Constitutional-legal analysis of the Resolution of the Supreme Council «On stabilization of political and social-economic situation in Ukraine and prevention of anti-Constitutional actions endangering sovereignty and territorial integrity of Ukraine» of 1 December 2004
In the connection with adoption by the Supreme Council of Ukraine of the decision on distrust to the Cabinet of Ministers of Ukraine and in the connection with the statement of the Prime Minister of Ukraine on non-recognition of this decision, since, in his opinion, it does not meet the demands of the Constitution of Ukraine, we, experts in the sphere of constitutional right of Ukraine, conducted the independent constitutional-legal analysis of item 7 of the considered Resolution of the Supreme Council of Ukraine and came to the following conclusions:
1. According to part 2 of Article 113 of the Constitution of Ukraine, «The Cabinet of Ministers of Ukraine is controlled by and accountable to the Supreme Council of Ukraine within the limits envisaged by Articles 85 and 87 of the Constitution of Ukraine». This constitutional provision means that the Parliament is empowered to exercise control over the activities of government. This control has the following forms: hearing of the reports of the Cabinet of Ministers on fulfillment of the State budget (item 4 part 1 of Article 85 of the Constitution), discussion of the results of consideration by government of deputies’ requests to the Cabinet of Ministers (Article 86 of the Constitution), conduction of parliamentary hearings with the aim of studying the fulfillment by the Cabinet of Ministers of Ukrainian Constitution, laws of Ukraine, resolutions of the Supreme Council of Ukraine (item 1 of the Regulations on conduction of parliamentary hearings in the Supreme Council of Ukraine of 11 December 2003), conduction of hearings in the Supreme Council committees (Regulations on conduction of parliamentary hearings in the committees of the Supreme Council of Ukraine of 11 December 2003), etc.
Depending on the results of the parliamentary control over the activities of the Cabinet of Ministers of Ukraine, the Parliament can approve various decisions, in particular, according to part 1 of Article 87 of the Constitution of Ukraine, the Parliament has the right to adopt the resolution on distrust to the Cabinet of Ministers of Ukraine, which, in accordance with part 4 Article 115 of the Constitution, «implies resignation of the Cabinet of Ministers».
Thus, the Parliament has the constitutional right to dismiss the government. This right is one of the main elements of the system of «containment and counterbalance», which should guarantee the efficiency of functioning of the mechanism of realization of state power in a modern democratic state, render impossible the «domination» of one power branch over another one, prevent usurpation of the power and guarantee mutual control between different branches of state power.
At the same time the Constitution of Ukraine does not allow, with the aim of guaranteeing of stability of the government, the consideration by the Supreme Council of Ukraine of the question on responsibility of government «during a year after the approval of the Program of activities of the Cabinet of Ministers of Ukraine (part 2 Article 87 of the Constitution of Ukraine). Yet, the comparison of clauses of parts 1 and 2 of Article 87 of the Constitution and their content analysis allow to draw the conclusion that the Program of activities of the Cabinet of Ministers of Ukraine, which should envisage the strategic directions and priorities of development of the state for the years immediately ahead, may be approved only one time during the entire period of its functioning, since, firstly, the State budget of Ukraine serves as an annual program of activities of the government, and, secondly, the annual approval of new Program of activities of the government would render impossible the adoption by Parliament of the resolution on distrust to the Cabinet of Ministers of Ukraine, that is, in fact, would result in «blocking» of action of the Ukrainian Constitution in this part and would deprive the Supreme Council of Ukraine of such an important form of parliamentary control.
1. Besides, according to the Temporary Regulations of the Cabinet of Ministers of Ukraine approved by Resolution of the Cabinet of Ministers of Ukraine No. 915 of 5 June 2000 «Planning of work of the Cabinet of Ministers is carried out on the basis of propositions of central and local organs of executive power by means of adoption of the Program of activities of the Cabinet of Ministers of Ukraine during the period of its authorities, annual State program of economic and social development of Ukraine, other state programs and acts of the Cabinet of Ministers» (item 1 of Section 2 of the Temporary Regulations of the Cabinet of Ministers of Ukraine).
