Although there was no constitutional ground to shorten the presidential term, a new government was set up under the law. The biggest importance is given to the sovereignty of the Ukrainian people – write Polish and Ukrainian lawyers.
Ukrainian revolution began inconspicuously. No one could even think that Viktor Yanukovych’s refusal to sign association agreement with the European Union will lead to change of the Head of the Office of the President of Ukraine in Kyiv. Certainly, that couldn’t come to President’s mind too. However, not for the first time in the history Polish eastern neighbors settled down to governing the situation – this time under the banner of EuroMaydan – to create the future of their country.
Regardless of the significance of changes in the geopolitical context it is also important to look into the legal aspects of an actual turning point. The important questions rise, which particularly are gaining in importance after (former?) President’s (Viktor Yanukovych) press-conference held on February 28. On the one hand, he asserts he is still in charge of the Office of President of Ukraine and performs his duties, on the other hand – the Supreme Council takes action as the head of state. We would like to consider, therefore, the legitimacy of the “new-old” state authority.
The starting point for our consideration must be the Constitution of Ukraine of June 26, 1996, which came into force upon the presidency of Leonid Kuchma and – in the spirit of the times – the foundation of the presidential system. The scope of the president’s prerogatives should include presenting a candidate for Prime Minister, who had to gain acceptance of unicameral Supreme Council – the Verkhovna Rada -, the appointment of ministers and their removal or appointment of candidates for the position of Attorney General (who also had to be approved by the Supreme Council). In a nutshell – the signature of Leonid Kuchma determined the system of the instance of authority for normal state’s functioning.
Strictly speaking, with the “orange” wind of change Viktor Yushchenko had a prospect of leading the President’s office, what resulted in the amendments to the Constitution of Ukraine. The political composition of the Supreme Council did not think of delegating too wide responsibilities to Yushchenko. As a result of the constitutional amendments since December 8, 2004 presidential prerogatives had far-reaching restrictions and Ukraine made systemic volte-face, becoming de jure the parliamentary republic; for example, a candidate for Prime Minister was to be appointed by the parliamentary coalition, which indicated the President whom he shall submit to the parliamentary confirmation for this position. Presidential prerogatives were severely limited and the members of the Cabinet of Ministers were appointed only by the President himself. Implemented parliamentary-presidential system of governance certainly would work well in case if the President and the Prime Minister belong to one political party. However, during the presidency of Yushchenko, while holding the position of the Head of the Office of Prime Ministers by Yulia Tymoshenko, which is by political adversaries, there could be no effective exercise of power. On the sidelines, you can say that during the signing contracts for the supply of gas by Yulia Tymoshenko in Moscow, President Yushchenko for over a week could not insist on access to their content.
Three tenors from Maydan
Shortly after the election for the Presidential Office Ukrainian Constitutional Court took legal interference. Under its verdict since September 30, 2010, which concerned the conflict with the Constitution – the amendments to the Constitution of 2004 – have been declared unconstitutional. This was justified by the deficiency of previous effectuated studies of political reform.
All in all, as a result of decision of the Constitutional Court, Viktor Yanukovych obtained almost the same presidential powers which Leonid Kuchma had. In such legal status in November 2013, during the Eastern Partnership Summit, he refused to sign an association agreement with the European Union. At this point, the word “EuroMaydan” permanently appeared in the media, the course of events precipitated and soon the victims of prolific sharpshooters were included in the list of “Heavenly Hundred”.
The peace agreement was signed on February 21, 2014, between incumbent President Yanukovych and the “three tenors” of “EuroMaydan” (Arseniy Yatsenyuk, Vitaliy Klitschko, Oleh Tiahnybok).
The compromise included within 48 hours the acceptance of a special law for returning the Constitution of 2004 and the establishment of a Government of National Unity; moreover, the initiation of Constitutional reform and holding, on the basis of the newly adopted Constitution, presidential elections. It was also postulated to carry out the investigation of past acts of violence or adoption the amnesty by Supreme Council. Signing an agreement with the participation of foreign ministers of so-called Weimar Triangle and in the presence of a representative of the Russian Federation had to ensure its feasibility.
