The Almighty National Security and Defense Council that Dared to Sanction Medvedchuk

In early 2021, President Volodymyr Zelenskyy took significant steps in the eyes of patriotic citizens - first, three pro-Russian TV channels from the so-called "Medvedchuk pool" were shut down, and shortly afterward sanctions were imposed on Vladimir Putin's friend himself, as well as his wife (who is the nominal owner of numerous businesses in Ukraine and Russia - ed.).

Zelenskyy did not do it personally, but through the National Security and Defense Council. So what is this mysterious National Security and Defense Council and why has it become the main political newsmaker in 2021?

What is the NSDC about?

According to the Constitution, the National Security and Defense Council is the coordinating body for national security and defense under the president. The word "coordination" means that first of all such a body regulates the activities of other executive bodies in a particular area. In this case, it concerns national security.

A common mistake is to consider the secretary of the National Security and Defense Council its head. In fact, the president is the head of the NSDC, which is quite logical, as he is the Supreme Commander-in-Chief.

President of Ukraine Volodymyr Zelenskyy during a meeting of the National Security and Defense Council. Photo: Press Service of the President of Ukraine

The members of the council include the Prime Minister, the Minister of Defense, the head of the Security Service of Ukraine, the Minister of Internal Affairs and the Minister of Foreign Affairs. But it is the president who forms the National Security and Defense Council, and he can include "heads of other central executive bodies" and "other persons" - that is, anyone he wants.

The secretary of the National Security and Defense Council deals with organizational issues, prepares draft presidential decrees on the implementation of decisions, and also monitors how the authorities implement the decisions of the NSDC.

The law on the National Security and Defense Council has many general provisions on its competence, such as "develops and considers issues related to national security and defense" or "decides on the definition of strategic national interests of Ukraine."

Among other things, the NSDC monitors and coordinates other authorities, prepares draft presidential decrees and other regulations on national security. The National Security and Defense Council can also make decisions on responding to potential and real threats, resolving crisis situations, and imposing a state of emergency or martial law.

The only case of martial law in the history of independent Ukraine occurred not so long ago - in November-December 2018 under President Petro Poroshenko.

In general, since the Russian-Ukrainian war broke out, the topic of national security has become more relevant than ever and, accordingly, the role of the National Security and Defense Council is now much more important than before. So how was it previously?

President of Ukraine Viktor Yushchenko (second from left), Prime Minister of Ukraine Viktor Yanukovych (right) and acting secretary of the National Security and Defense Council Volodymyr Horbulin (second from right) during a meeting at the Presidential Secretariat in Kyiv on September 15, 2006. Photo: UNIAN / Mykola Lazarenko

Kuchma, Yushchenko, Yanukovych, Poroshenko

Professor of Political Science of the Kyiv-Mohyla Academy, Doctor of Historical Sciences Oleksiy Haran helps us to look back at modern history. He recalls that during Leonid Kuchma's first presidential term, the National Security and Defense Council was quite influential.

"During Kuchma's early [presidency], Volodymyr Horbulin was the secretary of the National Security and Defense Council, and this body played a very important role. At the time, he was a kind of counterweight to the Presidential Administration. Among other things, the National Security and Defense Council developed and adopted decisions on European and Euro-Atlantic integration," the political scientist says.

Haran calls Horbulin an "intellectual engine" in Kuchma's team, who was responsible for defense and foreign policy.

"It was a positive role back then, but later it started to diminish. This was Kuchma's second term, when the country was conditionally moving towards authoritarianism, that is, the president’s chief of staff - then Viktor Medvedchuk - clearly had the stranglehold," sums up Haran.

In general, under Yushchenko and Yanukovych, the small influence of the National Security and Defense Council persisted. Sometimes even being appointed there was considered an "honorary exile", according to Haran. However, political motivation of appointments can also be uncovered, for example, in the case of Poroshenko, who assumed the role of secretary of the NSDC in 2005.

"Yushchenko was supposed to fulfill his obligations to [Yulia] Tymoshenko and appoint her prime minister, but he was obviously trying to balance her role. Yushchenko appointed Poroshenko secretary of the National Security and Defense Council so that he and Tymoshenko could [neutralize] each other,"  says the political scientist.

However, neither lasted long. Subsequently, the secretaries of the National Security and Defense Council were often rotated - up until Rayisa Bohatyriova. The former Party of Regions rep had spent over four years in the position (December 2007 - February 2012). Only Oleksandr Turchynov managed to stay longer. Bohatyriova was appointed by Yushchenko.

Volodymyr Lytvyn, Chairman of The Verkhovna Rada of Ukraine, and Rayisa Bohatyriova, Secretary of the National Security and Defense Council, speak before the session of the National Security and Defense Council of Ukraine, Kyiv, Ukraine, November 17, 2010. Photo: UNIAN / Mykhailo Markiv

Haran explains that the then-president tried to build a broad coalition in opposition to Tymoshenko, and Bohatyriova's appointment was seen "as a kind of connection with Rinat Akhmetov's group in the Party of Regions" (as opposed to Viktor Yanukovych's group).

In the end, the Party of Regions expelled Bohatyriova from its ranks for such "betrayal." After becoming president, Yanukovych dismissed her from the post of Secretary of the National Security and Defense Council and appointed her head of the Ministry of Health. Then Andriy Klyuyev became the secretary of the NSDC. And this was also an attempt to balance: on the one hand - Klyuyev, on the other - the head of the Presidential Administration, Serhiy Lyovochkin.

Summing up this period, the political scientist notes that up until Poroshenko's presidency the National Security and Defense Council "was pushed into the background."

"The role of the National Security and Defense Council grows when presidents are interested in it. Its function of a brain trust was revived under Poroshenko," Haran explains.

