Simone Lawson
Ukraine's Verkhovna Rada has been one of the least-trusted institutions, with some lawmakers seeking protection from prosecution while pursuing their interests. In 2019, a majority of MPs voted to remove their constitutional guarantee of parliamentary immunity, with the support of President Volodymyr Zelensky's Servant of the People Party. However, MPs' immunity remains intact as the immunity guaranteed in other legislation was not touched. This has led to debates about the effectiveness of such a move in combating impunity and corruption, with critics arguing that it may endanger parliament's function and lawmakers' independence.
| Characteristics | Values |
|---|---|
| Absolute immunity removal from the Constitution | Yes, as of 1 January 2020 |
| Who proposed the removal of absolute immunity? | The Servant of the People Party, associated with President Volodymyr Zelensky |
| Who is protected by immunity in Ukraine? | The President of Ukraine, National Deputies of Ukraine, and Judges of the Constitutional Court of Ukraine |
| What is the case against immunity removal? | It may weaken the parliament, expose lawmakers to undue pressure from the executive and judiciary, and not fix corruption |
| What is the case for immunity removal? | It is a popular notion, the immunity system has been abused by lawmakers, and it can help fight corruption |
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What You'll Learn
- Ukraine's MPs voted to remove their constitutional guarantee of immunity
- The President of Ukraine also enjoys the right of immunity
- The independence and immunity of judges are guaranteed by the Constitution
- The removal of immunity may not fix corruption
- The Venice Commission recommended establishing other safeguards to prevent interference
Ukraine's MPs voted to remove their constitutional guarantee of immunity
Ukraine's MPs have voted to remove their constitutional guarantee of immunity, but this does not mean that MPs will lose their immunity. While the guarantee of immunity has been removed from the Constitution, it has not been replaced by an explicit ban on immunity. The removal of immunity is a popular notion in Ukraine, as parliamentary immunity has been used by MPs to shield themselves from criminal prosecution. However, there are downsides to abolishing immunity, including the risk that new lawmakers could end up at the mercy of the executive.
On 3 September 2019, a constitutional majority of MPs in Ukraine voted to remove their constitutional guarantee of parliamentary immunity. The bill adopted on that day removed two parts of Article 80 of the Constitution, which pertained to the guarantee of immunity and the protection from criminal liability without the consent of the Verkhovna Rada. While successive governments have spoken of removing this immunity, this was the first time it came to a vote.
The vote was initiated by the Servant of the People Party, which is associated with President Volodymyr Zelensky. The party enjoys an absolute majority in the Verkhovna Rada, the first party ever to do so. However, for any constitutional amendments, a two-thirds majority is needed. While the Opposition Party – For Life ignored the vote, most MPs in all other parties voted for the bill. Once signed by President Zelensky, the guarantee of immunity in Ukraine's Constitution will be removed as of 1 January 2020.
Despite the vote, the immunity of MPs remains secure as the immunity guaranteed in other legislation was not touched. This may have been an oversight, as Ukraine's new legislators have been extremely active with new proposed legislation. There are concerns that the removal of immunity could weaken the Verkhovna Rada vis-à-vis an already strong president. In Ukraine's semi-presidential system, the government is accountable to parliament, and if immunity is lifted, there is a risk that a power-conscious and ruthless individual could take over.
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The President of Ukraine also enjoys the right of immunity
Ukraine's Constitution guarantees the President immunity from prosecution during their term of authority. The Constitution also protects the title of President of Ukraine, which is reserved for the President for life unless they are impeached.
The Ukrainian President's immunity is distinct from the parliamentary immunity enjoyed by National Deputies (Members of Parliament). Parliamentary immunity in Ukraine has been a contentious issue, with successive governments proposing its removal. In September 2019, a constitutional majority of MPs voted to remove the constitutional guarantee of parliamentary immunity. However, their immunity remained intact due to the existence of immunity guarantees in other legislation.
The removal of parliamentary immunity is a divisive issue in Ukraine. Supporters argue that it would curb impunity and corruption among lawmakers. Critics, however, warn that abolishing immunity without addressing the underlying issues of judicial corruption and executive overreach could endanger the independence of lawmakers and the functioning of parliament. They suggest that immunity rules should be used wisely to balance the need for accountability and the protection of lawmakers' independence.
While the Ukrainian Constitution guarantees the President's immunity, it is important to note that this immunity is not absolute. The Constitution outlines procedures for impeachment, which can result in the removal of the President from office and the loss of their title. Thus, while the President enjoys immunity during their term of authority, they can be held accountable through the impeachment process outlined in the Constitution.
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The independence and immunity of judges are guaranteed by the Constitution
Ukraine's Constitution and laws guarantee the independence and immunity of its judges. This guarantee of judicial independence and immunity is an essential feature of Ukraine's constitutional framework, providing safeguards for the proper administration of justice in the country.
The Constitutional Court of Ukraine plays a pivotal role in upholding these principles. According to Article 126 of the Constitution, judges of this court are subject to specific guarantees of independence and immunity, as well as provisions governing their dismissal from office. This court is responsible for interpreting the Constitution and ensuring that any amendments, including those related to immunity, comply with Articles 157 and 158 of the Constitution.
