On the possibility of terminating the authority of the Verkhovna Rada: A constitutional analysis
Early termination of the authority of the Verkhovna Rada may for the President be the best option for the unfolding of the political situation in the country. This is despite all the drawbacks of such a solution. The main drawbacks are the prolonging of the lack of an operating legislative body for another 4-5 months, and the fact that the Budget for next year will not be passed at the right time. A less significant drawback would be the probable result of new elections which would be unlikely to cheer “Nasha Ukraina” [“Our Ukraine”].
The advantages, on the other hand, are more significant. Firstly, the continuation in that case of the powers of the Cabinet of Ministers under Yekhanurov, which for the first time since spring 2005 would be exercised in conditions of positive economic trends. The results of the government’s activities in the second half of 2006 would be considerably better than in the first half. Secondly, there would be a change to reform the “orange” team and increase its capabilities
Nonetheless, what is most important in the present situation for the orange forces is that at the end of the day there is no other option. Since, given the organization, aggressiveness and lack of any moral holds, a coalition agreement between “Nasha Ukraina” and the “Anti-crisis coalition” would be like an agreement between a rabbit and a boa-constrictor. With the boa constrictor not devouring the rabbit in one fell swoop, but gradually. One cannot expect that the present representatives of the “Party of the Regions” would keep any agreements or laws, with members of this party having an entirely different mentality.
However in any case the authority of the Verkhovna Rada may only be terminated in a manner which is unassailable in legal terms and entirely compliant with the Constitution of Ukraine. The discussion taking place proves that this is no simple matter.
The right to terminate the authority of the Verkhovna Rada before the expiry of their term is held by the President (Article 90 of the Constitution of Ukraine), and in this case he also calls special elections to the Verkhovna Rada (Article 77 of the Constitution).
There is no provision for either the Verkhovna Rada, or any other body taking the decision to dissolve the Ukrainian Parliament. We would note here that for the President this is a right, not a duty. However it is a crucial right and Article 90 of the Constitution provides an exhaustive list of the grounds for passing such a Decree:
- if within one month a coalition of deputy factions which includes a majority of State Deputies has not been formed;
- if within sixty days from the resignation of the Cabinet of Ministers of Ukraine a new Cabinet of Ministers has not been formed;
- if during thirty days of one regular session, no plenary sessions have been able to commence.
1. Formation of the coalition
It is impossible not to agree with the conclusion of the President regarding the infringement of the Constitution of Ukraine by the Speaker of the Verkhovna Rada, Oleksandr Moroz, during the announcement at the session of the Verkhovna Rada of the termination of the coalition of democratic forces.
According to the Constitution of Ukraine the parties to such a coalition are not individual deputies, but the deputy factions. Thus, pursuant to paragraph six of Article 83 of the Constitution, a coalition of deputy factions is formed in the Verkhovna Rada following the outcome of the elections and on the basis of agreement over political positions. This is specifically between factions, and not individual deputies. The qualifying demand is that the number of deputies in the factions which create the coalition must be a majority of the State Deputies of Ukraine from the constitutional makeup of the Verkhovna Rada.
Therefore the numerical strength of the coalition is determined not by signatures of individual deputies, but by the overall numerical strength of the factions which formed the coalition. Neither the Constitution of Ukraine, nor the Regulations of the Verkhovna Rada envisage the possibility of individual deputies either joining or leaving the ranks of the coalition. Therefore the statements of 26 socialists that they are withdrawing from the “Coalition of democratic forces”, or those from individual deputies of the factions of “Nasha Ukraina” and the Bloc of Yulia Tymoshenko (BYuT) of their joining the “Anti-crisis coalition” have no legal ramifications. They cannot form grounds for announcing the termination of one coalition or the creation of another.
Nor is this norm of the Constitution contravened by the Regulations of the Verkhovna Rada, according to Article 61 of which a coalition is formed by deputy factions, with the coalition agreement being signed by authorized representatives of the factions, and a list of the members of the deputy factions which have formed the coalition, with the personal signatures of their State Deputies, is added to the coalition agreement. Thus the presence of such signatures is not an expression of agreement or lack of such from the deputies at joining the coalition, the signatures merely confirming the fact that the deputies belong to the specific faction. Effectively in the given instance the mechanism is outlined (although insufficient information regarding the consequences) for the force of an imperative mandate. With this mandate, a deputy’s joining or leaving the faction may result in the suspension of his or her deputy’s mandate.
