Problems of Implementation of the Constitutional and Legal Status of the Verkhovna Rada of Ukraine in Relations with the President of Ukraine

Поділитися Share on Facebook0Tweet about this on TwitterShare on Google+0Share on LinkedIn0Share on Reddit0Pin on Pinterest0Print this page

The article analyzes the current problems of implementation of the constitutional and legal status of the Verkhovna Rada of Ukraine, which occur while performing the parliament’s functions in the relations with the Head of the state.
Key words: the parliament, the Head of the state, veto, impeachment.
Problem statement. The biggest problem of the Ukrainian state creation has always been the fact that almost every political force, which reached power, tried to change the Main Law of the state and therefore change the mechanism of interaction between supreme bodies of state power taking into account not the interests of the state and the nation, but the narrow party oligarchical needs. So, it is not surprising at all that for more than twenty years of independence, Ukraine has not found the model of the state governance that can defuse the constant conflicts in the triangle «the Verkhovna Rada – the President – the Cabinet of Ministers». That is why the analysis of the problems arising upon the implementation of the competence interrelations of the Ukrainian parliament and the Head of the state is the first and the most important step to build such model.

Analysis of the latest studies. Scope of the study is reflected in the works of such native scientists as V. Shapoval, R. Pavlenko, V. Telipko, H. Fedorenko, R. Martynyuk, A., A. Heorhitsa and others.

Objective of the study is to analyze the current problems of implementation of the constitutional and legal status of the Verkhovna Rada of Ukraine in relations with the President of Ukraine and the search for ways and means to overcome these problems.

