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08.02.2006 | Viktor Kolisnyk, Fedir Venislavsky, Viktor Kychyn, Kharkiv

Can the Verkhovna Rada really not revoke its Resolution on the dismissal of the government?

   

Since the passing by the Verkhovna Rada on 10 January 2006 of Resolution No. 3295-IV “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” , there has been animated discussion in the Mass Media of possible ways of changing or revoking this. All of the ideas and suggestions put forward effectively boil down to three conceivable variants for resolving the problem.

The first is the proposal to simply not recognize the Resolution of the Verkhovna Rada since it was passed with infringements of procedure stipulated by the Constitution of Ukraine. This was the position which was expressed back on 10 January by the President of Ukraine, Viktor Yushchenko, and backed by the Prime Minister, Yury Yekhanurov.

We have already expressed our opinion in this regard (http://www.khpg.org.ua/index.php?id=1138111171 ) which can be summarized as follows: from the formal legal point of view, the Resolution of the Verkhovna Rada of Ukraine “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 from the moment of its coming into force must undoubtedly be implemented.  Only the Constitutional Court of Ukraine may declare this Resolution to not be in compliance with the Constitution of Ukraine (declare it unconstitutional) on the grounds of a breach of the procedure for its review and adoption stipulated by the Constitution of Ukraine.  Furthermore, until such time as the Constitutional Court of Ukraine issues such a ruling, no other body may revoke the Revolution adopted by the Verkhovna Rada of Ukraine on 10 January 2006, formally declare it unconstitutional), ignore it or call for it to be disregarded.

A second way of resolving the issue is for the relevant parties (in particular, the President of Ukraine, or not less than 45 State Deputies of Ukraine) to exercise their constitutional right to turn to the Constitutional Court of Ukraine with the constitutional petition with regard to declaring the Resolution of the Verkhovna Rada of Ukraine On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 not in compliance with the Constitution of Ukraine.

We are all aware, however, that this step is improbable given the lack of a constitutional full composition of the Constitutional Court of Ukraine and the fact that it is unlikely that in the nearest future the judges of the Constitutional Court of Ukraine  will be sworn in.  At the same time, we believe that it is precisely in this direction that the activity of the Head of State, Head of Parliament, people’s representatives and the Ministry of Justice should have been focused (and not on political accusations of one institution by another, on political rhetoric and commentaries of the situation that had arisen).

Particular attention should be concentrated on the fact that the swearing in of the judges of the Constitutional Court of Ukraine is not a right, but the duty of the relevant State bodies and officials. The legal significance of this procedure is in the fact that specifically this process is the last legal step with which legislation links the taking of office of judges of the Constitutional Court, and thus the assumption of their powers.  It is specifically from the day that a judge of the Constitutional Court is sworn in that the regulations of the Law of Ukraine “On the Constitutional Court of Ukraine” and the Regulations of the Constitutional Court of Ukraine take force in full measure.

The special procedure of swearing in a judge of the Constitutional Court mentioned above is to ensure the process of succession in the activity of the Constitutional Court of Ukraine. Neither the Constitution of Ukraine, nor current legislation set out any possibility for suspending the activity of the Constitutional Court. This means that it should work without breaks. Therefore all State bodies and officials on whom legislation vests the duty of forming the Constitutional Court of Ukraine and of swearing in the judges of the Constitutional Court must coordinate their actions and are obliged to cooperate among themselves regardless of their political preferences, political prognoses and their own perception of political prospects.

In accordance with Part 3 of Article 17 of the Law of Ukraine “On the Constitutional Court of Ukraine”, a judge of the Constitutional Court of Ukraine «makes his or her oath at a sitting of the Verkhovna Rada of Ukraine which is held with the participation of the President of Ukraine, the Prime Minister of Ukraine, the Head of the Supreme Court of Ukraine, no later than a month after the appointment of the said judge of the Constitutional Court of Ukraine”.  This means that the Speaker of the Verkhovna Rada was obliged to agree in advance a date for this special sitting of Parliament with the people mentioned above and ensure that there was no clash with official visits, and then add the event to the agenda for sittings of the Verkhovna Rada of Ukraine, as well as issuing in advance formal invitations to the said State officials to attend the sitting.

The inaction of the Speaker of the Verkhovna Rada of Ukraine and his vice-speakers, on the one hand, cannot be justified by any assumptions about the likelihood that the Constitutional Court of Ukraine will be used by certain political factions in order to “block” the political “reform” through declaring the Law of Ukraine  “On introducing amendments to the Constitution of Ukraine” from 8 December 2004 unconstitutional, while on the other must be viewed as improper carrying out by a State official of the duties of his office, or even as negligence or misuse of power.  Thus, the swearing in of judges of the Constitutional Court of Ukraine must not be the result of political whim, preferences, bias or political engagement.

