Although there were no constitutional grounds for shortening the presidential term, the new government was established in accordance with Ukrainian law. What is most important in all of this is the sovereignty of the Ukrainian people, write Polish and Ukrainian lawyers.
The Ukrainian revolution began inconspicuously. No one ever thought that Viktor Yanukovych’s refusal to sign the Association Agreement with the European Union would lead to a change in the head of state. That certainly never crossed the President’s mind. But this is not the first time in the history of Poland’s eastern neighbor that the people have taken the situation into their own hands. This time, it’s under the banner of Maidan to build a better future for their country.
Regardless of the significance of the changes in a geopolitical context, it is also important to look into the legal aspects of the actual turning point. Important questions arise which are growing in importance after former President Viktor Yanukovych’s press conference on February 28 [and March 11]. On the one hand, he asserts that he is still the President of Ukraine and continues to perform his duties; on the other, the Ukrainian Parliament has taken action with regard to the head of state. We would like to consider, therefore, the legitimacy of the old and new Government.
The starting point for our assessment must be the Constitution of Ukraine of June 26, 1996, which came into force during the presidency of Leonid Kuchma and, in the spirit of the times, is the foundation for the presidential system. The President’s powers include presenting a candidate for Prime Minister for approval by Parliament (the Verkhovna Rada), the appointment and removal of Ministers, and the nomination of candidates for the Prosecutor-General, also for approval by Parliament. In a nutshell, the Constitution under Leonid Kuchma established the framework for governance in the country.
Strictly speaking, with the “orange” winds of change, and prospects for Viktor Yushchenko to become President in 2004, the Constitution of Ukraine was amended. The Parliament at the time did not wish to delegate too much in terms of responsibilities to Yushchenko. The constitutional amendments of December 8, 2004 thus considerably reduced presidential powers and represented a complete about-face, turning Ukraine into a de jure parliamentary republic. For example, under the new constitution, the President doesn’t appoint the Prime Minister outright but rather submits a candidate for Parliament’s consideration. The resulting parliamentary-presidential system of governance could certainly have worked well had the President and Prime Minister belonged to the same party. However, during Yushchenko’s term, it became impossible for the President and Prime Minister to govern effectively as the Prime Minister was Yushchenko’s political adversary, Yulia Tymoshenko. As an aside, it took Yushchenko a full week to get access to the gas contracts Tymoshenko was signing with Moscow.
The three tenors of Maidan
Shortly after the 2010 presidential election, the Constitutional Court began to intervene. The court declared, on September 30, 2010, the 2004 amendments to the Constitution unconstitutional. This was justified by the deficiency of previously carried out studies of political reform. This decision returned to the presidency almost all of the powers enjoyed by Yanukovych’s predecessor, Leonid Kuchma.
It was his broad presidential powers that enabled Yanukovych to refuse to sign the association agreement with the EU in November 2013. At this point, the Maidan became a permanent fixture in the media, and events unfolded quickly, with the victims of prolific sharpshooters soon joining the ranks of the “Heavenly Hundred.”
An agreement to settle the crisis was signed on February 21, 2014, between incumbent President Yanukovych and the “three tenors” of Maidan: Arseniy Yatsenyuk, Vitaliy Klitschko, and Oleh Tiahnybok. This agreement required that, within 48 hours, a special law be adopted, signed and brought into effect to allow for a return to Ukraine’s 2004 Constitution. It also called for the establishment of a government of national unity, constitutional reforms to balance the powers of the President, the government and Parliament, and early presidential elections, with references to Parliament adopting a third amnesty and investigations into the acts of violence [to be conducted under the joint monitoring of the authorities, the opposition and the Council of Europe]. The agreement was signed by President Yanukovych and the three leaders of the opposition in the presence of foreign ministers of the so-called Weimar Triangle [Poland, Germany and France] and a representative of the Russian Federation.
Are the absentees wrong?
Not long afterwards, Yanukovych disappeared. There were speculations that he was in Kharkiv, Donetsk, or Crimea and the Russian Federation. Regardless, he did not sign the decision adopted by Parliament [as required by the February 21 agreement]. Parliament, however, had resumed on February 22 and had begun the process of stabilizing the situation in the country. The Parliament’s most fateful decisions proved to be its resolutions on the return to the 2004 Constitution and the withdrawal of the President of Ukraine. Both were published the next day in Holos Ukrainy [Voice of Ukraine, the official publication of the Ukrainian Parliament.
Parliament’s first resolution confirmed that the Constitution of Ukraine is an act of power of the Ukrainian people, pointed to the exclusive competence of the Parliament to amend the Constitution, and referred to the report of Venice Commission [of the Council of Europe] on the constitutional situation in Ukraine, dated December 20, 2010. With this, Parliament reverted to to the Constitution of Ukraine of 2004.
The second resolution, concerning the “self-withdrawal” of the President, was adopted the same day. Parliament considered the fact that Yanukovych did not accept the first resolution [by being absent despite his duties in this respect] to mean that he had withdrawn himself from the exercise of his constitutional powers. This, in the face of what was unfolding at Maidan, threatened the national sovereignty and territorial integrity of Ukraine. Therefore, emphasizing 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 any duties.”
Oleksandr Turchynov, elected Chairman of the Parliament, became the person entitled to discharge the duties of the president while the President was unable to perform his functions. Turchynov signed the amendments to the Constitution. Parliament also designated May 25, 2014 as the date for pre-term presidential elections.
Parliament’s resolution on the self-withdrawal of Yanukovych as President of Ukraine was adopted by a majority of 328 of 450 votes, with none against and no abstentions. In fact, 36 votes in favour of the resolution on self-withdrawal were from the President’s own party, the Party of Regions.
Who rules the country, the nation or the President?
A legal assessment of the resolutions adopted by Parliament becomes quite essential in establishing the legitimacy of the current government. At this point, we need to look at Article 108 of the Constitution, which sets out four instances for the early termination of the authority of the President: resignation, impeachment, death, and an inability to continue due to health reasons. None of these occurred.
However, there is a flip side – namely, Article 5 of the Constitution, which states that “the sovereign is the Ukrainian people who exercise authority either directly or through elected representatives”. This provision 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.”
This provision must be viewed against the assertions by Viktor Yanukovych during a press conference in Rostov-on-Don, Russian Federation [on February 28 and March 11], when he stated that he remains the lawful President of Ukraine, that the impeachment procedure was not carried out effectively, and that pre-term presidential elections are illegitimate.
Was the change of government in Ukraine lawful?
Yes. It seems that, despite the indubitable shortcomings of the resolution on the removal of Yanukovych from power, there needs to be a way to give meaning to the constitutional principle of the sovereignty of the Ukrainian nation.
It remains to be seen who, from a legal point of view, Viktor Yanukovych actually is if not the President of Ukraine. In the search for answers, we should not forget that revolutions often make little of existing laws and enforce their own bloody laws. The task of the legislature is to bring order into this situation.
By Alexander Pronkiewicz, a lawyer and managing partner of Pronkiewicz Law Firm, and Oleh Krykavskiy, a lawyer in Kyiv
Translation by Olena Kadaiska, edited by Alan J. Beckett and Lesia Stangret