Pavlo Kysly National Deputy of Ukraine of 12-th Verchovna Rada

The draft law “On the Committees and Commissions of the Verkhovna Rada of Ukraine” was prepared as a legislative initiative and brought to the Verkhovna Rada’s consideration by National Deputy Z. Romovska.

The form of exposition of the draft law is perfect. The articles are well-written and have complete juridical formulations. This draft law has distinctive advantages in comparison with the current law “On the Standing Commissions of the Verkhovna Rada of Ukraine.”

The draft law has certain drawbacks, which should be eliminated in the process of work of preparation for the second and subsequent readings.

1. In the preamble and explanatory note, Z. Romovska presented the matter in such a way as if the Law “On the Committees and Commissions of the Verkhovna Rada” does not exist and never existed. She writes:

• “Considering the urgent necessity of having such a basic law on the committees and commissions of the Verkhovna Rada, and numerous attempts of the legislative bodies of previous convocations to solve this problem, as well as requirements of Article 89 of the Constitution of Ukraine on legal regulation and order of activity of the committees and commissions of the Verkhovna Rada, I ask to consider this draft law on the floor of the Verkhovna Rada as the first priority issue.”
• “But during the consideration of the draft law on committees and commissions at the last session of the 13th Verkhovna Rada of Ukraine it was not passed once again ... as a result of this, it is the third Ukrainian Parliament that is working without a law directly envisaged by the Constitution.”

It is misunderstanding because the Verkhovna Rada of the 13-th convocation adopted the Law “On the Standing Commissions of the Verkhovna Rada of Ukraine” April 4, 1995, which is currently in force.

The 13-th Verkhovna Rada tried to amend the current Law “On the Standing Commissions of the Verkhovna Rada of Ukraine” shortly before the expiration of its authority, but it failed to do that.

Of course, an explanatory note should present general analysis of a draft law and show its conceptual advantages in comparison with the law currently in force.

2. Article 7. List of the Committees of the Verkhovna Rada of Ukraine.

• This Article is very important and principle. Taking into account that a list of committees gave way to a heated argument during discussion on the draft of new Rules of Procedure and was not positively accepted by deputies, an explanatory note should present specific substantiation and analysis of the drawbacks and advantages of the list of committees and their jurisdiction.
• A list of committees cannot be exhaustive. The social and political situation in Ukraine is constantly changing and may require formation of new committees with special jurisdiction. Moreover, Article 5 states that the committees “shall be established for the term of power of the Verkhovna Rada of Ukraine,” so Article 7 must indicate that, if required, a newly elected Verkhovna Rada may also establish committees with the jurisdiction which is not defined by the law and shall be entitled to amend and change current jurisdiction of committees.

International practice does not exclude the possibility of committee list revision. For instance, US Congress reconsiders jurisdiction of committees every two-year period at the beginning of work of the House of Representatives of a new convocation.

3. Article 30. Oversight Authority of Committees.

• “In order to exercise oversight, the committees can hear First Vice Prime Minister.” Instead of “can hear,” it should be indicated that they “shall hear” any time after having informed those who are invited in a time defined (by the law).

4. Article 36. Legal Consequences of Improper Work of Committees

• Exclusion of a national deputy from a committee is not a penalty. If he/she does not work in the committee, it suits him/her. Many national deputies do not attend committees. Therefore, the Article should clear define that absence of a national deputy from the work of the committee during committee week will be resulted in failure to receive his/her regular salary. Perhaps, penalties connected to salaries should be introduced because the work in committees is the internal matter of the VR.

Introduction of penalties and fines is not discrimination against deputies. It is an effective measure for discipline improvement, and it is practiced by many parliaments in various countries.

