DRI Legal News | Issue 3, by Anton Lovin (DRI Senior Legal Analyst), Ruslana Vovk ( DRI Regional Manager)
Even though the scope of its power is limited, the office of Ukraine’s Ombudsman is important and prestigious. Unfortunately, the incumbent Ombudsman is only serving in a caretaker role, as her legal term of office ended in April of this year. Due to political wrangling, Parliament has not selected her successor, with controversy focusing on whether the Ombudsman should be elected by open or secret vote. Two competing legal texts indicate correspondingly different procedures.
What Is the Ombudsman’s Role?
The Constitution sets out the general role of the Commissioner for Human Rights (popularly known as the Ombudsman):
- Everyone has the right to petition the Ombudsman for the protection of rights.
- The Ombudsman supervises the observance of constitutional rights and freedoms in the name of the Parliament, giving him/her direct recourse to the Constitutional Court of Ukraine.
- Parliament appoints and dismisses the Ombudsman.
More details on the Ombudsman and, in particular, his or her appointment and dismissal can be found in the Law on Ombudsman of 1997 and the Law on Rules and Procedures of Ukraine’s Verkhovana Rada of 2010. The Ombudsman has a set five-year mandate. The candidate is elected for this term through a simple majority, after having passed a screening process in accordance with the anti-corruption laws. Candidates must first be nominated by the Speaker of the Parliament or by a minimum of 113 Members of Parliament.
The term of the current Ombudsman expired in April 2017, and an appointment procedure was initiated. Yet, the Parliament failed to vote for any of the three nominees in the required timeframe, arguing that the mandatory anti-corruption clearance of the candidates was incomplete.
Further complicating the matter, on 13 July, the selection procedure was itself altered by the adoption of the long-awaited Law on the Constitutional Court of Ukraine. Required to move forward on Ukraine’s judiciary reform, the Law on the Constitutional Court was not expected to change the procedure for the election of the Ombudsman. The Law came into force on 3 August 2017 and amended Article 208 of the Parliament’s Rules and Procedures. According to its new wording, deputies elect the Ombudsman through a simple majority in an open vote. At the same time, the relevant provisions of the Law on Ombudsman of 1997 were not amended. According to these provisions, the vote for an Ombudsman requires a secret vote (Article 5). The Verkhovna Rada has been divided over which law to apply.
There are only a few vocal supports of the open vote. They include the parliamentary faction of the People’s Front, which called on the President “to resist the pressure and provocations by political actors.” They argue that the open vote “eliminates all possible corrupt interests which may be provoked by secret voting, and empowers electors to analyse the activities of their member and of the Parliament as a whole.”
Most human rights activists argue that the true agenda of the proponents of the open vote is to impose party discipline and secure factional control over the votes of their members. This, they argue, would facilitate under-the-counter political dealings and political package deals, arguably perpetuating the politicisation of the Ukrainian Ombudsman, instead of making it meritorious, professional and (genuinely) neutral.
There is a risk that open voting would politicise the process unnecessarily. However, there are also strong arguments in favour of open voting, such as increasing the downward accountability of MPs to their electorate and the public.
Furthermore, according to the European Network of National Human Rights Institutions, the risk of politicisation already begins with the candidate nomination procedure, which is vulnerable to politicisation. It is, thus, not in line with the UN Paris Principles, which serve as international guidelines for the work of National Human Rights Institutions and require clear, transparent and participatory processes of selection and appointment. In Ukraine, the Ombudsman is nominated by the Speaker of the Parliament or a minimum of 113 deputies. There is no provision for – or practice of – conducting broad consultations, maximising the number of potential candidates or making the criteria for selection publicly available. As result, the selection and appointment of the Ombudsman can easily become a political deal and, thus, undermine the independence of the Ombudsman and public confidence in the office.
The situation also raises concerns regarding Ukrainian law-making, its quality and its fairness. The not-so-rare practice of peppering bills on specific subjects with unrelated amendments may be tactically helpful in overcoming political roadblocks, but it is strategically deficient and needs to be properly addressed. Serious as it is, there is no clear-cut technical fix for this problem, and the only hope lies in the gradual improvement of Ukraine’s political culture and democratic consciousness.
It seems that the conflict between the two laws cannot be easily interpreted away with the application of general principles of law. One could argue, for instance, that the open voting procedure introduced to the Rules and Procedures in 2017 should prevail over the secret vote established in the 1997 Ombudsman law according to the principle of lex posterior derogat priori (the later law repeals the earlier law). Yet, it is doubtful whether both of the laws can be considered general laws. The Law on Ombudsman governs the specific matters related to the Ombudsman and could override the Rules and Procedures when following the principle of lex specialis derogat generali (if two laws govern the same factual situation, the law governing a specific subject matter overrides a law governing only general matters). Yet, the Rules of Procedures governing the voting procedures of the Parliament on divers matters could be considered as special law too. There is no judgement of Ukraine’s Constitutional Court that could contribute to finding a solution.