One may assume that Oleksandr Moroz infringed the norm of the Constitution of Ukraine knowingly in order to avoid the rules and procedure envisaged by the Regulations for the withdrawal of the faction of the Socialist Party of Ukraine (SPU) from the “Coalition of democratic forces”.
According to Article 65 of the Regulations a deputy faction has the right at any time to withdraw from the coalition having warned the leaders of the other deputy factions in the coalition of this in writing not less than ten days before the date of withdrawal. At the conclusion of the 10-day period the Speaker at the session of the Verkhovna Rada gives notification of the withdrawal of the faction from the coalition. After this the situation envisaged by Article 65 of the Regulations may indeed arise. That is, when after the withdrawal of the faction from the coalition the number of members of the coalition is less than 226, as a result of which the coalition ceases to be functional. That is, not earlier than 21 July.
In accordance with paragraph seven of Article 61 of the Regulations it is only after this that a new coalition can be created and the submission of a candidate for the office of Prime Minister be put forward in its name.
In our opinion, under such circumstances, on 26 July the President should hand the submission to appoint Viktor Yanukovych as Prime Minister back to the Verkhovna Rada as having been put forward by a party not empowered to make such a submission. That party being the coalition of deputy factions formed with infringements of the requirements of the Constitution of Ukraine and the Regulations of the Verkhovna Rada. Obviously the President can also act differently. He can in fact present Yanukovych’s candidacy for the position of Prime Minister.
A possible consequence of the returning of the submission might be the appointment of Yanukovych Prime Minister without the President’s submission. The possible responses of the President to such a move could be:
а) to pretend that nothing had happened. Soon after this he would be thrown out in the same manner (illegally) from the Mariynsky Palace[1];
б) to hand in his resignation;
в) to go through the Supreme Court to have such actions declared an attempted coup d’état, to gain a ruling banning the “Party of the Regions”, the SPU and the Communist Party of Ukraine (CPU), and dissolving the corresponding factions (if there is no party, there can be no party factions).
The last option would be too risky for the “Regionals”, and most probably the “Anti-crisis coalition” will be formed again in accordance with the law. In this case, the President of Ukraine will have no legal grounds for terminating the authority of the Verkhovna Rada, since the parliamentary majority at present has sufficient time to carry out the process of forming a coalition in compliance with the law.
2. The formation of the Cabinet of Ministers
In our view, Article 115 of the Constitution contains sufficiently separate concepts of “renders resignation” and “resignation” for the deputy majority to have the right to consider that these are legally separate concepts[2]. At least an opinion on this would need to be provided by the Constitutional Court which is at present not functioning. Therefore the issue of a Presidential Decree terminating the authority of the Verkhovna Rada because it had not, over a period of two months, formed a Cabinet of Ministers would be excessively artificially and not convincing to the public. First and foremost, from the point of view of adherence to the norms of the Constitution.
Analogous considerations arise with regard to using the Decision of the Verkhovna Rada from the previous formation on dismissing the Government, passed in January 2005, as a reason for dissolving Parliament. Although the legal grounds for terminating the authority of the Verkhovna Rada in that case were unassailable, it would nonetheless be difficult to explain the logic of the President’s actions to either the Ukrainian public or to the world community. Namely why such actions had not been taken previously.
We also consider lacking in justification the opinion of the legal department of the Secretariat of the President regarding the President’s right to submit or not submit the candidate proposed by the parliamentary coalition. Such an opinion runs counter to the competence of the President of Ukraine as defined by the Constitution. The period of 15 days is not granted for him to consider whether or not to submit such a candidate, but for purely technical arrangements. In reality the right to not put forward the candidate is not envisaged, and such actions would contradict the spirit of the “constitutional reform”,
We therefore consider that at least on 26 July a decision to terminate the authority of the Verkhovna Rada ahead of term on the grounds that the Cabinet of Ministers has not been formed should not be taken due to the lack of constitutional grounds.
