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15.04.2007 | Fedir Venislavsky

A constitutional law analysis of the Presidential Decree of 2 April 2007 on dissolving parliament

   

President Yushchenko’s Decree No. 264/2007 “On the early termination of the powers of the Verkhovna Rada of Ukraine” has led to a whole range of statements both from politicians and from lawyers (including the author of this analysis) regarding the lack of compliance of the Decree with Article 90 of the Constitution and, consequently, of its being unconstitutional. An overview of publications and statements in the media also suggests that the vast majority of politicians and legal experts believe the Decree to be unconstitutional.

Undoubtedly the public, politicians and experts have the right to freely express their position and give assessments of a legal document of such prominence. However, given the lack of unanimity in assessing the content of the Decree, categorical assertions that it is clearly unconstitutional are unacceptable. This can, after all, be considered on the one hand as pressure on the Constitutional Court which is the only body empowered by the Constitution to judge the constitutionality of the President’s legal acts. On the other hand no warnings or comments about the content of the Head of State’s Decree, or any doubts with regard to its constitutionality absolve anybody of the constitutional duty of obeying a Presidential Decree. Still less do they entitle public calls to not obey it. Until the Constitutional Court issues a judgment on the constitutionality of the President’s Decree of 2 April 2007, the Decree must be complied with on Ukrainian territory, in accordance with Article 106 § 3 of the Constitution. The fact that National Deputies have made a constitutional submission to the Constitutional Court regarding the Decree does not suspend its force.

In view of the above, we feel it necessary to carry out an impartial and purely formal constitutional law analysis of the President’s Decree specifically in terms of its compliance with the demands set out in the Constitution. This means predicting the possible arguments which could be given in the Constitutional Court judgment regarding its constitutionality.

1.  The Presidential Decree states that the grounds for its issue are the ignoring by the majority in the Verkhovna Rada of the constitutional requirements regarding the formation of a coalition of deputy factions manifesting itself in the developing unconstitutional practice of expanding on a mass scale its numbers through individual or group membership, in contravention of Article 83 of the Constitution.

An analysis of the provisions of Article 83 makes it possible to conclude that this assertion by the President in the Decree is fully justified. The legal basis and procedure for the formation, as well as for the termination of a coalition of deputy factions, are set down in Article 83 of the Constitution and in Chapter 12 of the Rules of Procedure of the Verkhovna Rada. According to Article 83 § 6 of the Constitution, “A coalition of deputy factions … shall be formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms”.

Pursuant to Article 61 § 1 of the Rules of Procedure of the Verkhovna Rada “A coalition of deputy factions (hereafter coalition) is a voluntary association of deputy factions which is formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms. A coalition is comprised of a majority of the National Deputies from the constitutional composition of the Verkhovna Rada”. A coalition is formed by deputy factions created in accordance with the procedure established by these Rules of Procedure” (Article 61 § 2).

These norms unequivocally demonstrate that the participants in the formation of coalitions of deputy factions are specifically deputy factions, and not individual National Deputies. At the same time, an analysis of the text of the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada between the factions of the Party of the Regions, the Socialist Party of Ukraine and the Communist Party of Ukraine from 7 July 2006 shows that besides the National Deputies belonging to these factions, the said Agreement was signed by individual National Deputies who belong to the factions of the political bloc “Nasha Ukraina” and the electoral bloc of Yulia Tymoshenko [BYuT].  Two National Deputies from “Nasha Ukraina” – O.A. Volkov and V.M. Zaplatynsky signed the Agreement on 7 July, while the National Deputy from  BYuT V.V. Zubyk on 10 July 2006.

In view of this, it is entirely logical to ask whether the procedure for the creation of a coalition of deputy factions in the Verkhovna Rada as set out in Article 83 of the Constitution was adhered to. In our view, two answers are possible.

1)  If the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada from 6 July 2007 between the subjects defined by the Main Law – the deputy factions of the Party of the Regions, the Socialist Party of Ukraine and the Communist Party of Ukraine, was also signed by unsuitable parties – National Deputies from the deputy faction of the bloc “Nasha Ukraina”, then it is only their signatures which should be declared invalid, and this can accordingly not in any way place in doubt the legitimacy of the Anti-crisis coalition as a whole. At the same time, in the given case one should take into consideration the requirements of Article 19 § 2 of the Constitution which states: “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”. In our view, this constitutional norm fully applies to deputy factions in the Verkhovna Rada as bodies of the Verkhovna Rada, as well as on National Deputies. Therefore the signing of a coalition agreement by individual deputies from the deputy factions of “Nasha Ukraina” can be considered an act in contravention of the Constitution of Ukraine.