5. Articles 37, 38, 39, 40, 41 and 42 of Chapter III. Order of Formation of Committees, Their Structure and Staff.

• These Articles can be considered as the most important in the law. It is they that can define the effectiveness of work of committees and the Verkhovna Rada. The analysis of work of parliaments of the world indicates that only those legislative bodies that have the opportunity to pursue their own policy in economic and social sphere are able to work effectively. However, they can have such an opportunity only in the event of their complete structurization, when parliamentary matters are being determined by the “parliamentary majority.” Therefore, the law should raise this issue and show the ways of its solution.
• The effectiveness of work of a parliament is determined by its clear structurization. In this case, structurization in the form of simple division of a parliament into factions does not make any difference. No faction can advance its decision without agreement with other factions. In order to pursue their own coordinated policy, parliamentary factions should consolidate into “parliamentary majority” and opposition with definite duties and rights. Then “parliamentary majority” will gain considerable rights to form leading bodies of the parliament and assume responsibility for implementation of a certain policy.

The following outline of the formation of “parliamentary majority” in the VR of Ukraine may be suggested. Upon election of the Interim Presidium, the largest factions of the VR start forming faction coalition, which would become the majority in the VR. Parliamentary factions hold consultations and negotiations on the main issues of building and development of the State, international relations, economic and social policy. The majority is formed not only on the basis of similar party ideology and goals, but also on realizing of the fact that it is the majority that holds all leading offices in the VR and assumes complete responsibility for parliamentary activities.

• Factions of “parliamentary minority” do not hold any leading offices in the VR. They form an opposition, which has all the rights necessary for the declaration of their opinion on any issue considered by the Parliament; they make respective statements, and propose that the Parliament vote for corresponding resolutions. Their members are included in all the committees and parliamentary commissions, but they do not hold leadership positions and are simply the minority.
• The Articles should unambiguously define the system of “parliamentary majority” formation, its rights, and the rights of “parliamentary minority” – opposition. Only then, will parties in Ukraine play a proper role in the life of the society and the State, and the Verkhovna Rada will be able to pursue its own defined policy and effectively collaborate with the executive power, and perform its oversight functions.
• There is an insuperable constitutional obstacle in the solution of the problem of “parliamentary majority” creation. The Verkhovna Rada does not form the Cabinet of Ministers, and it does not have effective “levers” (key mechanisms) for the oversight of its activity. Therefore, even existence of the “parliamentary majority” does not provide the Parliament with the opportunity to influence actions of the executive power and have impact on the policy of the Government, thus follows, it does not have any reasons to assume responsibility for the decisions it made.

The solution of this problem is possible only by amending the Constitution of Ukraine. Therefore, any draft law should orient the Verkhovna Rada towards the necessity of amending the Constitution of Ukraine if required.

6. In Chapter IV “Forms of Organization of Committee Work,” Article 50 states that “The main forms of committees’ activity shall be their meetings and hearings.”

• Organization of committee meetings is described in Articles 51, 53 through 63, but organization of hearings is described only in Article 52. Since hearings are a very important link in committee work, they require more complete description in articles, namely:

Article A: Hearing Preparation

1. Before conducting a hearing on a draft law, the committee shall hold a preliminary meeting in order to discuss the purpose of the hearing and select officials, representatives of local administrations, institutions, departments, public organizations, and scientists to be invited as witnesses, the committee members to be responsible to analyze mass media materials, and materials provided by governmental institutions and public organizations, as well as define a complete list of questions that require clarification.

2. Before conducting a hearing on the nomination for an official position, the committee shall hold a preliminary meeting in order to discuss and analyze data concerning the official candidate, namely: his/her education and profession, service record, tax return, information on his/her real estate, bank deposits, securities, membership in enterprises’ directing bodies, economic partnerships, entrepreneurial organizations and cooperatives.

3. Before conducting a hearing on oversight of the activities of officials, the committee shall hold a preliminary meeting in order to investigate their incompetent administration, wrongdoing and corruption. During this meeting the committee select committee members to assign them responsibility to analyze information concerning the official, select materials, which is necessary to receive from governmental institutions, define a complete list of persons to be invited to the hearing.

