Analytical research “Discretionary powers as a corruptogenic factor: domestic and international experience”
The term “discretion” was officially used for the first time in the Concept of Combating Corruption for 1998-2005, approved by the Decree of the President of Ukraine of April 24, 1998. However, the term “discretion (discretionary powers)” became public only in 2007 during the consideration by the Constitutional Court of Ukraine of Presidential Decree № 264/2007 “On Early Termination of Powers of the Verkhovna Rada of Ukraine”. At that time President Viktor Yushchenko issued a decree dissolving the Parliament on grounds not provided for in the Constitution of Ukraine, which provoked a number of discussions about the legitimacy of such a controversial decision. It was at that time that the Ukrainian media began to use the term “discretion” on a large scale, justifying the legitimacy of the President’s actions, even if the Constitution of Ukraine did not provide for such actions.
Since then, the term “discretionary powers” has come to mean permissiveness, which is associated with the broad powers of the competent decision-making bodies as well as with corruption.
This study describes the issues of discretion and discretionary powers. Methodical recommendations for conducting anti-corruption expertise of draft laws, in terms of determining the discretionary powers that exist in Ukraine, have been studied.
We studied the methodical recommendations concerning the definition of discretionary powers of such countries as Lithuania, Uzbekistan, Azerbaijan, Bosnia and Herzegovina, the model law on anti-corruption expertise of the CIS.
Using the analyzed methodologies, both Ukrainian and foreign, all indicators of discretionary powers were singled out. Based on this, the indicators of discretion were expanded. The conclusion was formed on the possibility of adding to the current methodology of anti-corruption expertise of draft laws (approved by the Ministry of Justice of Ukraine) the new features of discretion.
In particular, in the study we drew attention to the guidelines for conducting anti-corruption expertise of draft laws and regulations of post-Soviet states. As the level of corruption in these countries was more or less the same as in Ukraine, we believe that the guidelines of these countries may be more relevant to Ukrainian situation.