The issue of parliamentary immunity has been a contentious topic in Ukraine. While there have been moves to abolish it, with a constitutional majority of MPs voting to remove their constitutional guarantee of immunity, the immunity guaranteed in other legislation remains untouched. This has led to a situation where immunity is 'cancelled' yet still intact. The Venice Commission, an advisory body of the Council of Europe, has weighed in on the issue, noting that the decision to restrict parliamentary immunity should consider the specific context of each country, including the rule of law and the state of its democratic institutions.
In Ukraine, the Verkhovna Rada, or the parliament, has been viewed with distrust by the public. The link between oligarchic groups and parliamentary mandates, coupled with a weak rule of law and a corrupt judiciary, has fueled the push to abolish immunity. However, some argue that abolishing immunity altogether could weaken the legislature and endanger lawmakers' independence in the long term. It may also expose lawmakers to undue pressure and politically motivated charges, especially in a fragile democracy like Ukraine's.
In conclusion, while Ukraine's Constitution guarantees the independence and immunity of judges, the debate around parliamentary immunity highlights the complexities of constitutional reform. The balance between accountability and protection from undue influence remains a challenge, and any reforms must carefully consider the unique circumstances of the country to ensure the preservation of democratic principles and the proper functioning of Ukraine's political institutions.
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The removal of immunity may not fix corruption
Ukraine's Constitution guarantees parliamentary immunity to its National Deputies. They are not legally liable for the results of voting or for statements made in Parliament and its bodies, except in the case of liability for insult or defamation. The National Deputies of Ukraine shall not be held criminally liable, detained, or arrested without the consent of the Verkhovna Rada of Ukraine.
In Ukraine, abolishing parliamentary immunity is a popular notion, especially since the Verkhovna Rada is one of the least-trusted institutions. Some lawmakers find a seat in the Rada attractive because it offers protection from prosecution while pursuing their individual interests. However, there are downsides to abolishing immunity. Ukraine's new lawmakers could end up at the mercy of the executive instead of being an effective counterweight. In Ukraine’s semi-presidential system, the government is accountable to parliament and the president. If immunity were lifted, things may go well as long as responsible people were in the right positions. However, if a power-conscious and ruthless individual took over, there would be trouble.
Instead of abolishing immunity for lawmakers, it is recommended to use the immunity rules wisely to eliminate the effects of the de facto impunity of individual lawmakers without endangering parliament’s function and lawmakers’ independence in the long term. Immunity is meant to safeguard the body of parliament and the activities it carries out. In other words, immunity must protect the freedom of speech of those elected, and not lead to impunity in other matters unrelated to a parliamentarian’s mandate.
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The Venice Commission recommended establishing other safeguards to prevent interference
Ukraine has seen a push to abolish parliamentary immunity, with the public in favour of the move. This is because parliamentary immunity has been used by MPs to protect themselves from criminal prosecution. In 2015, a Draft Law to revoke immunity was submitted to the Constitutional Court of Ukraine, which found the amendments to be in line with the Ukrainian constitution. However, the Council of Europe's Venice Commission issued a different opinion, stating that the "current state of the rule of law in Ukraine does not yet warrant a complete removal of inviolability of MPs".
The Venice Commission's opinion is worth exploring further. The Commission raised concerns about the lack of an impartial judiciary or a well-functioning political system in Ukraine. They argued that without these safeguards, MPs could be vulnerable to undue harassment and political pressure from the executive and judiciary branches of government. The Commission also acknowledged the potential for immunity to hinder anti-corruption efforts but concluded that a complete removal of immunity could negatively impact the Ukrainian parliament's autonomy and functionality, given the country's fragile democracy and widespread judicial corruption.
The Venice Commission's key recommendation was to establish alternative safeguards to protect the Ukrainian parliament's independence and ability to function effectively while also facilitating the fight against corruption. They emphasised that the decision to restrict parliamentary immunity should be based on a country-specific analysis, taking into account the country's unique circumstances and the state of the rule of law.
The situation in Ukraine highlights the complexities of parliamentary immunity and the potential risks associated with its removal, especially in a country with a fragile democracy and issues of corruption. While the public push to abolish immunity is understandable, the Venice Commission's perspective underscores the importance of establishing robust safeguards to maintain a balance between accountability and the proper functioning of the legislative body.
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Frequently asked questions
Ukraine has removed the guarantee of immunity from its constitution, but this does not amount to a removal of absolute immunity. The immunity guaranteed in other legislation was not touched, which means that MPs still retain their immunity.
The removal of immunity was a popular notion in Ukraine as parliamentary immunity has been regularly used by MPs to shield themselves from criminal prosecution. The Verkhovna Rada, Ukraine's parliament, is one of the country's least-trusted institutions.
The Council of Europe's Venice Commission has warned that, without an impartial judiciary or a well-functioning political system, MPs may be subject to undue harassment and political pressure by the executive and the judiciary. In Ukraine's semi-presidential system, the removal of immunity could weaken the Rada vis-à-vis an already strong president.