Furthermore, in accordance with the Decision of Constitutional Court of Ukraine  from 17 October 2002 № 17-рп/2002 «The Verkhovna Rada of Ukraine is vested with the right to pass laws and carry out other constitutionally stipulated powers on condition that at the plenary sittings at the time of voting the number of State Deputies of Ukraine present is not less than the number which according to the Constitution of Ukraine is needed to make the relevant decision (Part four of Article 89, Article 91, Part four of Article 94, Parts two, five and six of Article 111, Part one of Article 135, Article 155, Part one of Article 156)”

However since Parliament is taking no decision as regards the swearing in of judges of the Constitutional Court, one can draw the conclusion that such a special sitting of Parliament will be empowered regardless of the number of State Deputies of Ukraine who for one reason or another are absent.  Any attempts to impede the holding of a sitting of the Verkhovna Rada of Ukraine intended for the swearing in of judges of the Constitutional Court of Ukraine, should be classified as obstruction of the implementation of powers and as impinging upon the foundations of the constitutional system.

However, in the opinion of most politicians, legal specialists and publicists, the most realistic and therefore also the most acceptable would be the third option. This would involve the Verkhovna Rada of Ukraine changing their own Resolution № 3295-ІV from 10 January 2006 “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine”. It is this last that the President of Ukraine, Viktor Yushchenko is insisting upon at present and he has already turned to the Verkhovna Rada of Ukraine with the relevant demand.

Taking into consideration these circumstances, we deem it to be necessary to carry out a constitutional and legal analysis of the legal grounds for implementing the last suggestion in practice.

According to Part 2 of Article 19 of the Constitution of Ukraine “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 means that State bodies do not have the right to act on their own discretion and as they please. They may take only those decisions which are directly envisaged by the Constitution and the laws of Ukraine.

A detailed analysis of the constitutional powers of the Verkhovna Rada of Ukraine demonstrates that according to Part 1, Point 12  of Article 85 of the Constitution of Ukraine Parliament has the right only to make a decision about the dismissal of the Prime Minister of Ukraine and members of the Cabinet o Ministers of Ukraine. The Ukrainian Parliament does not have the right to change its own decision regarding the dismissal of the Prime Minister of Ukraine and members of the government.  Nor does any  other law of Ukraine provide this right.  On the basis of this, one can conclude that the Verkhovna Rada of Ukraine cannot change its own resolution about the dismissal of the government.

The theoretical prerequisites for such a conclusion are studied by law students during their first year at a law institute when considering the grounds for the emergence, change or suspension of legal relations. Every lawyer knows that such grounds are provided by a legal fact (or combination of such) which can be law-creating, with which the law connects the appearance of legal relations, law-amending, with which the law connects amendments to existing legal relations, and law-suspending, which are involved in the law accordingly with suspending legal relations. An analysis from this position of the formal legal meaning of the Resolution of the Verkhovna Rada of Ukraine “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 it is easily possible to come to the conclusion that this is specifically a law-suspending legal fact. From the moment that such a Resolution comes into force, the government is unconditionally considered as being dismissed, however in accordance with Part 4 of Article 115 of the Constitution of Ukraine it continues to carry out its functions.

There is only one single way that the Verkhovna Rada of Ukraine can change the legal status of this composition of the government from “acting” to having the fully-fledged constitutional status of the Cabinet of Ministers of Ukraine, this being by going through the entire procedure stipulated by the Constitution of Ukraine for appointing a new Cabinet of Ministers of Ukraine.  However it is impossible to do this legitimately in the circumstances following the coming into force on 1 January 2006 of the Law of Ukraine “On introducing amendments to the Constitution of Ukraine” from 8 December 2004  and will not be possible until the new Verkhovna Rada of Ukraine, elected in 2006, takes office, since the President of Ukraine no longer has the relevant powers, and the Verkhovna Rada of Ukraine has not yet received them.

To make these legal nuances more accessible to the wider audience, one can draw an analogy between the processes of the dismissal of the government and the dissolution of marriage ties. It is clear to all of us that from the moment that the marriage between husband and wife is dissolved in accordance with legally established procedure, the family [that is, of husband and wife – translator] legally ceases to exist And in order for the family to be established again, what is needed is not a change of the decision to end the marriage (on one’s own private initiative this is not possible at all to achieve legitimately, but rather the entire procedure for registering the marriage in the appropriate State bodies.

The members of the Cabinet of Ministers of Ukraine will thus be “acting ministers” under the newly-elected Verkhovna Rada of Ukraine forms a new government or until the Constitutional Court of Ukraine declares the the Resolution of the Verkhovna Rada of Ukraine “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 to have been unconstitutional.   

 

Comments from Prava Ludyny

In offering this article to the wider public for discussion, we would like to express our disagreement with the main thesis presented regarding the impossibility of Parliament’s revoking its Resolution on the dismissal of the Government.  In our opinion, Parliament can revoke its Resolution since it was passed with infringements of the procedure for the dismissal of the government stipulated by the Constitution, which Parliament was well aware of.  The presence of such infringements was convincingly demonstrated by these very authors in another recently published article (cf. the link above).  We can provide other examples to illustrate our point of disagreement. Take, for example, a decision made about the granting of citizenship when it later transpires that the documents submitted were forged.  Is it really impossible to revoke the decision granting citizenship?  Or where a judge has passed verdict, and then later it becomes clear that the witnesses gave false testimony, and the verdict needs to be annulled.  Should the verdict then remain in force?  The infringement of the procedure for taking a decision should be grounds for revoking the said decision. Thus, Parliament can indeed not revoke a legal resolution on the dismissal of the government – here we would be able to concur with the authors, nonetheless it can revoke its own illegal resolution.

The Editorial Board

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