In spite of the fact that the period of authorities of the Cabinet of Ministers of Ukraine is not directly defined in the Constitution, it follows from a series of constitutional norms. In particular, according to items 9 and 10 of Article 106 and parts 2 and 3 of Article 114 of the Constitution of Ukraine, the President of Ukraine appoints, by approbation of the Supreme Council of Ukraine, the Prime Minister and, on the request of the Prime Minister, appoints the personal composition of the Cabinet of Ministers of Ukraine. And according to part 1 Article 115 of the Constitution, «the Cabinet of Ministers of Ukraine abdicates responsibility before the newly-elected President of Ukraine». The analysis of the mentioned provisions of the Ukrainian Constitution evidences that, according to the Constitution of Ukraine, the period of authorities of the Cabinet of Ministers is the period of authorities of the President of Ukraine; the Cabinet of Ministers of Ukraine is formed for this term.
The term of authorities of the President of Ukraine is directly stipulated in part 1 of Article 103 of the Constitution of Ukraine and is equal to five years. So, the Cabinet of Ministers of Ukraine is also formed for the term of five years, if its authorities would not be ceased before the appointed time.
Thus, on the basis of the analysis of the above-mentioned norms of the Constitution of Ukraine and Resolution of the Cabinet of Ministers No. 915 of 5 June 2000, the conclusion can be drawn that the Program of activities of the Cabinet of Ministers of Ukraine should be adopted one time for the entire term of its authorities. Introduction of specifications, changes and supplements into the program is possible, but this may not be regarded as the approval of new Program of activities of the government.
2. The comparative-legal analysis of the contents of the Program of activities of the Cabinet of Ministers of Ukraine «Openness, effectiveness, potency», approved by the Supreme Council of Ukraine on 17 April 2003, and the Program of activities of the Cabinet of Ministers of Ukraine «Consistency. Effectiveness. Responsibility», approved by the Supreme Council of Ukraine on 16 March 2004, evidence that, both by structure and the titles of structural parts, this is practically the same plan of actions of the government, only with some specifications and appendages, which, in aggregate, do not change the strategic directions of work of the Cabinet of Ministers of Ukraine. The Program «Consistency. Effectiveness. Responsibility» reads: «… the Program concretizes the main goals and tasks concerning the creation of socially efficient and politically responsible power and institutes of civil society». Therefore, the approval by the Supreme Council of Ukraine on 16 March 2004 of, in fact, specified Program of activities of the Cabinet of Ministers of Ukraine did not deprive the Supreme Council of the right to adopt the resolution on distrust to the Cabinet of Ministers of Ukraine even without cancellation of its Resolution on the approval of this Program.
Besides, the analysis of goals and contents of the last Program of activities of the Cabinet of Ministers of Ukraine, taking into account the recent events in political, social and economic life of Ukraine, evidenced that the government not only could not guarantee the fulfillment of these goals, but played a waiting game and, as a consequence, proved its absolute incapacity.
3. Yet, the main argument in favor of acknowledgment that the Resolution of the Supreme Council about resignation of the government fully conforms to the Ukrainian Constitution lies in the fact that, under the conditions of deep political crisis, when the government has not taken the proper measures for guaranteeing of rights and freedoms of citizens in the process of preparation and conduction of election of the President of Ukraine of 2004, wasted large budget sums (while it appeared to be impossible to clear up the will of the taxpayers), demonstrated absolute inertness and passivity in the cases, where it had to act resolutely and consistently, thus directly violating the provisions of items 1, 2, 3, 7 and 9 of Article 116 of the Constitution of Ukraine. The government lost the trust both of the Parliament and of the society, so there is every reason to believe that governmental crisis has arisen in Ukraine. So, the demand to the government to act adequately in this situation is similar to the demand to a paralyzed man to get up and do gymnastics. In extreme situation, when the overwhelming majority of power organs avoid the fulfillment of their duty, only the Parliament has the ability and potential to undertake the resolute actions, in particular, thanks to the sensible position of the Head of the Supreme Council of Ukraine.
4. Thus, item 7 of the Resolution of the Supreme Council «On stabilization of political and social-economic situation in Ukraine and prevention of anti-Constitutional actions endangering sovereignty and territorial integrity of Ukraine» of 1 December 2004 completely corresponds to the Constitution of Ukraine and is obligatory for fulfillment by the Cabinet of Ministers of Ukraine.
Viktor Kolisnyk, Doctor of Law
Fedir Venislavskiy, Candidate of Law
Viktor Kychun, Candidate of Law
Pavlo Liubchenko, Candidate of Law
3 December 2004