Furthermore, there were unsuccessful attempts to challenge the validity of the amendments to the Rules and Procedures because of the flawed procedure of their adoption. While debating the relevant clause of the Law on the Constitutional Court on 13 July, there was an oral suggestion to change the provision from open to secret vote. The suggestion was supported by the required simple majority. However, before the vote for the proposal, it was announced that the subject of the voting would be addendum no. 536 that regulated the procedure of Ombudsman’s requests towards the Constitutional Court, whereas the members of Parliament thought bona fide they voted for secret procedure of Ombudsman’s appointment. The mistake, which can be verified by the available protocol of the parliamentarian hearings, was not corrected, and the President signed the law stating providing for an open vote for the appointment and dismissal of the Ombudsman.
To overcome the impasse, on 1 August, Ukraine’s President Petro Poroshenko promised to sponsor a separate bill to close the appointment issue. On 21 August, a new draft was registered in the Parliament and it was submitted by three members from the Petro Poroshenko Block (pro-presidential faction) and one deputy from the parliamentary group Vidrodzhennia. The draft suggests amending Article 208 of the Rules and Procedures of the parliament, namely to establish secret ballot voting as a legal procedure for appointing the Ombudsman. On 26 October, the Main Scientific and Expert Department (an advisory body of the Parliament for legislative expertise) issued its opinion on the draft, agreeing “that the procedure of selecting the mentioned official by secret vote with the use of voting papers is a guarantee for the free exercise of choice by members of the parliament.” In addition, the Department commented on the whole situation, criticising the “excessive rashness in adopting legislative amendments” and calling for the need for more consistent law-making.
The continuous inability to appoint a new Ombudsman exposes several flaws in the political and legislative process:
- the questionable practice of peppering bills with articles that are unrelated to its subject matter;
- the messy voting process in which deputies are unclear about the voted text; and
- the slowing down of a process that should be routine – the appointment of the head of an independent institution – over complex debates that involve questions of fundamental importance beyond these cases, such as the merits of open or closed votes.
 See Art. 55, Sec. 3; Art. 85, Sec. 1, Item 17; and Art. 150 of the Constitution of Ukraine. Available in Ukrainian <http://zakon5.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80/print1452771951165257>
 See the Law on Ombudsman of 23 December 1997, No. 776/97-ВР. Available in Ukrainian <http://zakon3.rada.gov.ua/laws/show/776/97-вр> See the Law on the Rules and Procedures of the Verkhovna Rada of 10 February 2010, No. 1861-VI. Available in Ukrainian <http://zakon3.rada.gov.ua/laws/show/1861-17>
 See the script of hearing No. 49 of the Verkhovna Rada of the 7th Convocation, 6 June 2017. Available in Ukrainian <http://iportal.rada.gov.ua/meeting/stenogr/show/6530.html>
 See the Law on the Constitutional Court of Ukraine of 13 July 2017, No. 2136-VIII. Available in Ukrainian <http://zakon3.rada.gov.ua/laws/show/2136-19>
 See Democracy Reporting International, “The Paralysed Guardian: Towards an Independent Constitutional Court of Ukraine,” 28 June 2017. <http://democracy-reporting.org/the-paralysed-guardian-towards-an-independent-constitutional-court-of-ukraine-briefing-paper/>
 See the position of “Narodnyy Front” (People’s Front). Available in Ukrainian <http://nfront.org.ua/news/details/narodnij-front-zaklikaye-prezidenta-ne-piddavatisya-na-tisk-i-ne-revizuvati-zakon-pro-konstitucijnij-sud>
 See Principles Relating to the Status of National Institutions (The Paris Principles), adopted by General Assembly Resolution 48/134 of 20 December 1993. <https://www.un.org/ruleoflaw/files/PRINCI~5.PDF>
 See European Network of National Human Rights Institutions, “Letter to the Chair of the Parliament of Ukraine,” 8 May 2017 <http://ennhri.org/IMG/pdf/ennhri_ltr_chair_of_parliament_ukraine.pdf>; and European Network of National Human Rights Institutions, “Letter to the Minister of Foreign Affairs of Ukraine,” 8 May 2017. <http://ennhri.org/IMG/pdf/ennhri_ltr_mfa_ukraine.pdf>
 See the script of Hearings No. 63 of the Verkhovna Rada of the 7th Convocation, 13 July 2017. Available in Ukrainian <http://iportal.rada.gov.ua/meeting/stenogr/show/6564.html> Also see the positions of the human rights activists in the article of the Centre of the Information and Human Rights. Available in Ukrainian <https://humanrights.org.ua/material/pristrasti_za_ombudsmanom_narodnij_front_prosit_poroshenka_ne_sluhati_pravozahisnikiv>
 See the statement of Ukraine’s president on 1 August 2017. Available in Ukrainian <http://www.president.gov.ua/news/prezident-vnese-na-rozglyad-parlamentu-propoziciyi-shodo-zmi-42642>
 See the draft law on amendments to the Rules and Procedures of the Parliament, No 7018-1 of 21 August 2017. Available in Ukrainian <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=62415>
Photo courtesy: Bill Smith/Flickr