Constitution put to test during martial law

Ukrainian article of the week published in the 22nd edition of the "What about Ukraine" newsletter on March 14th, 2024. The article was written by Anna Steshenko and Sonya Koshkina for LB.ua and was translated for n-ost by Tetiana Evloeva.

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Ukrainian law currently prohibits the country from holding any elections while martial law is in place. This issue is creating discussion as we near 31 March 2024, exactly five years since the last presidential election.

However, the Ukrainian Constitution doesn’t provide a clear definition of the continuity of power during martial law.

Some legal minds have argued that it might be advisable for members of the Ukrainian Parliament to draft a submission to the Constitutional Court of Ukraine (CCU) so the Court can provide the official interpretation of the articles in question.

While Russian spin doctors are playing on this topic on the eve of Putin’s mock election at the end of this week, it was further hyped by news published by ZN.ua that the President’s Office had allegedly drafted such a submission for the Constitutional Court of Ukraine (CCU) regarding the mandate of the Head of the State. There may be a possibility that the document will be submitted on behalf of MPs from Volodomyr Zelensky’s Servant of the People Party.

The ‘Servants’ themselves deny any participation in the process. However, they don’t reject the possibility altogether, saying that one of the governing party’s allies in parliament may initiate the submission. Those in opposition could also have enough signatures to submit such a document, such as resentful ‘ex-Servants’, including its former leader Dmytro Razumkov and his group of MPs.

The Ukrainian Parliament Commissioner for Human Rights (Ombudsman) Dmytro Lubinets is another potential actor with the right to a constitutional submission. But Lubinets declares that such action is unnecessary, as the legitimacy of both the Parliament and the President is not in doubt during this period of emergency.

Moreover, the Constitutional Court itself is in limbo. In late May the Court might find itself on the verge of only having a skeleton staff of judges to make a quorum.

What is going on? Will there be a submission? And will Ukraine have a full-blooded Constitutional Court?

LB.ua. tries to figure this out.

20 May 2024 will mark the end of the five years of President Volodymyr Zelensky in office, as defined by the Constitution. If it wasn’t for the full-scale war, the country would be electing a President on the last Sunday of the month, the 31 March.

However, Article 19 of the Law of Ukraine ‘On the legal regime of martial law’ stipulates that parliamentary, presidential and local elections are all prohibited under martial law.

At the same time, Article 83 of the Constitution clearly stipulates that “If the term of powers of the Verkhovna Rada [Parliament] of Ukraine expires while martial law or a state of emergency is in effect, its powers shall be extended until the day of the first meeting of the first session of the Verkhovna Rada of Ukraine elected after the cancellation of martial law or the state of emergency.”

However, the Constitution lacks clear instructions should the President’s powers expire while martial law is in effect. There’s only Article 108 stressing that “The President of Ukraine shall exercise his powers until the assumption of office by the newly elected President of Ukraine.”

Early termination can result from one of the following four causes:

1) resignation

2) inability to exercise their powers for medical reasons

3) removal from office by impeachment

4) death

And, according to the Constitution's Article 112, in the event of early termination of the Powers of the President, the Chairman of the Verkhovna Rada of Ukraine will assume the duties of head of state.

The Constitution doesn’t provide a clear definition on the continuity of power during martial law. Opinions were voiced that it might be advisable to draft a submission to the Constitutional Court of Ukraine (CCU) so that the Court can provide the official interpretation of the articles in question. In particular, in order to put a stop to speculation spread by Russian propaganda that “after the March elections in the Russian Federation, Putin will remain a legitimate President, while in Ukraine things will be a lot more ambiguous.” The Main Directorate of Intelligence of Ukraine already pinpointed this message as a part of the greater scheme of the Russian enemy’s special operation ‘Maidan v.3.0.’ which aims to destabilise Ukraine.

Speaking with a journalist from Fox News in late February, the President was directly asked a question about “cancelling the elections”.

Volodymyr Zelensky replied that should the election take place, he would certainly win. However, “nobody [has] cancelled any elections. The law states that no elections can be held while martial law is in effect, period. We have a martial law in place. It isn’t me adopting some new legislation, it’s the Law of Ukraine that has been around from the very beginning, and nobody ever overturned it.”

Is there a draft submission to the CCU?

