Legislative authorities in different countries take the unprecedented preventive measures by introducing restrictions for journalists, observers, and the MPs alike. Some parliaments adopted decisions on the abridged procedures for debate, or even on the temporary suspension of their sittings. However, a key question the MPs are trying to answer is about their overall role during the counteraction to a large-scale social challenge. For the period of fighting the COVID-19, executive authorities receive additional powers, and parliaments shall reinforce their controlling functions in order to prevent abuse and human rights violations.
Verkhovna Rada of Ukraine is also part of a global discussion about operations of MPs amidst the pandemics, and about the guarantees for their efficiency in emergencies. People’s deputies of Ukraine work in the committees until April, 3, 2020, having discarded the plenary sittings. The Chairperson of the Verkhovna Rada of Ukraine Dmytro Razumkov received the right to extend the period of work without plenary sittings and/or initiate the urgent plenary sitting in the emergency, upon the proposal by the Parliament’s Conciliation Committee. Ruslan Stefanchuk, the first deputy Chairperson of the Verhkovna Rada of Ukraine, in turn, registered a draft law on holding sittings of Parliament and its Committees in a video conference format.
Civil Network OPORA made an analysis of prospects, advantages and shortcomings from introducing the videoconferencing as a format for plenary sittings in the Ukrainian Parliament. The aspect is analyzed in the context of international discussions of functioning of legislative and representative authorities amidst the pandemics.
Efficient parliamentary control can only be possible when the deputies exercise their powers on a collegiate and regular basis. Legislative authorities are actively searching for the “remote work” formats. The format implies the possibility to hold plenary sittings and committee meetings of parliaments in a videoconference format or distance voting of MPs. No one can exclude the situation when the number of infected MPs becomes critical and the level of threat disables any group events in the country.
Before the pandemics evolved, there were scarcely any parliaments with distance work of their MPs at the parliamentary sittings (Spain, Paraguay). After the pandemics broke out, distance formats have been used for the parliamentary sittings and MP voting in Poland, Brazil, Ecuador, Argentina, and in many local self-governments in various countries. Specifically, the Parliament of Brazil introduced the state of emergency via videoconferencing already.
Online sittings and voting in the parliamentary committees are rather actively implemented around (House of Commons in the UK, Parliament of Argentina).
The involuntary discussion is not easy to cope with in many countries, with regard for constitutional or legislative restraints and the peculiarities of relations between the acting government and the opposition.
Supporters of “distance” parliaments believe they would allow to keep the executive power in the settings of stringent quarantine measures or the spread of virus among the MPs. It is not a rare case that opposition demand a dialogue about the remote formats of operations for fear of lockdown of parliaments due to disease prevalence among the MPs. For example, opposition in Hungary are raising an issue about the possibility of distance parliamentary sittings in the context of the Government’s intentions to reinforce their powers and be the only center of power for the duration of the state of emergency.
Opponents of the idea fear degradation of the parliamentary discussions since video conferences or distance voting for draft laws disable the high quality and proper discussion timewise. Another common phenomenon are the calls to safeguard the parliamentary traditions that might be compromised by new technologies. Retreat from traditions, according to some MPs in the USA and UK, will reveal to citizens a mood of panic in the ruling class.
Some MPs admitted they did not have the high-quality systems for videoconferencing, for identification and distance voting of MPs. Therefore, they fear for technical issues or external interference.
Quite many countries have the ongoing heated debate about the constitutional nature of the distance formats of parliamentary or committee sittings. However, they usually admit the need to act non-conventionally under new emergency settings. For example, Egils Levits, the President of the Latvian Republic, held consultations with experts in the field of constitutional law on the legitimacy of distance parliamentary sittings. The head of state declared that provisions of the national Constitution about the possibility for the Parliament to sit outside Riga in the emergency allow to temporarily use remote modes of functioning.
A political dialogue in different countries shapes four key approaches to assess the prospects of implementing remote voting and distance parliamentary sittings. The approaches may contradict with each other but they are important to be taken into account simultaneously.
Firstly, it must be recognized that the problem is not far-fetched. Indeed, the functions of the parliament and its role in the society may be compromised in case of temporary suspension of their activities. In the event of the shutdown of parliaments because of the virus threat, a balance of power may be crucially disrupted, even without its formal redistribution or with no legalization of a new non-democratic situation. Presidents and governments of states will easily assume the de-facto powers of parliaments amid the social demand to provide for operational efficiency of anti-epidemic measures.
Secondly, any legislative barriers to implementing the decision on the parliament’s remote operations shall be duly eliminated. The criticism of innovations is often excessively formalized. However, without providing for the legality of the process, new procedures cannot be implemented in a democratic society.
Thirdly, the experiments with online sittings and remote voting of MPs or the decisions can be undertaken only in the event of reaching agreement between the parliamentary majority and minority, and also upon clear documentation of the grounds for applying the procedure, and stating its temporary nature. A parliamentary consensus allows to prevent the actual or possible use of the new mechanism for the benefit of certain political forces.