Are absentees wrong?
Meanwhile, presence of Viktor Yanukovych, after a while, faded away. It was speculated about the presence of the President in Kharkiv, Donetsk and Crimean peninsula or in the territory of the Russian Federation. Anyway, he did not approve documents adopted by the Supreme Council, which, in contrast, has resumed work on February 22 and began adoption of resolutions aimed at stabilizing the situation in the country. The most fateful proved to be two resolutions: on the return to the Constitution of 2004, and withdrawal of the President of Ukraine, both were published the next day in the official publication of the Supreme Council – Voice of Ukraine No. 34.
The first resolution of the Supreme Council confirmed that the Constitution of Ukraine is an act of power of the Ukrainian people, pointed to the exclusive competence of the Supreme Council for inserting the amendment to the Constitution and referred to the report of Venice Commission “of the constitutional situation in Ukraine” of December 20, 2010 and finally decided to return to the Constitution of Ukraine of 2004.
On the same day the second resolution was adopted – on self-withdrawal of the President of Ukraine from the position. The Supreme Council considered that due to non-acceptance of the first of the resolutions the President Yanukovych withdrew himself from the exercise of constitutional powers. This, in the face of events at EuroMaydan, threatens national sovereignty and territorial integrity of Ukraine. Therefore, emphasizing on the sovereign will of the Ukrainian people, the Council stated that “the President of Ukraine Viktor Yanukovych in an unconstitutional way withdrew himself from the exercise of constitutional powers and thus does not perform duties”. Oleksandr Turchynow was elected a chairman of the Supreme Council and as a person entitled to duties of the Head of state while the President is unable to perform his functions. On behalf of this he signed the amendments inserted to the Constitution.
Consequently, the date for pre-term presidential elections was set on May 25, 2014. Resolution on the self-withdrawal of Yanukovych as President of Ukraine was adopted by a majority of 328 votes (out of 450 MPs), with no votes against and no abstentions.Surprisingly, 36 votes “for” Yanukovych’s self-withdrawal were from pro-presidential Party of Regions.
Who rules the country, the nation or the President?
Estimation of the legal validity of the adopted resolution is fundamental for estimation of the legitimacy of the current Government in Ukraine. At this point it is needed to cite article 108 of the Ukrainian Constitution, which states that the term of appointment of the President is considered pre-time in four cases: death, resignation, inability to continue office due to state of health or as a result of removal from office due to impeachment. None of these cases occurred.
However, there is a flip side also, namely, article 5 of the Constitution of Ukraine which states “the sovereign is the Ukrainian people who exercise authority either directly or through elected representatives”. This regulation also provides that: “The Ukrainian people are the only subject eligible to adopt and change the constitutional order, a right which cannot be usurped either by the authorities or by the guardians of these organs.”
Cited above legal regulation must now be contrasted with the assertions raised by Viktor Yanukovych during a press conference in Rostov-on-Don, Russian Federation. He stated that the remains lawful President of Ukraine, the impeachment procedure was not carried out effectively and pre-term presidential elections areillegitimate.
Was the change of government in Ukraine lawful?
Yes. It seems that despite the indubitable shortcomings of resolution on the removal of Yanukovych from power,a matter of the utmost importance should be given to constitutional principle of the sovereignty of the Ukrainian nation.
It remains to be seen, who from a legal point of view (if not the President of Ukraine) Viktor Yanukovych is. Searching for answers, we should not forget that revolutions often take for nothing laws and govern their own sanguinary laws. The task of the legislature is to ameliorate the current situation.
Alexander Pronkiewicz – lawyer, managing partner of Pronkiewicz lawyer’s office
Oleh Krykavskyy – lawyer from Kyiv.
Translation from Polish by Olena Kadaiska
Original of the article in Polish: http://www.rp.pl/artykul/1091269-Janukowycza-odsunieto-legalnie.html?p=1