If dismissed, then make it constitutional
The possibility of terminating the powers of the present government following the Presidential elections was actively discussed long before the official announcement of their results and has continued to be since.
The future fate of the government will be decided by parliament in the near future. The authors stress that in order that any decision does not lead to political confrontation, it must comply with the Constitution. They note dryly that experience shows that it is relatively easy to dismiss a government – much harder to do it constitutionally. They say that over the last five years there were three cases where the constitutionality of such dismissals can be questioned.
The first case: the dismissal of Yanukovych’s government (December 2004)
This came at the height of political confrontation between the second round of voting in the Presidential elections and the rerun.
On 1 December 2004 the Verkhovna Rada passed a “Resolution on stabilization of the political and socio-economic situation in Ukraine and prevention of anti-constitutional actions and demonstrations of separatism which threaten the sovereignty and territorial integrity of Ukraine.”
This included in Item 7 the revoking of approval for the government’s action plan from March 2004 this leading, in accordance with Articles 87 and 115 § 4 of the Constitution, to a vote of no confidence in the Cabinet of Ministers this leading to the latter’s resignation.
At the end of 2004 a parliamentary majority viewed the dismissal of the government as a necessary measures aimed at stabilizing the political situation. It may have been justified within the context of political expediency however this does not remove the question of its constitutionality.
Article 87 § 2 of the Constitution imposes restrictions on the use of a vote of no confidence, these being important for ensuring political stability. One restriction is that the government’s powers cannot be questioned for a year after their action plan is approved. The Constitution does not specify the type of parliamentary act which approves the government programme. Accordingly, parliament can revoke its previous decision approving the programme and in this way overcome the government’s “immunity”, as the Verkhovna Rada did in this case. Since Yanukovych’s government’s action plan had been approved on 16 March 2004, the issue of the government’s competence could only, according to the Constitution, been raised after 16 March 2005. The equivocal nature of the decision on 1 December 2004 was not however challenged and came into force.
The authors state that there therefore remains no unequivocal answer as to whether a government can re-affirm their action plan, extending the force of the constitutional guarantee; whether parliament can cancel a prior decision to affirm such a plan, thus removing the government’s “immunity”, and generally whether a government is legitimate if it acts without a programme approved by parliament.
The second case: the dismissal of Tymoshenko’s government (September 2005)
On 8 September 2005 President Yushchenko issued a Decree on terminating the powers of the Prime Minister and dismissing the Cabinet of Ministers. The Decree also appointed Yury Yekhanurov as Acting Prime Minister.
The last point for some reason did not attract the necessary attention although it is this which raises questions about constitutionality.
Item 9 of Article 106 of the Constitution before the changes made in December 2004, which the President refers to, envisage the President’s power to terminate the powers of the Prime Minister which resulted in the dismissal of the entire Cabinet of Ministers. However the Constitution said nothing about his right to appoint an acting prime minister. According to the “old” version of Article 115 § 5, the Cabinet of Ministers whose resignation was accepted by the President continued to carry out their duties until a newly formed Cabinet of Ministers took over.
One can assume that the Prime Minister, as member of the Cabinet of Ministers, should continue carrying out her / his duties until a successor is appointed, or that the First Deputy Prime Minister takes over. However it is unequivocal that the President did not have the authority to appoint an acting prime minister, and indeed there is nothing about such a position in the Constitution.
The Presidential Decree of 8 September 2005 was not reviewed by the Constitutional Court.
It should be noted that the issue of who takes over the powers of a member of the Cabinet of Ministers in the case of his resignation / dismissal has not been finally resolved.
There are three possible answers: firstly, an acting member of the Cabinet of Ministers is appointed at the same time as the decision on dismissal is taken; secondly, the minister or Prime Minister dismissed continues to carry out his or her duties until a successor is appointed; thirdly, the powers go to the person’s deputy.
Article 115 § 2 of the current version of the Constitution states that “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”. The question arises of what happens if the government has resigned as the result of a parliamentary vote of no confidence.
The third case: the dismissal of Yekhanurov’s government (January 2006)
The Verkhovna Rada Resolution “On the dismissal of the Prime Minister and members of the Cabinet of Ministers” from 10 January 2006, which formalized a dismissal which did not actually take place is an example of an ill-considered decision taken in the interests of ephemeral political expediency. Six months later, on 26 July 2006, parliament cancelled this Resolution.
We would note that the Resolution was passed under the post-constitutional changes Constitution [the changes of December 2004 only came into force from 1 January 2006 – translator]. The new version gives parliament a new power, this being to decide whether to dismiss the government (Item 12 of Article 85) while retaining the old option of passing a vote of no confidence (Article 87).
The norms of Article 115 of the Constitution show that a decision on dismissal and the passing of a vote of no confidence are in essence different constitutional procedures despite having the same political consequences – the cessation of the powers of the government. The first, for example, can follow the government’s own resignation. A resolution of no confidence envisages observance of a number of formalities set out in the Constitution and Regulations (the question must be raised by no less than one third of the constitutional makeup of parliament, the session on the vote of no confidence must be no earlier than 5 days after it’s submitted, and no later than 10 days, the Cabinet of Ministers must be given a change to express their point of view, the holding of the vote).
In the case with Yekhanurov’s government, parliament could not pass a decision on its dismissal since the government had not resigned, while the Resolution of 10 January was definitely not a resolution of no confidence since it had another name, and mainly was passed without observance of the relevant procedure. The legal nature of this Resolution is thus unclear.
These decisions regarding the “removal” of a government from power are telling. Their failings should be borne in mind by the Verkhovna Rada so that in the future any cessation of the powers of the Cabinet of Ministers is in full accordance with the Constitution.
Slightly abridged from the text by Oleksandr Yarmysh, Doctor of Law and Alina Chervyatsova, PhD in Law