personal voting to Constitutional Court

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