2)  The legal fact of the signing of the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada from 7 July 2006 by at least two unsuitable parties - National Deputies from the deputy faction of the bloc “Nasha Ukraina”, implies the invalidation of the said Agreement as a whole. After all the signing of a coalition agreement by unsuitable parties is a direct and unequivocal violation of Article 83 § 6 of the Constitution. This means that on 7 July 2006, in the signing of the Agreement on the creation of an Anti-crisis coalition the procedure set down in Article 83 § 6 of the Constitution on creating a coalition of deputy factions in the Verkhovna Rada was violated. In other words a coalition of deputy factions was formed, however with an infringement of Article 83 of the Constitution of the Ukraine which is one of the grounds envisaged in Article 90 § 2.1 of the Constitution for the use by the President of his constitutional right to terminate the powers of the Verkhovna Rada ahead of term.

Article 90 § 2.1 of the Constitution states that “The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada in the following cases, if: 1) the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions in compliance with Article 83 of this Constitution within one month”. Analyzing this norm of the Main Law, one can conclude that the justification for its application by the President was the presence together of two necessary pre-requisites: 1) the formation within one month of a coalition of deputy factions in the Verkhovna Rada; and 2) the formation of a coalition of deputy factions in accordance with Article 83 of this Constitution. And as we have seen, the Anti-crisis coalition in the Verkhovna Rada was formed within one month however in violation of Article 83 of the Ukrainian Constitution.

The above gives grounds for asserting that from 7 July 2006 and up to the signing by President Yushchenko of Decree No. 264 “On the early termination of the powers of the Verkhovna Rada of Ukraine”, there was a reason envisaged by Article 90 § 2.1 of the Constitution for the President to terminate the authority of the Verkhovna Rada ahead of term.

It should here be noted that neither Article 90, nor Article 106 of the Constitution establish any time frame during which the President, given the presence of grounds for early dissolution of the Verkhovna Rada, may apply his constitutional right and terminate the authority of the Verkhovna Rada.

Nor does the Constitution make the said constitutional right of the President, enshrined in Article 90 § 2.1 of the Constitution dependent on his submission to the Verkhovna Rada of the candidate for Prime Minister proposed by the Anti-crisis coalition. Therefore, the potential references of the opponents to the fact that the President submitted the candidacy of Viktor Yanukovych, as proposed by the Anti-crisis coalition for the post of Prime Minister does not entail any legal consequences and cannot be taken into consideration when the Constitutional Court issues its judgment into this case.

One should also note another infringement during the process of creating the Anti-crisis coalition in the Verkhovna Rada on 7 July 2006. In accordance with Article 83 § 9 of the Constitution “The basis for the formation, organisation, operation, and termination of activities of coalition of deputy factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and Rules of Procedure of the Verkhovna Rada of Ukraine”.

Article 65 § 2 of the Rules of Procedure of the Verkhovna Rada states: “A deputy faction has the right at any time to leave the coalition, having notified the leaders of the other deputy factions in the coalition of this in writing no later than ten days before the date of leaving. During this period the deputy faction has the right at any right to withdraw its resignation in writing. If the deputy faction has not withdrawn its statement, at the first plenary session after the ten days has elapsed, the Speaker shall announce the withdrawal of the deputy faction from the coalition”.

Article 65 § 4 of the Rules of Procedure of the Verkhovna Rada stipulates that “Notification must be given by the Speaker no later than four days after the deputy faction has joined the coalition, withdrawn or been excluded from it,  or after the new composition of the coalition has prepared a new text of the coalition agreement. In the same period of time, this notification shall be published in the newspaper “Holos Ukrainy” [“Voice of Ukraine”], together with the personal composition of the deputy faction which has withdrawn or been excluded from the coalition, or the personal list of those who have been added to the coalition, as well as the new text of the coalition agreement.”

According to Article 66 § 2 of the same Rules of Procedure: “The functioning of the coalition is deemed to be terminated in cases envisaged in points 2 and 3 of paragraph one of this article from the moment of the official announcement of this by the Speaker at the plenary session. Notification of this termination shall be published in the newspaper “Holos Ukrainy” no later than four days after the official announcement of its termination”.

