search  
print
24.01.2006 | Viktor Kolisnyk, Fedir Venislavsky, Viktor Kychyn, Kharkiv

The Resolution of the Verkhovna Rada on the dismissal of the government: a constitutional and legal analysis

   

The events of 10 January 2006 when the Verkhovna Rada of Ukraine adopted Resolution No. 3295-IV “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” has elicited a whole range of varying assessments and commentaries, very often contradictory and here and there even mutually exclusive. Given the particular immediate relevance for both the State and for all Ukrainian society of the issue of the dismissal of the Cabinet of Ministers of Ukraine particularly considering that the amendments to the Constitution of Ukraine (which include new means of regulating the procedure for dismissal and formation of a new government) came into effect on 1 January 2006, it is important to carry out an impartial constitutional and legal analysis of both the procedure and the grounds for adopting the above-mentioned Parliamentary Resolution.

1  In the Constitution of Ukraine the issue of the early termination of the powers of the Ukrainian Cabinet of Ministers is addressed in only three places: In Part 1 of Article  85, Point 12 which includes among the powers of the Verkhovna Rada of Ukraine “deciding on questions involving the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” (here and later highlighting by the authors); Article 87 which establishes the procedure for the dismissal of the Cabinet of Ministers of Ukraine resulting from the adoption by the Verkhovna Rada of Ukraine of a resolution of no confidence in the  Cabinet of Ministers of Ukraine;  Article 115 which provides a comprehensive list of grounds for the early termination of the powers of the Cabinet of Ministers of Ukraine:

a)  The Prime Minister of Ukraine and the other members of the Cabinet of Ministers of Ukraine have the right to submit their resignation to the Verkhovna Rada of Ukraine;

b) The resignation of the Prime Minister of Ukraine shall result in the resignation of the entire Cabinet of Ministers of Ukraine:

c)  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 would hardly be controversial to state here that the constitutional provisions which regulate one and the same relations must only be applied in close interconnection and interaction, and not in separate isolation, one from the other.

Point 12 Part 1 of Article 85 of the Constitution of Ukraine in accordance with which the Verkhovna Rada of Ukraine decides on the issue of the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine means only that it is specifically Parliament which takes the ultimate decision with regard to dismissal and only in that instance where all government figures, the Prime Minister of Ukraine or separate members of the Government (even one minister) announce their own resignation (in accordance with Part 2 of Article 115 of the Constitution of Ukraine).

And here in the case where a question arises regarding the unsatisfactory fulfilment by the Government of the powers vested in it or its responsibility – the special procedure set down in Article 87 of the Constitution of Ukraine should be applied. In particular the question of responsibility of the Government (the result of the review of which may lead to the adoption of a resolution of no confidence in the Government which should then result in its dismissal can be raised either at the initiative of the President of Ukraine or of no less than one hundred and fifty State Deputies of Ukraine.

The fact that in order to dismiss the Government, the Verkhovna Rada made use of the powers stipulated in Point 12, Part 1 of Article 85 of the Constitution of Ukraine means in practice a virtually absolute blocking of the force of Article 87 of the same Constitution.   Under such application of Point 12, Part 1 of Article 85 of the Constitution of Ukraine the provisions set down in Article 87 off the Main Law lose any sense whatsoever, since the Parliament is able to easily bypass this specially set down procedure for the early termination of the Government’s powers at the initiative of Parliament which is allowed for by the Constitution of Ukraine for the purpose of safeguarding the stability of the activity of the Government and avoiding artificially created government crises.

The reference made by the Verkhovna Rada of Ukraine to Point 12, Part 1 of Article 85 of the Constitution of Ukraine was explained purely by the circumstance that there had been no prior suggestion by the President of Ukraine, nor any previous submission by 150 State Deputies regarding a review of the question of the Government’s responsibility.

Part 2 of Article 19 of the Ukrainian Constitution states that “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”.  This constitutional provision obliges those vested with State power and authority, which includes the Ukrainian Verkhovna Rada, to act only in accordance with the Constitution and legislation of Ukraine.  Yet by adopting the Resolution regarding dismissal, the Ukrainian Parliament breached the constitutionally established procedure for early termination of the Government’s powers.

It is worth noting that the above-outlined powers were removed from the competence of the President of Ukraine and mechanically (without appropriate adaptation) passed to the competence of the Verkhovna Rada of Ukraine by the Law of Ukraine “On introducing amendments to the Constitution of Ukraine” from 8 December 2004.  This yet again demonstrates the inadequacy of the constitutional reform as a whole and the lack of coordination of the constitutional amendments introduced.