According to ZN.ua sources, the President’s Office drafted an appeal - called a submission - to the CCU on 27 February, which requires an official interpretation from the Court on a point of law in the constitution. This request could be an attempt to put the matter of the President’s legitimacy to rest. However, this comes with a risk to the current head of state. The office was unsure whether they should submit the document, as they were uncertain that the CCU’s ruling would be “the one that they needed”. Another possible option would be to submit the documents on behalf of Zelensky’s Servant of the People party.

The Constitution stipulates that such requests can be submitted by:

— the President of Ukraine

— no fewer than forty-five MPs of Ukraine

— the Supreme Court of Ukraine

— Verkhovna Rada’s Commissioner for Human Rights (Ombudsman)

— the Verkhovna Rada of the Autonomous Republic of Crimea

LB.ua sources in the President’s Office neither confirmed nor denied drafting such a submission, and flatly refused to comment on the matter. Serhii Dembrovsky, the President’s representative in the CCU, also ignored the question.

Ombudsman Dmytro Lubinets, on the other hand, believes that “there’s no need for a ruling from the CCU regarding the President’s mandate, as the matter is already covered by the current legislation. The President performs his duties under martial law until a new election is called.”

Lubinets denies that the powers of the current Guarantor of the Constitution - the President himself - expire on 20 May, as paragraph 1 or Article 10 and paragraph 3 of Article 11 of the Law of Ukraine ‘On the Legal Regime of Martial Law’ directly prohibits to termination of the authority of the Verkhovna Rada, the Human Rights Ombudsman to the Verkhovna Rada, the Verkhovna Rada of the Autonomous Republic of Crimea, Ministries, other Central and Local State Executive Organisations, Local Self Government, as well as the Courts, the Public Prosecutor’s Office and State Investigation and Prosecution Organs while the martial law is in effect.

The Constitution has a provision regarding the continuity of power, which applies to all higher authority institutions.

“The Constitutional provisions on the President’s mandate don’t say anything about martial law, but that doesn’t mean that the Constitution has a loophole,” stresses the Ombudsman. “It all boils down to the principle of continuity of power… the Constitution stipulates for exceptional cases when the powers of the president can be terminated [in the four cases listed earlier]. It doesn’t stipulate any additional conditions like when the President’s five-year term in office is over.”

“As for the Law of Ukraine ‘On the Legal Regime of Martial Law’, Ukraine has the presumption of constitutional conformity in place, stipulating that statutes enacted by the legislature are constitutional unless the Constitutional Court rules otherwise. Thus, the provision that the President’s powers are extended for the period when martial law is in place is not unconstitutional,” adds the Ombudsman.

What are the ‘Servants’ up to?

Evheniia Kravchuk, a member of the Political Council of the Servants of the People party, assures LB.ua that there was no talk of appealing to the Constitutional Court on their behalf.

“We never discussed it in the Party, and never even thought about it, to be honest,” says Kravchuk. “It wasn’t necessary, because Article 108 of the Constitution clearly states that the current President stays in his office until a new President is inaugurated. There’s an Article on the continuity of power and the Verkhovna Rada, which covers every public institution and can indeed be applied to the President of Ukraine.”

Another high-standing ‘Servant’ confirmed off the record that currently “there is no such action [to appeal to the Constitutional Court]. If there has to be a submission, it would make sense that someone other than us initiated it. Say, one of our allied parties such as Trust (Dovira).”

Trust consists of 19 MPs, and it takes 45 to initiate such an appeal to the Court. One of the party’s MPs, Volodymyr Areshonkov, says: “We, specifically, aren’t preparing anything and won’t be doing that.”

Taras Batenko, leader of the party, For the Future (Za Maibutnie) (which consists of 17 MPs) can also be considered another ally of the ‘Servant of the People’ as the two frequently vote together. He replies, that “the group wasn’t preparing anything like that”, which was further confirmed by his colleague, MP Ihor Palytsia: “We believe that the current President will be legitimate until the martial law is over. After that, we can and should hold elections,” he writes to LB.ua.

The group of MPs named For Life and Peace (Za Zhyttia i Myr’) (consists of 22 MPs), one of the factions of the former Opposition Platform — For Life (OPZZh) party that was banned for its pro-Russian stance, also usually lends its votes to the ‘Servants’. The group informed us through its members that they weren’t preparing the appeal either.

Another group of former members of the OPZZh, Restoration of Ukraine (Vidnovlennia Ukrayiny) (consists of 17 MPs) also isn’t drafting any submissions.