This tendency continued under Zelenskyy as well, because there is no one in his team to deal with national security, he adds.

"Currently, I do not see what other structure can perform this role of a brain trust, because there is a lot of very random people (in power - ed.) , many people are engaged in PR, executive office," says the political scientist.

Therefore, Haran disagrees that it’s just the war that brought this about. He points to the different approaches of presidents.

"The role of the National Security and Defense Council is not established, a lot depends on the political situation, on who is in power and how they see the role of this structure," he concludes.

Secretary of the National Security and Defense Council Oleksandr Turchynov, President of Ukraine Petro Poroshenko, Prime Minister of Ukraine Volodymyr Groysman (from left to right) during a meeting of the National Security and Defense Council (NSDC) in Kyiv, capital of Ukraine, December 26, 2018. Photo: UNIAN / Vladyslav Musienko

New capabilities

Whatever people say, but with the beginning of the war, the body has become more active. However, it cannot be said that Poroshenko and Zelenskyy simply use the tools that have always been available to the National Security and Defense Council in a different way, because there have been important changes.

In 2014, the parliament amended the law on the National Security and Defense Council, which gave the president the opportunity to appoint "other persons" to the Council, as was indicated above. There is also a rule that the decisions of the National Security and Defense Council, enacted by presidential decrees, "are binding on the executive branch."

But the most high-profile decisions of the National Security and Defense Council are related to the emergence of a sanctions mechanism. The law on sanctions, in force since August 2014, has significantly expanded the capabilities of the National Security and Defense Council. According to Poroshenko, his most notorious use was the blocking of Russian social networks VKontakte and Odnoklassniki and a number of other Russian sites in Ukraine.

This law even allows restrictive measures against its citizens, but only if they "carry out terrorist activities." Due to this nuance, Taras Kozak and Viktor Medvedchuk, MPs from pro-Russian Opposition Platform - For Life, as well as their partners, came under sanctions.

If in the case of sectoral sanctions or sanctions against another state, the decision of the National Security and Defense Council has yet to be approved by parliament, for personal sanctions against individuals and legal entities, the decision of the NSDC is enforced by presidential decree. That is, the decision is made by a body headed by the president himself.

The possibility of imposing sanctions on its citizens is a debatable issue. Opponents say neither Medvedchuk and Kozak nor their wives have been convicted. Therefore, their rights cannot be restricted without a court sentence. Instead, supporters of the government's decision stress that the National Security and Defense Council does not find anyone guilty of a crime, but eliminates threats to national security from specific people.

In general, due to the latest high-profile decisions, there are fears of increasing the president's influence through the National Security and Defense Council or even usurpation of power - if not by this president, then perhaps by one of the future ones.

Secretary of the National Security and Defense Council of Ukraine Oleksiy Danilov during a briefing following the meeting of the National Security and Defense Council in Kyiv, February 19, 2021. Photo: UNIAN

An impact that can be disturbing

Of course, the National Security and Defense Council does not consist only of the president; decisions are made by at least two thirds of its members. But it is the president who appoints officials to the National Security and Defense Council in the first place.

In parallel with the lethal force of sanctions against Medvedchuk and his retinue, there is a tendency to give the National Security and Defense Council leverage in other areas. For instance, the NSDC will delegate three members (out of nine) to the tender commission, which will elect the director of the Bureau of Economic Security. And the bill on the National Anti-Corruption Bureau provides the same for the commission that will elect its director.

Apparently, this is a way to circumvent the position of the Constitutional Court, which previously declared unconstitutional the president's powers to influence NABU, because, they say, they are not spelled out in the Basic Law.

In regards to sanctions, there was another unprecedented decision. In addition to sanctioning Medvedchuk, the National Security and Defense Council instructed the Cabinet of Ministers to take measures to return the Samara-West oil pipeline to state ownership. That is, it is not only a matter of "neutralizing" threats to national security, but also of returning property "to the ownership of the Ukrainian people," as Secretary of the National Security and Defense Council Oleksiy Danilov put it.

According to Danilov, the authorities do not plan to stop there. He has promised sanctions against other people and the return of assets - "everything that has been snatched since 1991."

"Trust me, there’s more. There will be offshores, property ... Besides, I can say: all MPs who have a fortune of 300-400 million. Good people, where did you get it? You have never worked in business," he said.

The National Security and Defense Council allows the president to make crucial decisions in a flash and without a court decision, so possible abuses and the "Pandora's box" will be discussed. For example, Poroshenko has already upfront accused Zelenskyy of intending to close his Priamyi TV channel in this way (as it is in opposition), although neither Poroshenko nor this channel was affected by the outcome of the National Security and Defense Council meeting.

Political scientist Haran agrees that the National Security and Defense Council is an instrument in the hands of the president. And then the question of how he will use it arises. So far, the expert does not see a reason to sound the alarm.

"It all depends on compliance with legal norms and politicization… I rather see the problem in the fact that the National Security and Defense Council has not performed its functions for a long time, it has not been active. I think it is good that the role of this structure is being restored," says the political scientist.

Haran emphasizes that this is a very ambiguous issue: on the one hand, the country needs a strong National Security and Defense Council, on the other hand, it is theoretically possible to use the body to usurp power. That is why everything depends on the "politicization", he sums up.

He himself sees a greater threat to democracy in the "turbo regime" that followed the parliamentary elections, or in the concentration of power in the hands of the head of the Office of President Andriy Yermak.

Be that as it may, the challenges in the field of national security and political will have taken the influence of the National Security and Defense Council to a new level, and under conditions of Russian aggression, it seems quite appropriate. But no one can guarantee that this will not lead to abuse in the future - as there are no such guarantees for any other authority in Ukraine and the president himself.