4. Before a hearing, the committee shall:

(1) Publish an announcement of the date, place and purpose of the hearing in Holos Ukrainy and other publications of the VR of Ukraine. The announcement includes appeal to citizens to express their thoughts and suggestions on the matter under consideration, and send them to the committee;

(2) Send a written announcement to officials in no later than three days before the hearing. The announcement should include the purpose, time and place of hearing held, as well as the list of documents they should bring to the meeting;

(3) Select persons to conduct the hearing: either the committee with its full complement, or one of the subcommittees, or some members of the committee, the number of which should be no less than three persons;

(4) Invite to the hearing representatives of the press, radio and television;

(5) Should the need arise, invite to the hearing First Vice Prime Minister, Vice Prime Ministers, ministers, leaders of State committees, departments, trade union organs, and local self-government bodies, representatives of public associations and individual citizens in no later than three days before the hearing;

(6) Prepare all necessary materials, including witness statements to be given to attendees and reporters;

(7) Prepare technical supplies for conducting the hearing: microphones, tape-recorders, video cameras;

(8) Prepare press release.

Article B. Conducting the Hearing

1. The presiding person shall make an opening statement introducing the purpose and all the officials, witnesses, committee members attended to the meeting.

2. The presiding person shall give the floor to the official who will be questioned by committee members.

3. The presiding person shall invite witnesses to read prepared testimonies. Committee members shall ask them questions.

4. The duration of a hearing shall be one day, but in case that some questions have not been cleared up, the committee shall make a decision to continue the hearing.

5. If the purpose of the hearing is obtaining information on a draft law or informing the public more deeply in order to generate required public opinion, adoption of the decisions based on the results of the hearing shall not take place.

6. The committee shall adopt decisions based on the results of the hearing in case that the purpose of the hearing is consideration candidates to be elected, or assigned, or approved by the VR for an official position, or in case that the hearing is conducted in order to exercise oversight of the observance of the Constitution and laws of Ukraine, resolutions of the VR of Ukraine.

Article C. Preparation of Hearing Documents

1. Hearings shall be recorded and shorthanded. The recording shall include:

(1) its number, date, time and place of hearing held;

(2) the name of the Presiding person, lists of committee members attended, officials and witnesses invited;

(3) transcripts of the hearing and materials considered shall be attached;

(4) the presiding person shall sign the record. The decision the committee adopted after the hearing shall be signed by the committee chair and secretary.

2. After the hearing, grounded conclusion shall be developed, which includes:

(1) the list of documents considered during the hearing;

(2) the list of documents the committee required in addition;

3. The conclusion of the committee concerning the official should include specific references to the articles of legislative acts of Ukraine.

4. If the decision on no-confidence to the official and his/her dismissal from the office has been made, the committee should include this decision to the conclusion and develop the draft of corresponding act on condition that the dismissal from the office is exercised by the VR of Ukraine.

5. After the hearing, a summary shall be prepared to be distributed to committee members and the mass media.

6. After transcripts have been prepared, hearing records shall be sent to committee members and witnesses for correction.

7. The file of the hearing shall be made. It shall consist of one copy of reports, testimonies, the announcement on the hearing, press release, copies of all feed-back comments in the press, the record of the hearing, transcripts.

7. Chapter VII. Responsibility for the Infringement of the Law of Ukraine “On the Committees and Commissions of the Verkhovna Rada of Ukraine” declares administrative and criminal responsibility for the infringement of legislation on committees.

• In order that the responsibility could be more than a mere declaration, it is necessary to supplement the law with articles from the Civil Code and the Criminal Code of Ukraine dealing with penalty amount and terms of confinement for the official’s wrongdoing.

According to the US legislation, issuing a subpoena is the only formal way which helps the Congress to compel official servants of presidential administration, ministries and departments, organizations, as well as individual persons to provide the committee with testimonies and documents related to the matter under consideration.

Any person who refuses to obey the subpoena and provide required documents, may be blamed for the contempt of Congress. The committee prepares a corresponding resolution to be voted on by the House of Representatives. The Chair of the House refers the resolution on the contempt of Congress to the Attorney General (who functions in the USA as Procurator General), who undertakes prosecution.

The Senate, upon voting, may also bring a lawsuit before the Federal District Court, which investigates the case following regular procedure. In so doing, the necessity to involve the Minister of Justice, who himself is an official of executive power and presidential appointee, is eliminated.

The person censured for contempt of Congress may be subject to $ 1,000 pecuniary penalty or imprisonment, with the term from one to twelve months. These measures are not taken frequently, but they are taken and keep representatives of the executive power in proper reverential attitude towards the Congress.

March, 1999