1. Evaluation of reform policies of the Parliament and Government during the period of September 2019 – August 2020 and its compliance with the Toronto Principles (based on the analysis of the Government Program, the plans of the ministries and the adopted/rejected regulatory acts)
Problematic aspects of the work of the Ukrainian Parliament have been repeatedly emerging over the past 10 years: starting with the phenomenon of "button-pushing" and ending with the adoption of laws that contain explicitly unconstitutional norms. The presentation of the Report and Roadmap on internal reform and enhancing the institutional capacity of the Parliament of Ukraine by the European Parliament Assessment Mission in the end of February 2016 can be considered as the beginning of the current stage of comprehensive Parliamentary reform. Unfortunately, less than 45% of this reform has been implemented during the last three years. Moreover, until the termination of Parliament's eighth convocation, no draft law that could affect key aspects of the legislative process had been adopted.
In the run-up to the election of a new Parliament, a number of NGOs initiated the agenda for the Parliamentary Reform, the most important provisions of which have been outlined in the Toronto Principles: 1) to update the Roadmap on internal reform of the Parliament, in particular to approve a new concept of the legislative process; 2) to approve the Law "On Peculiarities of Civil Service in the Parliament of Ukraine"; 3) to develop and approve the Code of MPs Ethics.
As of the end of August 2020, none of these recommendations had been implemented, although work on the bill “On Peculiarities of Civil Service in the Parliament of Ukraine” had been restored, a new working group on the reform of the Parliament was established and instructed to prioritize / update the 52 recommendations approved in 2016 by order of the Speaker of the Parliament, and intentions to at least adopt the Code for MPs Ethics for the MPs of the Parliamentary majority were proclaimed in the media. In addition, the Parliamentary Rules are still inconsistent with the current Constitution of Ukraine, and the work on improvement of the legislative process and operation of the Parliament is generally sporadic rather than systemic.
Hence, during the first two sessions of the Parliament of the 9th convocation, a number of laws, which introduced mostly selective changes to the Parliamentary Rules were adopted. One of the most complex changes was the improvement of the electronic document flow in the Parliament, according to which the documents could exist in both electronic and written forms. Moreover, in October 2019, an opportunity to introduce a Plan of Legislative Activities that should improve the planning of the Parliament’s work was also provided, while in June 2020 the Plan for the current year was approved by the Parliament. In addition, the amendments to the Parliamentary Rules increased the powers of committees to prepare draft bills for consideration at the session room.
On the other hand, the Parliamentary Reform Office (which can act as a focal point for reform) was launched during the Parliament's 9th convocation, although its creation was the result of the joint work of previous political leadership of the Parliament and technical assistance projects.
Meetings of members of parliamentary factions and groups in the Jean Monnet Dialogue format have also been resumed in the new convocation of the Parliament. The very fact of holding such meetings, as well as the participation of the people's deputies responsible for parliamentary reform in the 8th convocation (in particular, the previous Head of the Parliament, Andriy Parubiy), demonstrates the succession and intention of the political leadership of the Parliament to continue the parliamentary reform.
Effective introduction of digital tools in the work of the Parliament during the COVID-19 pandemic should also be noted, in particular the organization of online committee meetings.
Moreover, a working group on the preparation of the draft Law on Regulatory Acts began its work at the Ministry of Justice of Ukraine, with the direct involvement of the first Deputy Speaker of the Parliament, as well as the wide range of experts (including representatives of the civil society). Adopting such a law is one of the key elements of improving the legislative process and enhancing the quality of legislative initiatives. In addition, in the end of May 2020, work on a bill on the opposition and the relationship between the coalition and the opposition was launched with the participation of the First Deputy Speaker. Moreover, work on developing a new version of the law on political parties was also initiated.
According to the recommendations in the Roadmap, the number of parliamentary committees has been reduced and optimized to 23.
