How to guarantee the independence of the National Council of Ukraine in charge of TV and radio broadcasting in the new version of the Law of Ukraine “On the National Council of Ukraine in charge of TV and radio broadcasting”?

One of the basic demands to the organs, which realize the regulation and licensing in the sphere of TV and radio broadcasting, is to guarantee the independence of these media. Such demands are contained both in the general recommendations of the Council of Europe and in the concrete documents concerning Ukraine. In particular, the experts of the Council of Europe, who analyzed the Ukrainian legislation on mass media, more than once pointed out that the National Council of Ukraine in charge of TV and radio broadcasting (the National Council, in what follows) was extremely politicized and had no real independence.

One of the opportunities to guarantee the independence of the National Council is the creation of preconditions for such independence on the legislative level. The Supreme Rada of Ukraine have already registered the new version of the Law of Ukraine “On the National Council of Ukraine in charge of TV and radio broadcasting”, which is now considered by the Committee in charge of the freedom of speech and information. The principles that will be discussed below should be realized in this law.

The provisions on the appointment and dismissal of the members, on the election and authorities of the Head, on the place in the system of the power organs, on the accountability and control are the provisions that can influence the National Council directly or indirectly. Certainly, the most important of these provisions is the procedure of the appointment and dismissal of the members of the National Council. The operating system, according to which a half of the members is appointed personally by the President, and another one – by the Supreme Rada, may not be regarded as correct, since if the Supreme Rada would appoint at least one person loyal to the President, then the latter would master the majority of votes. In the most of countries the right to appoint the members of such state organs belongs only to the Parliament as a collective organ, and sometimes this right is shared among three organs in order to exclude the control by any of them. Fortunately or unfortunately, the procedure of the appointment of the members of the National Council is stipulated by the Ukrainian Constitution, so the law may not introduce any fundamentally new norms. Yet, the procedure of the dismissal of the members of the National Council must be changed cardinally.

If to read attentively item 20 of Article 85 and item 13 of Article 106 of the Constitution of Ukraine, one would notice that these articles, which stipulate the right of the President and the Supreme Rada to appoint a half of the National Council, say nothing about their right to dismiss the members appointed by them. If to analyze other provisions, which envisage the competences of the Supreme Rada and the President, it becomes clear that these norms were formulated in such manner on purpose, in order to guarantee the independence of the National Council. Most of the provisions describing the staff authorities of the President and the Supreme Rada read that the Supreme Rada have the right “to appoint and dismiss” the state officials (for example, the members of the Council of the National Bank, the General Prosecutor, the members of the Central Voting commission), but the norms concerning the members of the National Council and Constitutional Court envisage only the right to appoint, not to dismiss.

Moreover, the last item of Article 85 reads that the Supreme Rada has other authorities stipulated by the Constitution. This means that if some authorities are not envisaged by the Constitution, they may not be introduced on the level of laws. Thus, the law may not envisage the authorities of the Supreme Rada and President to dismiss the members of the National Council, since that contradicts the Constitution of Ukraine. Besides, one may draw one more conclusion: the operating law of Ukraine “On the National Council of Ukraine in charge of TV and radio broadcasting” disagrees with the Constitution of Ukraine in the part, which envisages the utterance of distrust and dismissal of the members of the National Council. It is necessary to liquidate these disagreements during the preparation of the new law draft.

The impossibility, according to the Constitution, to dismiss the members of the National Council entails the introduction of some additional changes into the laws. In particular, this concerns the accountability of the National Council to the Supreme Rada and President. If the Supreme Rada and President have no right to take decisions on the basis of the results of the accounting, then the serious doubts appear as to the advisability of such accounting. In my opinion, the principle of accountability must be cancelled at all. The demand of the law about the preparation and publication of the report by the National Council is normal, but it must not be realized in the form of listening to the report at the Supreme Rada sitting. I believe that the report must be published and its copies must be passed to the Supreme Rada and President.

From the very moment of the appointment of a member of the National Council there must not be any difference whether the Supreme Rada or President appointed this member. The only case, where this difference may be defensible, is the procedure of forming the administration of the National Council, when the Head and the First Deputy may not be appointed by the same organ or person.

