Analysis of Viktor Yushchenkos appointment of acting Prime Minister and Head of the Security Service
A constitutional and legal analysis of the resolution of President of Ukraine V. Yushchenko on the appointment of Yury Yekhanurov to the post of acting Prime Minister of Ukraine and I. Dryzhchany to the post of the head of the Security Service of Ukraine
Specialists in the sphere of constitutional right of Ukraine are deeply anxious about the systematic violations by the organs of state power of Ukraine of the demands of the Constitution of Ukraine, which has been vividly illustrated by the recent actions and resolutions of the President of Ukraine.
The procedure of appointment and termination of authorities of the Cabinet of Ministers of Ukraine, Prime Minister of Ukraine, ministers and other central bodies of executive power is determined by the Constitution of Ukraine, viz. Articles 106, 114 and 115.
According to item 9 of part 1 of Article 106 of the Constitution of Ukraine, “the President of Ukraine appoints the Prime Minister of Ukraine with the consent of the Verkhovna Rada of Ukraine; terminates the authority of the Prime Minister of Ukraine and adopts a decision on his or her resignation”.
In accordance with part 2 of Article 114 of the Constitution of Ukraine, “The Prime Minister of Ukraine is appointed by the President of Ukraine with the consent of more than one-half of the constitutional composition of the Verkhovna Rada of Ukraine.”
Part 5 of Article 115 of the Constitution of Ukraine reads: “The Cabinet of Ministers, whose resignation is accepted by the President of Ukraine, continues to exercise its powers by commission of the President, until a newly-formed Cabinet of Ministers of Ukraine commences its operation, but no longer than for sixty days.”
According to part 2 of Article 19 of the Constitution, “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”.
The quoted provisions of the Basic Law evidence that the Constitution of Ukraine does not contain any norms that give the right to the President of Ukraine to appoint an acting Prime Minister and to give any competences connected with forming of new composition of the government.
Thus, having declared publicly about the appointment of Yu. Ehanurov to the post of acting Prime Minister of Ukraine, the President of Ukraine has violated again the Constitution of Ukraine, the observance of which he must guarantee (for the first time the President violated the demands of the Basic Law on 4 February 2005 during forming of the government and appointment of heads of regional state administrations).
After the discharge of the government the President of Ukraine had, first of all, to order, in accordance with part 5 of Article 115 of the Constitution of Ukraine, to continue the exercise its powers, and, secondly, to submit for consideration of the Parliament the candidature to the post of the Prime Minister, independently or after political consultation. And only after the appointment by the President, with consent of the Supreme Council, of the Prime Minister the latter can submit to the head of the state the candidatures to the Cabinet of Ministers of Ukraine.
As a consequence of violation by the President of the procedure of forming of new composition of the government, stipulated by the Constitution of Ukraine, the situation has been artificially created, which can result in aggravation of the political crisis, since now there are no guarantees that the Parliament would agree to the appointment of Yu. Ehanurov to the post of the Prime Minister.
Moreover, on the same day the President went beyond his commission once more, appointing I. Dryzhchany to the post of the head of the Security Service of Ukraine. As it has been already said, according to item 10 of part 1 of Article 106 of the Constitution of Ukraine, the President of Ukraine appoints the members of the Cabinet of Ministers of Ukraine and chief officers of other central bodies of executive power only on the submission of the Prime Minister of Ukraine. Yet, since the Cabinet of Ministers, as well as the Prime Minister of Ukraine, was discharged, there was nobody to submit the candidature of I. Dryzhchany to the President for appointment to the post of the USS head.
So, the President of Ukraine, in order to guarantee the stability in the state, should have rejected O. Turchinovs appeal about his resignation, since, in accordance with the Constitution of Ukraine, the acceptance of resignation results in the stalemate situation, when it is impossible to observe the constitutional procedure of appointment of new head of the USS until the appointment of the Prime Minister. And this process can be rather prolonged.
Viktor Kolisnyk, Doctor of Law
Fedir Venislavskiy, Candidate of Law
Viktor Kichun, Candidate of Law
Translated from http://maidan.org.ua/ ( http://maidan.org.ua/static/mai/1126284746.html)