2. Current challenges / issues in the relevant policy area
One of the biggest challenges is the lack of political experience and legal knowledge of the decision-makers (both MPs and the President of Ukraine). The first and foremost demonstration of that was the provision of sporadic initiatives to amend the Constitution of Ukraine. Thus, a number of constitutional changes were initiated, which were represented as the “parliamentary reform”, though in reality they were not: introduction of a declarative legislative initiative of the people, reduction of the constitutional composition of the Parliament to 300 MPs, abolition of parliamentary immunity, extension of the grounds for early termination of a MP’s powers. In addition to the fact that these initiatives were not elements of a comprehensive reform of the Parliament and were populist in character, they also were of poor quality in terms of legal writing, as evidenced by three negative conclusions of the Constitutional Court of Ukraine (hereinafter - the CCU) and two conclusions of the CCU with reservations (out of seven initiated projects).
Amendments adopted in the regulation aimed to hold MPs accountable are populist rather than rationally justified: 1) due to the abolition of parliamentary immunity; 2) for violation of the prescription of personal voting; 3) for non-participation in voting; are rather populist than rationally justified. Criminal liability for “button-pushing”, the only crime that determined a special subject – a People's Deputy of Ukraine – was unjustifiably introduced.
Such a situation indicates that the key actors lack a conceptual vision for parliamentary reform. This is also confirmed by some initiatives to amend the Parliamentary Rules, which, again, may grant political benefits in the short term (speed up and facilitate the majority of the law-making process), but will have negative consequences for parliamentarism in general (limiting parliamentary minority opportunities and balance so non-perfect regulatory procedures). It concerns the almost immediately postponed draft law No. 2691 and a draft law No. 3018, registered in early February and withdrawn on September 1, 2020.
Amendments to the Parliamentary Rules on the introduction of a special procedure for consideration of bills in the second reading in case of a large number of proposals and amendments (more than 500) from the subjects of the legislative initiative are also quite ambiguous. Although this mechanism has unblocked the consideration of the so-called "anti-Kolomoisky bill" and allows the majority to counter minority obstruction through "corrective spam", globally the problem of "legislative spam / tsunami" from MPs still needs to be addressed systematically.
Finally, the current situation of a real imbalance of power between the actors of the decision-making system is one of the biggest challenges in the implementation of parliamentary reform. Under the declared parliamentary-presidential form of government, the real influence on the formation of the Government and its policy belongs not to the Parliament, but to the President of Ukraine. This is evidenced, in particular, by the practice of appointing the Government with the formal support of Parliament or individual ministers in the interim role without parliamentary support at all. This situation cannot but affect the performance of Parliament's supervisory function, which currently is extremely institutionally weak. At the same time, the long-awaited and registered in May 2020 bill on interpellation was first sent for revision, and then withdrawn on September 1, 2020.
3. Recommendations for priority actions in 2020-2021, in particular, for the agenda of Parliament's second session
- To harmonize the Parliamentary Rules with the Constitution of Ukraine. In particular, the selection of candidates for the position of judges of the Constitutional Court of Ukraine, regulation of the status of the coalition, as well as the mechanisms of its formation and numbers estimation, etc;
- To revise the Roadmap for internal reform of the Parliament in order to revise recommendations that have become obsolete or of doubtful relevance in the context of the domestic parliamentary practices;
- To approve the concept of the legislative process "from start to finish", which should be agreed between all subjects of the legislative process and correlate with the ongoing reform of public administration;
- To develop and adopt laws aimed at institutional strengthening of the supervisory function of the Parliament;
- To adopt the Law on Regulatory Acts in order to ensure effective division of the sphere of regulation of laws and secondary laws, as well as to establish uniform rules for drafting laws, their harmonization between the interested entities, the procedure for interaction of subjects of legislative activity, as well as entry the laws into force, and their monitoring and implementation evaluation;
- To develop and approve the Code of MPs’ Ethics, taking into account the international standards of activity of the MPs;
- To adopt the Law " On Peculiarities of Civil Service in the Verkhovna Rada of Ukraine";
- To organize the process of elaborating on comprehensive amendments to the Constitution of Ukraine in the Parliament with the involvement of a wide range of stakeholders in order to enhance the role of Parliament and to resolve existing internal problems arising from the provisions of the Constitution of Ukraine: a) change the rules of voting for the laws by a simple majority in the presence of a certain quorum; b) limit the individual right of legislative initiative of the MPs; c) abolish the imperative mandate.