From the viewpoint of independence, the advisability of the demand to agree the normative acts of the National Council with the profile committee of the Supreme Rada is disputable. This demand is stated in Article 5 of the Law of Ukraine “On TV and radio broadcasting”. This article was regulating the activities of the National Council before the adoption of the Constitution and the separate law on the National Council, but it is still valid. I think that two approaches to the legislative activities of the National Council are possible: either the Supreme Rada distrusts the National Council and reckons that the latter cannot adopt the sublegal acts on its own, and, as a consequence, maximally regulates all relations by legal norms; or the Supreme Rada entrusts some questions to the National Council and does not demand the agreement with the profile committee. The status and legal essence of such agreement is surprising from the viewpoint of the theory of law: the National Council is a structural sub-unit of the Supreme Rada, so its independent legislative authorities look rather strange. The question on the registration of the documents in the Ministry of Justice must be solved separately. Since the National Council is not an organ of executive power, but has a special status, then it should be illogical to demand the registration of its acts.

Is it expedient to use the rotation principle? First of all, it should be noted that frequently the term “rotation” is used incorrectly: it is interpreted as a synonym of the terms “dismissal” or “utterance of distrust”. Rotation is a system, when the members of an organ are replaced not simultaneously, but gradually. This system guarantees a certain “hereditivity” of the work of the organ, since new members join to old ones and obtain the necessary experience from them. At that the members of the organ occupy their posts for the entire term. The term may be shorter only in the very first composition, because some of the members must be replaced after a half of the term in order to start the system. The rotation system is imperfectly described in the operating version of the law, and, it seems to me, it was never applied in practice. The members of the National Council were appointed at different time, so the term of their authorities did not finish simultaneously. Thus, the rotation system functions de facto and must not be additionally stipulated by law.

The grounds for terminating the authorities. The impossibility to dismiss the members of the National Council by the organs, which appointed them, does not mean their absolute irresponsibility and impunity. The law must define precisely which circumstances must result in the loss of the authorities of a member of the National Council; these circumstances must include, among all, the commitment of a crime. The grounds for the dismissal must be objective, and their application must be described in details. For example, if a member of the National Council has the right to submit his resignation or to write the appeal about his dismissal, then it should be determined, to whom the application must be handed: either to the Head of the National Council or to the entire composition of the Council. The guarantees of independence of the judges of the Constitutional Court are stipulated rather well in laws. This experience (of course, within reasonable limits) might be used during the development of the law on the National Council.

It should be also advisable to consider the possibility of increasing the term of authorities of the members of the National Council. There are at least two arguments in favor of this idea. Firstly, according to the operating system, the President of Ukraine may appoint the members of the National Council twice during one term of his work, since the term of the authorities of the President is five years, and the term of the members of the National Council is four years. If the President has the right to appoint a person for the second time, then this person may be more loyal to him. So, it should be advisable to increase the term of the authorities of the members of the National Council to five years.

Secondly, the system, in the accordance with which a member of the National Council can be appointed to his post for the second time, also does not promote the independence. For example, judges of the Constitutional Court are appointed to their posts for 9 years and may not be appointed again. If to liquidate the right for the second appointment, then it should be logical to increase the term of the authorities. Nine years is a great term, but even the term of five or six years without the right to be appointed for the second time should be also sufficient.

The problem of the authorities of the Head of the National Council is also very important. The National Council is a collective organ, so the authorities of the Head must be minimal. The majority of the questions should be solved collectively, and the role of the Head should lie in presiding at sittings, signing documents and external representation. One of the effective methods of diminishing the role of the Head is the decrease of the term of occupying this post to two years without the right to be elected again (at that the person continues to be a member of the National Council until the end of the term).

Of course, I may not affirm that the introduction of the suggested changes will be sufficient for guaranteeing the independence of the members of the National Council of Ukraine in charge of TV and radio broadcasting. However, I believe that these changes are necessary for the achievement of this aim.

Taras Shevchenko, a lawyer, an expert in the rights of mass media
03 June 2003, http://imi.org.ua/