Analyzing the procedure for the creation of the Coalition of democratic forces and the circumstances of its termination, as well as the process for the formation of the Anti-crisis coalition in the Verkhovna Rada, one can conclude that there were significant infringements of the above-mentioned Rules of Procedure of the Verkhovna Rada. Firstly, the faction of the Socialist Party withdrew from the Coalition of democratic forces without notifying the leaders of the other factions who had signed the Agreement at least ten days in advance. Secondly, the same faction violated the time period for announcing their withdrawal from the Coalition of democratic forces at a parliamentary plenary session. In the third place, the same faction did not place a notification of their withdrawal in the newspaper “Holos Ukrainy” (no later than four days after the official announcement at the plenary session).

Only after consistent adherence to these requirements did the faction of the Socialist Party have the right at their session to consider whether to take part in the formation of another coalition and to pass the relevant decision following democratic procedure. In spite of the above-mentioned requirements set down in the Rules of Procedure of the Verkhovna Rada, representatives of the faction of the Socialist Party effectively announced simultaneously their withdrawal from the Coalition of democratic forces and their joining the Anti-crisis coalition, with this being unexpected for the other members of the Coalition of democratic forces. These infringements of the Rules of Procedure of the Verkhovna Rada thus give all grounds for considering this to have been yet another infringement in the procedure for the creation of the

Anti-crisis coalition

2.  It is also important to analyze the legitimacy of the reference by the President in his Decree of 2 April 2007 to Article 102 § 2 of the Constitution which states: “The President of Ukraine is the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens’ rights and freedoms”.  The declaration at constitutional level of the President’s role as guarantor of the observance of the Constitution of Ukraine entails a whole range of constitutional mechanisms enabling the President to exercise these functions. For example, according to Article 106 of the Constitution, such mechanisms include: a) the right to terminate the authority of the Verkhovna Rada in cases stipulated by the Constitution; b) the right to revoke acts of the Cabinet of Ministers of Ukraine on the ground of their non-compliance with the Constitution and simultaneously appeal to the Constitutional Court of Ukraine for the verification of the constitutionality of such acts; c) the right to revoke acts of the Council of Ministers of the Autonomous Republic of Crimea; d) the right to veto laws adopted by the Verkhovna Rada of Ukraine.

In addition, an effective means of guaranteeing observance of the Constitution is the President’s right stipulated in Article 150 of the Constitution to make constitutional submissions to the Constitutional Court to resolve whether laws and other legal acts of the Verkhovna Rada are in conformity with the Constitution.

However, since the grounds for the issue by the President of his Decree No. 264 of 2 April 2007 was the widespread practice of mass additions to the Anti-crisis coalition through individual or group membership, this violating Article 83 § 6 of the Constitution, it needs to be established what constitutional mechanisms the President had available to him in order to guarantee observance of the Constitution in the given case and to stop this unconstitutional  practice of both the coalition as a whole, and of individual National Deputies who declared that they were joining the coalition.

From a systematic analysis of the provisions of the Constitution one may conclude that the President has no other constitutionally envisaged possibilities for exercising his function as guarantor of the observance of the Constitution and reacting to the above-mentioned infringements by a coalition of deputy factions or by individual Deputies, than that of early termination of the authority of the Verkhovna Rada. He cannot approach the Constitutional Court for a judgment as to the constitutionality of the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada since this Agreement is not a legal act of parliament, and according to Article 150 of the Constitution, the Constitutional Court is not empowered to check its constitutionality. 

3.  Due to the fact that the President is his Decree No. 264 of 2 April 2007 dissolved parliament yet, despite the Decree, the Verkhovna Rada is continuing to work, we need also to analyze whether Ukraine’s parliament has been working legally since 2 April 2007, and whether the acts which it has passed have any legal force. Article 90 of the Constitution in the first paragraph stipulates a general rule, namely that: “The powers of the Verkhovna Rada of Ukraine shall be terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation”. Paragraph two states: “The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada”.  An analysis based on formal logic of the phrase “early termination of powers” enables us to conclude that in the given case what is referred to is the termination by the Verkhovna Rada of its activities in carrying out the constitutional powers enshrined in Article 85 of the Constitution from the moment when the President of Ukraine applied his constitutional right by issuing the relevant Decree. This means that if Article 90 § 1 of the Constitution established the general rule on the termination of powers of the Verkhovna Rada, then Article 2 establishes exceptions to this rule. The etymological meaning alone of the word “early” [literately “before term”] is “before the expiration of the established term”.