Presentation of the main material of the study. One of the key functions of any parliament is lawmaking, which is why we consider it appropriate to consider the relations between the President and Parliament in this area.
It can be said that mechanism to ensure a formal balance of powers is generally resolved properly in the current Constitution of Ukraine. Another thing is that its insufficient detalization (in terms of legal culture and mentality of domestic politics) has caused possible violation of constitutionally established balance between the branches of power in favor of the President in practice. In particular, it is about the consequences of the absence of indication in Art. 94 of the Main Law what to do if the President, not using the veto in the terms set out in the article, but also not signing the law, will not return it to the Parliament.
The right of the Parliament to override the veto in such circumstances does not counterbalance the possible invasion of the President of Ukraine in the sphere of legislation in the form of veto. Indeed, in these circumstances, nothing (except, of course, morality) does not prevent the President of Ukraine not to sign laws for the unlimited time, with which he (she) fundamentally disagrees. To overcome the actual advantage of the President, incompatible with the principle of separation of powers, over the Parliament in legislation is only possible if to eliminate the source of such advantages. In this case, this would facilitate the introduction of a special procedure for the entry into force of the law to bypass the signature of the President of Ukraine in case of ignoring his (her) respective constitutional requirements. In our view, it is appropriate to apply to such laws, in case of delayed signing by the President, the same approach as to the laws adopted as a result of overriding the veto (cl. 4 of Art. 94 of the Constitution of Ukraine). [10; 149].
The scientists also point out that the Constitution of Ukraine does not provide the motive to return laws to the President of Ukraine to the Parliament [3, 28] that from a formal point of view means the possibility to reject to sign a law not only because of its unconstitutionality, but also for political reasons.
The Constitution of Ukraine does not explain which legal act may be used to execute the returning of the law by the Head of state for reconsideration. Most of the times, as the practice of veto shows, the legal form of the latter are the letters of recommendation of the President of Ukraine to the Verkhovna Rada of Ukraine grounding the need to change certain provisions of the law. The legal literature draws attention to the need to define legal form of the President’s return of laws for reconsideration at the law level, which have been vetoed [1; 17]. Some scientists propose to issue the veto of the President by decree of the Head of Ukraine, since the veto is an act of state and has significant legal consequences [6; 8].
Many disagreements between the Verkhovna Rada of Ukraine and the President of Ukraine also arise within the scope of the inaugural function of the Parliament. Of course, the key question here is associated with the formation of the Cabinet of Ministers of Ukraine and the appointment of the Prime Minister of Ukraine. There may be many conflict situations in the process of appointment of some officials concerned. In particular, if within one month the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions or the Verkhovna Rada of Ukraine will be unable to form the personal composition of the Government within sixty days after the resignation of the Cabinet of Ministers of Ukraine, the President of Ukraine, according to p. 2, Art. 90 of the Constitution of Ukraine, has the right to terminate powers of the Verkhovna Rada of Ukraine. However, Art. 90 of the Main Law contains limitations of early termination of powers of the Verkhovna Rada of Ukraine, namely in the last six months of the term of office of the Verkhovna Rada of Ukraine or the President of Ukraine, as well as Verkhovna Rada of Ukraine, elected by special election, has immunity from such actions for a period of 1 year. Thus, in any of these cases, the President of Ukraine has no right to prematurely terminate the powers of the parliament. In this case, the question arises: what should be the next steps of the President in relation to the Parliament and how will the Cabinet of Ministers of Ukraine function in future, if the Verkhovna Rada of Ukraine expresses distrust to it? These questions are not answered by the Main Law, so scientists propose to necessarily level provide alternatives for the President of Ukraine in this field at the constitutional. In particular, it concerns the formation of the Cabinet of Ministers and the Prime-Minister of Ukraine, if it is not done in a timely manner by the Verkhovna Rada of Ukraine or the possibility of dissolution of the Parliament by the President of Ukraine in case of exhaustion of opportunities to form the personal composition of the Cabinet of Ministers of Ukraine and approve the program and its activities in due time [5; 103].
It should be noted that a bright example in this respect is the Federal Republic of Germany, where despite some limited powers of the Head of the state, he often plays the role of a specific back-up tool of political system that is activated in a crisis and instability and has an opportunity to independantly take appropriate appointments, if the Parliament is unable to do so. Such back-up opportunities of the Head of the state may add some flexibility to the state mechanism and help overcome the political crisis.
In the process of election of the Prime Minister of Ukraine it is important to pay attention to the statement of cl. 9, Article 106 of the Constitution of Ukraine, which indicates that the President of Ukraine «makes the proposal for the coalition of parliamentary factions in the Verkhovna Rada of Ukraine, formed according to Article 83 of the Constitution of Ukraine, to submit the appointment of the Prime Minister of Ukraine by the Verkhovna Rada of Ukraine no later than the fifteenth day following the receipt of such a proposal». It is worth mentioning that the question remains open regarding the imperative nature of the rule that may lead to the violation of the fifteen-day term by the Head of the state to introduce submissions to the Verkhovna Rada of Ukraine on the candidacy of the Prime Minister and this will provoke breach of sixteen-day term (of course not by the will of the Parliament) by representative body to form the Cabinet of Ministers of Ukraine. As a result, the other constitutional provision will come into force, which will provide the right to the President of Ukraine, according to the cl. 2, Art. 90 of the Constitution of Ukraine, to terminate powers of the Verkhovna Rada of Ukraine. We consider it necessary to formulate the Provisions of the Constitution so that the submission of the candidate for the Head of the Government by the President of Ukraine to the Parliament PM’s candidature was the obligation, but not the right of the Head of the state.
It is also important to note that it would be useful if the Verkhovna Rada of Ukraine was not only obliged to form personal composition of the Government, but also would approve the Program of its activity, i.e. passing investiture of the Government. This is important especially due to the fact that this document:
1) is a kind of contract between the Government and the Parliament about their cooperation;
2) defines the main goals of the Cabinet of Ministers as a collegial body composed of both ministers, elected by Parliament by the submission of the Prime Minister and two ministers (Minister of Defense of Ukraine and Minister of Foreign Affairs of Ukraine) that are selected by the President Ukraine.
This Government formation procedure causes some multi-vector nature in its organization and activities. Especially in the case where the relations between the President and the Prime Minister are the relation of «coexistence» (in the case when the political affiliation of the President and the parliamentary majority does not match). In this case, mandatory approval of the Activity Program of the Government will allow to monitor the activities of ministers, mediated by instructions of the Head of the state in his (her) priorities, defense and foreign policy, and will allow for all the supreme government authorities to act with one voice, that is in consolidated and coordinated manner. Although for the period from 1998 to the present time, only five Governments were guided in their work by the Activity Programs of the Cabinet of Ministers of Ukraine, which were approved by the Resolutions of the Verkhovna Rada of Ukraine, it greatly increases the responsibility of the executive branch of government for its activities.