2. A comprehensive analysis of the content of the section setting out reasons of the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January 2006 suggests that the actual grounds for the adoption of the parliamentary decision regarding the dismissal of the Government were that the latter’s work was deemed unsatisfactory. In other words Parliament de facto concluded that the Government had not fulfilled its duties appropriately and expressed a vote of no confidence, while de jure it dismissed the Government without a formal resolution of no confidence.

We consider that under such circumstances the Verkhovna Rada of Ukraine did not have the right to adopt the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January 2006 citing Point 12, Part 1 of Article 85 of the Constitution of Ukraine.

3. At the same time, as of the present day, from a legal point of view, the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January is subject to unconditional fulfilment from the moment it comes into force.

Any decision declaring the Resolution in contravention of the Constitution (declaring it unconstitutional) on the basis of infringements of the procedure envisaged by the Constitution of Ukraine for its review and adoption  may only be taken by the Constitutional Court of Ukraine. Until such a judgement is issued by the Constitutional Court of Ukraine no other body can revoke the Resolution adopted by the Verkhovna Rada of Ukraine on 10 January 2006, declare it unconstitutional, ignore it or call for it to be ignored

The lack of a constitutionally established number of judges in the Constitutional Court of Ukraine does not constitute grounds for its functions being taken over by another State body or official.

Therefore, in accordance with Part 4 of Article 115 of the Constitution of Ukraine the Cabinet of Ministers of Ukraine continues to exercise its powers (will “fulfil its duties”) until the formation by the Verkhovna Rada of Ukraine of a new Government, or until the declaration of the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January 2006 unconstitutional by the Constitutional Court of Ukraine.

4. An analysis of the Constitution of Ukraine in the version which came into force on 1 January 2006 makes it possible to conclude that before a newly elected Verkhovna Rada takes office in 2006, neither the President of Ukraine nor Parliament are about to initiate the formation of a new government.

Part 8 of Article 83 of the Constitution of Ukraine, in accordance with which a coalition of factions in the Verkhovna Rada submits proposals to the President of Ukraine regarding a candidate for the office of Prime Minister of Ukraine, and also presents suggestions to Parliament regarding candidates for the Cabinet of Ministers of Ukraine (except for the Ministers of Defence and of Foreign Affairs, where the President of Ukraine submits proposals), has not yet come into force.

Yet at the same time the President of Ukraine has, since 1 January 2006, already lost his powers with regard to appointing with the consent of the Verkhovna Rada of Ukraine the Prime Minister of Ukraine (Point 9, Part 1 of Article 106 of the Constitution of Ukraine in the edition from 28 June 1996) and to appointing on the submission of the Prime Minister of Ukraine members of the Cabinet of Ministers of Ukraine (Point 10 Part 1 of Article 106 in the same edition). 

Thus, according to the current version of the Main Law of Ukraine the formation of a new Cabinet of Ministers of Ukraine (with the exceptions of the Ministers of Defence and of Foreign Affairs) before the Verkhovna Rada of Ukraine elected in 2006 take office is impossible.  

Until such time the Constitution of Ukraine envisages the possibility of the legitimate appointment of only two ministers - of defence and of foreign affairs.  The President of Ukraine as of the present time has the constitutional right to present a submission to the Verkhovna Rada of Ukraine regarding the appointment of the Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine (Point 10 Part 1 of Article 106 of the Constitution of Ukraine in the version which came into effect on 1 January 2006).  The Verkhovna Rada of Ukraine as of the present time also has the constitutional right to appoint, on the submission of the President of Ukraine the Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine (Point 12 Part 1 of Article 85 of the Constitution of Ukraine in the version which has been in force since 1 January 2006).

 

Commentary from KHPG  While agreeing with the conclusions of these experts, we nonetheless have a somewhat different approach to the coming into effect of the amendments to the Constitution, adopted on 8 December 2004.  We assert that since these amendments were passed in flagrant violation of the constitutional procedure for introducing amendments to the Constitution, they cannot a priori be considered to have legal force.  One cannot build anything on a rotten foundation. In our opinion, the Constitutional Court should definitely review the question of whether the “package” vote taken on 8 December 2004 complied with the norms of Section XIII of the Constitution. We consider that the only decision possible would be to declare the results of the voting of 8 December invalid. Otherwise the constitutional norm according to which Ukraine is a law-based country loses any meaning.

The Editorial Council

Recommend this post
X




forgot the password

registration

X

X

send me a new password


on top