Impeachment: Does New Law Change Anything?

12 September 2019 18:48

Ukrainian MPs during a parliamentary session on September 10, 2019.Oleksandr Synytsia / UNIAN

The ninth convocation of the Ukrainian parliament is churning out laws left, right and center. The presidential impeachment law was no exception. Despite all the remarks of experts, academics and colleagues from the parliament, it was taken as a basis and as a whole, without getting the chance to be improved. Despite it being far from perfect.

1. What Is Impeachment?

Impeachment is the procedure of removing a president from his post in case he is suspected of committing treason or another crime. This procedure is very unusual and is rarely used anywhere in the world. Therefore, most of its important aspects are spelled out explicitly in the Constitution.

It stipulates that 226 votes (the majority of the constitutional composition) are required to start the procedure. Bringing an accusation against the president requires a further 300 votes (two-thirds of the constitutional composition). Ousting him from the post of head of state needs at least 338 votes (three-fourths of the constitutional composition).

2. What Is Not Regulated in the Constitution?

Among other things, the provisions of the constitution oblige the parliament to establish a special provisional investigatory commission to determine whether or not the president's actions constitute a crime.

The very activity of such commissions was one of the loopholes in the law, which, according to many politicians, made it impossible to conduct the impeachment procedure. In the last days of its parliamentary life, the previous convocation MPs filled this gap by adopting the law "On Provisional Investigators and Special Commissions of the Ukrainian Parliament".

It would have sufficed for Volodymyr Zelenskyy to sign the creation of the parliamentarians to fulfill one of his election campaign promises. The Constitution gave the president 15 days after receiving the text of the law from the parliament to decide whether to sign the law or to veto it. But he chose the third option – to violate the Constitution and to leave it be. As a result, the unsigned and unapproved law simply remained in limbo because of a legal loophole.

3. Is a Separate Law on Impeachment Required?

Impeachment remains a parliamentary procedure, albeit a very specific one. Just as considering bills, amending the constitution or appointing staff is.

One of the leaders of the presidential team, Vice-Speaker Ruslan Stefanchuk has repeatedly promised that he will pursue codification of Ukrainian laws. Codification is an amalgamation of rules laid down by different laws into one act, so that there are no differences or inconsistencies between them. All parliamentary procedures are regulated by the Regulations of the Verkhovna Rada of Ukraine (Ukrainian parliament).

Due to the fact that impeachment is also a parliamentary procedure, it would be logical to regulate it by amendments to the regulations. The need for this was stressed by the experts of the Main Scientific and Expert Department of the Verkhovna Rada Secretariat. However, no one paid heed to their opinions, and the parliamentarians adopted the law as a basis and as a whole.

4. Were There Any Violations of the Regulations When the Bill Was Considered?

The parliament initially approved the bill in the first reading, and then as a whole during the next vote. This deprived the MPs of any opportunity to submit their amendments and proposals to it.

Such a procedure is admissible, but only under a number of conditions. For example, the regulations prohibit the final adoption of a bill in case there are comments from the MPs, the Main Expert or Main Legal Departments of the Parliamentary Secretariat.

As already mentioned, the Main Expert Department delivered its opinion on the draft law by producing a number of significant comments to the draft law, both concerning the content and the technical side. It also recommended that the parliament return the project for revision. MPs provided similar comments. In such circumstances, the regulations prohibit the adoption of the bill as a whole. Instead, it could only be adopted in the first reading and then had to be further elaborated by the relevant committee in accordance with the amendments and proposals of the MPs.

Therefore, there was obvious violation of the regulations during the consideration of the bill.

5. Will Impeachment Be Possible After the Law is Passed?

The impracticability of the impeachment institute, despite popular belief, is very loosely linked to the lack of a law of the same name. Only 226 votes are required to pass such a law, 300 votes are required to override the president's veto, and 338 votes are required to finally deprive the president of his seat, that is, ¾ of the constitutional composition of the parliament.

It is almost unrealistic to obtain such support. First of all, the last two convocations work with incomplete composition, because no elections were held in the occupied constituencies in Crimea, Sevastopol, and parts of Donbas. For instance, in the ninth convocation of the parliament, 26 out of the total 450 seats are left empty. So even if just 87 MPs oppose the impeachment, the decision will not be adopted.

Secondly, Ukrainian presidents traditionally have large parliamentary factions that guarantee them impeachment security. Viktor Yanukovych’s Party of Regions had more than 180 parliamentary seats, Petro Poroshenko Bloc had approximately 140, whilst Zelenskyy's party has a single-party majority – 254 people. It is difficult to envisage the circumstances under which the MPs could unseat their leader.

Thirdly, last week the parliament abolished MPs’ immunity. Therefore, if the MPs do set out to remove a bad president, they now have to take the risks of falling into the hands of the Security Service or the Prosecutor General's Office, who are controlled by the president. After all, the pressure of law enforcement agencies on politicians is nothing new.

Therefore, in the absence of the law, the inadequacy of the impeachment institute is more of a myth rather than a reality. Impeachment is highly unlikely because of the need for the final decision to be supported by ¾ of the MPs from the constitutional composition.

Experts agree that for its "resurrection" it is necessary to amend the Constitution and reduce the number of necessary votes from 3/4 to 2/3, i.e. from 338 to 300.

Given the large number of sound remarks made by the parliamentarians on the impeachment bill and its low impact on the substance of the problem, it appears that the law was largely adopted for populist reasons rather than legal ones.