Concerning the appointment of other officials, the President of Ukraine today has no relation to the appointment of the Chairman of the Antimonopoly Committee of Ukraine, Chairman of the State Property Fund of Ukraine and Chairman of the State Committee for Television and Radio Broadcasting. The Draft Law, submitted by the President Poroshenko on June 26, 2014 to the Verkhovna Rada «On Amendments to the Constitution of Ukraine» (concerning the authority of state and local government) No. 4178 is a bright evidence of the fact that they still fail to redistribute the spheres of influence of the Parliament and the President, because cl. 92 p. 1, Art. 106 of the Constitution of Ukraine in this edition stipulates that the President of Ukraine appoints and dismisses the Head of the Antimonopoly Committee of Ukraine.
In addition, under this edition of the Constitution, the President will also dismiss in his sole discretion: Prosecutor General of Ukraine, Head of the Security Service of Ukraine, Head of the Foreign Intelligence Service of Ukraine, Head of the State Bureau of Investigation (cl. 11, 14, 141, 142 p. 1, Art. 106), which would mean a complete subordination of these state authorities to the President. Thus, contrary to the existing parliamentary form of government, the Draft Law «On Amendments to the Constitution of Ukraine» submitted by the President to the Verkhovna Rada by contrast represents a significant expansion of powers of the Head of the state, in particular by restricting the powers of the Parliament and the Government [2].
Also one of the stumbling blocks in relations between the President and the Parliament is the resignation of the Cabinet of Ministers of Ukraine. The current Constitution actually proclaims the principle of responsibility of the Government to the Head of state, but does not provide the mechanism of this responsibility, so the Head of the state has not received the right to influence the procedure for revocation of authorization of the Government. In it, the President of Ukraine participates only indirectly: he has the right to initiate consideration of this issue by the Verkhovna Rada of Ukraine. However, the new edition of the Constitution clearly stipulates that the resignation of the Government is solved by the Verkhovna Rada of Ukraine, but quite natural is the question concerning the dismissal of ministers appointed by the President of Ukraine. Logically, the right to their dismissal could belong to the President himself, the Prime Minister or a coalition of deputy factions. However, the Constitution of Ukraine does not indicate how this should happen. This legislative uncertainty at the time has become a source of conflict between the President of Ukraine, the Government and parliamentary majority [8].
Another equally problematic situation is the implementation of constitutional and legal responsibility of the President of Ukraine. The current Constitution only fragmentary defines the principles of such responsibility, and the procedure of use of impeachment to the Head of state. This procedure is quite complicated and is almost impossible in the real world.
However, the provision of responsibility of the President of Ukraine is important, as it is one of the measures maintaining the legitimacy of the government, so scientists have repeatedly drawn attention to the need for immediate normative regulation of mechanism for implementing the constitutional and legal responsibility to the Head of the state at the legislative level. In domestic legal practice, the procedure of impeachment must acquire as simple design as necessary to become real. [4; 106].
Impeachment is the most common form of political responsibility of the President, after which he (she) loses his (her) title and can be held legally liable as a private individual. The most common grounds for impeachment is violating the constitution and committing serious crimes. [7; 328]. According to Art. 111 of the Constitution of Ukraine, the President of Ukraine may be removed from office by the Parliament by impeachment, if he (she) commits treason or other crime. In our opinion, the legislator should adopt a separate law that would regulate the procedure of impeachment in the part of determining an exhaustive list of grounds to bring to justice the head of the state by impeachment, and which would make it impossible to introduce the occurrence of a political factor in this mechanism on the part of the Parliament.
It is clear that in the procedure of impeachment the Parliament cannot take judicial functions, since it would be going beyond its competence [9; 177]. However, the objective attitude to the President of Ukraine on the part of both the Constitutional Court and the Supreme Court in the procedure of impeachment is questioned [9; 177]. So, we consider it appropriate to form a special quasi-judicial body, whose jurisdiction would include the power to bring senior government authorities and their officials to responsibility, including constitutional and legal.
Since the legal regulation of impeachment does not allow the Verkhovna Rada of Ukraine, if needed, to implement it in practice through a series of fundamental gaps and legal incompleteness, we consider necessary to adopt law on impeachment, which would detail the discharge of the Head of the state from office.
Conclusions. Problems in the implementation of the Verkhovna Rada of Ukraine of its competence in relations with the President of Ukraine are primarily political in nature. This means that virtually all depends on whether the President of Ukraine has a support in the Parliament and whether he is not in confrontation to the coalition that was formed in the Verkhovna Rada of Ukraine. In the event that the President is the representative of the political party that has a constitutional majority in the Parliament, it largely smoothes disputes, which theoretically can arise between these bodies and together with the Cabinet of Ministers they act in harmony to achieve a common goal. In this case the question arises about the necessity to define the status of the opposition and provide it with real levers of control. If the President of Ukraine does not have sufficient support in parliament or of a coalition is unstable, the composition of the Government is the result of the great compromise; this is the reason that is the catalyst for the manifestation of the problems in the implementation of the Parliament of its competence with respect to the Head of the state.
The role of the President in foreign policy, defense and legislation is very important. But, it is significant, and in some cases even necessary, to use the President as the reserve of political capabilities in crisis situations, namely, to give him (her) an opportunity to make the appointment of the Government in a situation where the Verkhovna Rada of Ukraine cannot do it, and there is no possibilities for early termination of its authority or pursuant to a direct prohibition of the Constitution, or because of political expediency.
We also state the need to detail provisions of the Constitution of Ukraine through the introduction of signing laws accepted by the Parliament in the ordinary course of procedure (if the President does not sign and does not return them with reasonable comments) by the Chairman of the Verkhovna Rada of Ukraine.
Impeachment procedure of the Head of the state requires statutory regulation and to some extent reforming, as the one that exists now and is specified by the Constitution of Ukraine is not detailed enough and does not provide full objectivity in attitude to President on the part of the Constitutional and Supreme Court of Ukraine. And a liability of officials for their actions stems directly from the principle of responsibility for their actions to the public and is an important and necessary condition of democracy.