3. The impossibility of beginning plenary sessions
The possibility of achieving an early termination of the authority of the Verkhovna Rada lies at present with any political force represented in Parliament by more than 150 deputies. In general this poses a considerable threat to the Ukrainian parliamentary system, since a fairly powerful political force which has lost (or will lose in the future) the elections can bring about the designation of special elections or can block the activities of the Verkhovna Rada.
This can take place by means of suspending the mandate of deputies elected from that party on condition of the prior withdrawal from the party (bloc) list of all candidates included before the elections.
This suggestion has already been heard from activists of the party “Pora”.
According to Article 82 § 2 of the Constitution of Ukraine, the Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected. In keeping with the Judgment of the Constitutional Court on 17 October 2002, Case N 1-6/2002 N 17-рп/2002, the Verkhovna Rada of Ukraine is competent, that is, is able to pass laws and to carry out its other constitutional powers on the condition that no less than two-thirds of its constitutional composition has been elected. This constitutional requirement is the condition for the competence of the Verkhovna Rada of Ukraine throughout the term of its office, and cannot be considered merely as grounds for opening its first meeting of the first parliamentary session. In the case of a reduction for any reason in the makeup of Parliament to a number less than three hundred State Deputies of Ukraine, the activities of the Verkhovna Rada should be suspended until the necessary number of appropriately elected State Deputies of Ukraine have been sworn in.
Pursuant to Article 101 § 1 of the Law of Ukraine “On the elections of State Deputies of Ukraine”, in the event of early termination of the mandate of a State Deputy, on the basis of and according to the rules and procedure set down in the Constitution of Ukraine and the laws of Ukraine, on the decision of the Central Election Commission the next person on the candidate list for State Deputy of the relevant party or bloc is considered elected. If there are no more candidates to receive deputy mandate on the list, the deputy mandate shall remain vacant until the holding of regular or special elections.
Thus in the case of the termination of the mandates of all deputies from a party (or parties) that have more than 150 deputies, the Verkhovna Rada ceases to have competence, and 30 days after this the President should designate special elections.
However, let us consider an important nuance. According to Article 81 of the Constitution of Ukraine, in the event of a submission by a State Deputy of his or her resignation through a personal statement, the decision to accept the resignation is taken by the Verkhovna Rada, and the Constitution does not stipulate the specific timescale within which this should take place. As for the Regulations, amendments to this document may be made at any time.
Thus it is an entirely feasible prospect that in the event of the Verkhovna Rada receiving personal statements of resignation from all deputies from the factions of BYuT and “Nasha Ukraina”, that the parliamentary majority would only accept the resignations of those from BYuT, and the others in opposition would have the resignations accepted some time. Perhaps a day before the expiry of the term of authority of the Verkhovna Rada.
We imagine that if this step to achieving special elections is to be used, then it would be better to submit to the Verkhovna Rada declarations stating withdrawal from the factions. And then, already to the Central Election Commission send the decision of the central bodies of the blocs on the early termination of the mandate of the deputies via their withdrawal from the factions. This is in accordance with the last paragraph of Article 81 of the Constitution of Ukraine.
We would reiterate that it is specifically this inadequacy in our legislation which demands rectification as soon as is feasible.
[1] the Mariynsky Palace is where official Presidential functions are held [translator’s note]
[2] Article 115 “ The Cabinet of Ministers of Ukraine tenders its resignation to the newly-elected President of Ukraine.
The Prime Minister of Ukraine, other members of the Cabinet of Ministers of Ukraine, have the right to announce their resignation to the President of Ukraine.
The resignation of the Prime Minister of Ukraine results in the resignation of the entire Cabinet of Ministers of Ukraine.
The adoption of a resolution of no confidence in the Cabinet of Ministers of Ukraine by the Verkhovna Rada of Ukraine results in the resignation of the Cabinet of Ministers of Ukraine….” It is worth noting that the noun “vidstavka” may in English mean resignation, or dismissal. [translator’s note]