Vadym Ivchenko, an MP from the core party of the former Yulia Tymoshenko bloc, Motherland (Batkivshchyna) (consisting of 24 MPs) also assures us that this political force isn’t drafting any submissions to the Constitutional Court.

“It wasn’t even on the table,” Ivchenko stresses to LB.ua. “The opposition shouldn’t initiate such documents, otherwise we will be accused of rocking the boat. It has to be the authority in question so that its legitimacy can be confirmed. As of now, they just refer to the Article of the Constitution that stipulates that the President holds his office until the next President is inaugurated. Besides, the Law of Ukraine ‘On the Legal Regime of Martial Law’ specifically prohibits calling any election. Which means, the President stays in office until a new one is elected — or until he is himself re-elected.”

Oleksandr Honcharenko, an MP from the European Solidarity party (which has 27 MPs) states that such stipulation wasn’t on the table for his party: “We never signed any submissions, as of this moment. I don’t know what will come next. My personal opinion is there’s no question as to the legitimacy of the Ukrainian authorities, as we have the principle of continuity of power stipulated in the Constitution… I’m not the head of my party, so it’s hard to tell what the plan is. I’m telling you as it is, in earnest.”

Yaroslav Zhelezniak, an MP from pro-European party Voice (Holos) (with 20 MPs), told us point blank that their members will not be signing such a submission.

The former Parliamentary Speaker and current head of interfactional union Smart Politicy, Dmytro Razumkov, was brief: “We haven’t discussed that [possibility] yet.”

CCU in limbo

LB.ua’s sources in the Parliament say there were talks on drafting a submission to the CCU a year ago, however, it never went beyond rumours. After all, the submission is appropriate only when there’s some certainty as to what the ruling regarding the legitimacy of the President will be.

Today, the Constitutional Court has 13 judges (out of 18 positions). Two vacancies are yet to be filled by the Congress of Judges, and another three by the Verkhovna Rada. The quorum for decision-making is ten judges for a regular case and 12 judges for rulings regarding the CCU’s Regulations or the resignation of a CCU judge. Last week, the President signed a Decree initiating the establishment of an interview panel for selecting candidates for the CCU judge positions.

However, LB.ua’s sources in the highest realms of power argue that this was not an attempt to reshape the CCU to the President’s liking, as he would, in any case, expect to gain a positive ruling in a hypothetical submission regarding his legitimacy. Under the current legislation, the competitive selection under the President’s quota begins at least 90 days before the current judge’s commission expires. It’s worth adding that, on 29 May 2024 the term of the current acting Chairman of the CCU, Serhii Holovvatyi, will expire. This increases the number of vacant seats in the Court from five to six, making the issue of quorum even more pressing. A similar issue has already occurred in 2022, during the hearing at the Great Chamber of two submissions from groups of MPs regarding the Law on the land market, and the Land Code. At least 12 judges had to be present in such hearings.

On the quorum and the hypothetical submission regarding the President’s legitimacy, Olha Sovhyria, one of the CCU judges, tells LB.ua that “we don’t comment on these issues”.

It may be too late to file such a submission. In peacetime, the Parliament has to call for a presidential election 100 days in advance of the election date, which would have been at the end of 2023. This could have been the moment when it would have been reasonable to file the submission to the CCU, according to Andrii Mahera, a lawyer and former chairman of the Central Electoral Commission.

Mahera believes that, as of today, the expediency of such a submission is debatable. Furthermore, the Constitution clearly states that the Verkhovna Rada of Ukraine expires while martial law or a state of emergency is in effect, its powers shall be extended until the day of the first meeting of the first session of the newly elected Parliament.

“The Constitution is not a parrot repeating the same thing over and over again,” says Mahera. “Besides, we shouldn’t render absolute that the President’s term in office can only be five years sharp, as defined by Article 103 of the Constitution. After all, the provisions of the Constitution were drafted in times when we didn’t have a martial law in effect.”

Moreover, he reminds us that President Leonid Kuchma was in office for five years and three months during his first term, and five years and almost two months during his second term (in total from 1994-2005).

“That was because the elections of the next President were still ongoing, the next President wasn’t yet sworn into office, and so forth,” he adds. “President Viktor Yushchenko also served for five years and one month. I mean, it’s nothing new.”