 

LITERATURE:

1. Holovatenko V. I. Legal Acts of the President of Ukraine: Legal Nature, Status, Functions / V. I. Holovatenko // Law of Ukraine. – 2004. – No. 3. – P. 14-18.
2. Koliukh V. V. Narrowing through Expansion: the Legal Status of the President of Ukraine within the Constitutional Changes. – [Digital resourse]. / V. V. Koliukh. – Retrieved from : http://www.viche.info/journal/4463.
3. Kopieichenkov V. V. Theoretical and Practical Issues of Constitution Interpretation / V. V. Kopieichenkov // Journal of the Academy of Sciences of Ukraine. – 1996. – No. 7. – P. 61-68.
4. Martyniuk R. S. Institute of Impeachment in Ukraine: Defects of Domestic Model / R. S. Martyniuk // Law of ukraine. – 2008. – No. 2. – P. 105-108.
5. Martyniuk R. S. The Principle of Separation of Powers in Modern Ukraine: Political and Legal Analysis. / R. S. Martyniuk. – Ostroh : Publishing house of the national University of Ostroh Academy 2007. – 328 p.
6. Mazur D. V. Acts of Lawmaking of the President in the States with a Mixed Form of Government (General Theoretical Aspect): Author’s abstract of the thesis for the degree of the Cand of Sc. (Law): spec. 12.00.01 / D. V. Mazur. – Kh., 2007. – 20 p.
7. Shemshuchenko Yu. S. Problems of Ukrainian Parliamentarism in Light of Constitutional Reform in Ukraine. / Yu. S. Shemshuchenko // Strategic Priorities – No. 2 (7). – 2008. – P. 99-104.
8. Soroka S. V. Mechanism Analysis of Interaction of the Verkhovna Rada of Ukraine and the Cabinet of Ministers of Ukraine within the Modern Constitutional Development of the State. – [Digital resource]. / S. V. Soroka. – Retrieved from : http://www.dbuapa.dp.ua/zbirnik/2011-02%286%29/11ssvkrd.pdf.
9. Urias Yu. P. Parliamnetary Law of the FRG // Features of the Parliamnetary Law (Foreign Experience) / Yu. P. Urias. – M. : Institute of State and Law Sciences, 1993. – P. 135-178.
10. Zhuk N. A. The Parliament, the President, the Government: through Mutual Restraint to Mutual Understanding. Monography / N. A. Zhuk. – Kharkiv, 2007. – 241 p.

Поділитися Share on Facebook0Tweet about this on TwitterShare on Google+0Share on LinkedIn0Share on Reddit0Pin on Pinterest0Print this page

Залишити відповідь

403 Forbidden

403 Forbidden


nginx/1.10.3

Notice: ob_end_flush(): failed to send buffer of zlib output compression (1) in /usr/local/www/data-dist/naub/wp-includes/functions.php on line 3721

Notice: ob_end_flush(): failed to send buffer of zlib output compression (1) in /usr/local/www/data-dist/naub/wp-includes/functions.php on line 3721