 In support of this position one can cite other norms of the Main Law regulating the procedure for carrying out the duties of a body where its powers have been terminated before they were due to expire. For example, Article 112 of the Constitution states that: “In the event of the pre-term termination of authority of the President of Ukraine in accordance with Articles 108, 109, 110 and 111 of this Constitution, the execution of duties of the President of Ukraine, for the period pending the elections and the assumption of office of the new President of Ukraine, is vested in the Prime Minister of Ukraine”. According to Article 115 § 5 of the Constitution: “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”.  Furthermore, Article 81 § 3 of the Constitution directly states that: “The powers of a National Deputy of Ukraine shall be terminated in case of early termination of powers of the Verkhovna Rada of Ukraine in compliance with the Constitution of Ukraine on the opening day of the first meeting of the Verkhovna Rada of Ukraine of the new convocation”. 

The Constitution thus contains a special norm in all cases when, after the early termination of the powers of any given State body, this body continues to carry out its duties until the newly formed body commences its work, or those duties are entrusted to another executive body or public official. In the case of early termination by the President of the powers of the Verkhovna Rada, there is no such special constitutional norm which makes it possible to conclude that the powers of the Verkhovna Rada ended on the day of the official publication by the President of his Decree “On the early termination of the powers of the Verkhovna Rada of Ukraine”. As a result of this, all acts passed by the Verkhovna Rada after 3 April 2007 do not have any legal force.

It is also worth pointing out that National Deputies of Ukraine continue to enjoy all their rights and guarantees as set down in the Constitution of Ukraine and the Law “On the status of a National Deputy of Ukraine”, with the exception of those which are directly connected with the powers of the Verkhovna Rada of Ukraine.

One should at the same time note that point 2 of the President’s Decree from 2 April 2007 is incorrect since the President of Ukraine cannot suggest that National Deputies continue to execute their authorities that are not directly connected with the authorities of the Verkhovna Rada. . In fact, regardless of whether or not this “suggestion” is made by the President, National Deputies continue to execute their authority on the basis of Article 81§ 3 of the Constitution.

4. The President’s designation of early parliamentary elections on 27 May 2007 is entirely in keeping with the requirements of the Constitution. According to Article 77 § 2 of the Constitution: “Special elections to the Verkhovna Rada of Ukraine are designated by the President of Ukraine and are held within sixty days from the day of the publication of the decision on the pre-term termination of authority of the Verkhovna Rada of Ukraine”. As well as this, Article 106 § 1.7 stipulates that the President designates special elections to the Verkhovna Rada of Ukraine within the terms established by this Constitution.

The procedure for holding snap elections of National Deputies is set out in Section XI of the Law “On the elections of National Deputies of Ukraine” from 7 July 2005. An analysis of the provisions of that Law shows that, provided the compliance as demanded by Article 106 § 3  of the Constitution with the provisions of the Decree of the President from 2 April by all parties, the snap elections can take place within the period of time established by the Constitution. It should, moreover, be noted that according to Article 8 § 2 of the Main Law: “The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it”. Any claims, therefore, that it is impossible to hold snap elections for the Verkhovna Rada in the time designated by the President in full compliance with the Constitution are entirely unjustified and unconvincing.

5.  All of the above makes it possible to draw one other conclusion which we believe to be important regarding legal assessments of President Yushchenko’s Decree No. 264/2007  from 2 April 2007 “On the early termination of the powers of the Verkhovna Rada of Ukraine” by the Verkhovna Rada, individual National Deputies and other politicians.

In point 6 of their Resolution No. 237 from 2 April 2007 “On preventing measures which threaten constitutional law and order, public peace and stability in Ukraine”, the Verkhovna Rada resolved “to draw the attention of the State authorities and bodies of local self-government, official print outlets and their officials and employees of the inevitability of legal liability for failure to adhere to Article 60 of the Constitution of Ukraine regarding the issuance or execution of a manifestly criminal ruling or order”. With regard to this, the question arises whether there are even any grounds for believing the said Presidential Decree to be manifestly criminal. In our view, the arguments presented in this analysis at least prevent us from asserting that the President in issuing the given Decree clearly exceeded his constitutional powers and in so doing committed a criminal act.

Since there are objective grounds in favour both of regarding the Presidential Decree No. 264 from 2 April 2007 as not being in compliance with the Constitution of Ukraine, and of suggesting that it fully complied with the Main Law of Ukraine, to view it as manifestly criminal, openly not obey it and publicly call on people not to comply with it is not only unwarranted, but in its turn criminal.

Determination of the compliance of the Presidential Decree with the Constitution of Ukraine is the exclusive prerogative of the single body of constitutional jurisdiction in Ukraine – the Constitutional Court and cannot be assumed by any other body of State power or other public official.

11 April 2007

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