The approach may be illustrated by the draft decision of the US Senate on introducing changes to the Regulations. The suggested procedure is based on the agreement of majority and minority leaders to empower senators to vote remotely, valid for 30 days only, upon the mutual political decision. In the event there is a need to extend the period for remote voting of senators, the decision shall be taken by ⅗ of votes of the Senate. The voting technology and its security shall be determined by the Senate Secretary and his security services.
Why is it important to secure the temporary nature of the procedure? Remote voting or remote parliamentary sitting - it is a way to preserve parliament's role in society during a pandemic, rather than the complete format of its work. This view is supported by the widespread practice of remote parliamentary work in the "peace" period and the introduction of new procedures only in exceptional circumstances.
Fourthly, the Parliament can temporarily switch to a new technology only if it is confident in its reliability. Disruption of remote voting or meetings due to technical problems, unlawful interference with online systems discredit the parliament, and further destabilize its work. Equally important is it to maintain the standards of recording and openness of the indicators of the presence of deputies and of their voting results. It is obvious that parliaments will need considerable funding to develop a viable and secure platform for remote operations.
According to OPORA estimates, it is on these approaches that the debates in different countries are based about the specifics of the future work of the Parliament in the face of an aggravation of the situation.
Key topics for discussion and for initiatives of foreign MPs and local self-governments on the work during the pandemics include the following:
- Implementation in practice of remote voting and/or remote plenary sitting of a collegial body.
On March, 26, 2020, the European Parliament held an urgent plenary sitting where MPs were entitled to vote by email for a decision to counteract the coronavirus. In March, Parliaments of The Federal Republic of Brazil, The Republic of Chile, The Republic of Ecuador, and of Tunisia legally provided for remote meetings and parliamentary votes in exceptional cases. The possibility of holding online meetings after the start of the pandemic has been introduced by the small parliament of Sint-Maarten, with 15 MPs (The Kingdom of the Netherlands).
- Discussing amendments to legislation and regulations to allow parliamentarians to vote remotely for draft decisions and remotely attend meetings (Congress and US Senate, United Kingdom House of Commons, National Assembly of Wales, Australia, Romania, Georgia, Greece, Latvian Republic, Ukraine). These discussions take place both at the level of MPs public statements and on the basis of specific draft laws. In particular, more than 50 US congressmen have signed a statement on the need for distance work.
- Introduction of remote forms of work of deputies of local self-government bodies and bodies of regional self-government (a number of US states, Australia). For example, the Arizona prosecutor issued special recommendations on how to ensure transparency of online meetings of collegiate state authorities: communication to the public 24 hours before the meeting, public broadcasting of a video conference, publication of all materials on the website, providing a technical opportunity to ask questions, an obligation for speakers to name themselves.
- A deputy is considered to be present if s/he remotely follows parliamentary sittings and have informed in advance the Parliament administration thereon. The Finnish Parliament has taken this approach. At the same time, MPs may not vote remotely.
- Temporary delegation of the parliament’s powers to certain parliamentary institutions. This decision was made by the New Zealand Parliament; they authorized one of the parliamentary commissions with extraordinary powers before the temporary shutdown. The decision was justified by the importance of close control over the Government in the face of epidemiological threat.
- The Speaker deprived the deputies of the right to attend the sittings if they stayed in the affected countries and did not observe the requirements of self-isolation (for example, Uganda Parliament).
- Implementation of videoconferences as a format for parliamentary committees (United Kingdom House of Commons, Republic of Chile, Argentina, Brazil, Israel, Croatia).
Therefore, a draft law No. 3250 authored by Ruslan and Mykola Stefanchuks, on remote operations of MPs is not a unique initiative, but rather reflects a broad global debate on introducing alternative modes of functioning for national representative authorities under crisis. The draft law provides for the establishment of a procedure for holding plenary sessions of the parliament and its committees in a video format.
Basic procedures for initiating and holding a plenary sitting of Parliament
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Who initiates the plenary? |
President of Ukraine or one-third of the constitutional composition of the Parliament. |
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Who appoints a plenary sitting in a video conference format? |
Chairman of the Verkhovna Rada of Ukraine |
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When can such a meeting be held |
Within 60 days from the entry into force of the Law. |
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What questions can be addressed in video conferencing? |
Draft laws of particular importance and related to coronavirus counteraction, national security and defense, economic prosperity and human rights. |
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How are MPs informed? |
The Council administration shall notify the MPs by e-mail within 24 hours before the meeting, and shall post the notice on the parliament's website. |
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Where is the video conference meeting held? |
The meeting is technically held at the premises of the Verkhovna Rada of Ukraine, with a limited list of persons present. |
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Who is present at the Council premises during the video conference? |
The Chairman of The Verkhovna Rada of Ukraine, his Deputies, one representative of each faction and group, the Chairman of the Committee in charge of the draft law, the rapporteur of the draft law, the members of the Counting Commission, the staff of the Parliament's Administration. Other MPs attend the sitting via a video conference. |
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What platform to be used? |
The draft law does not include any names or technical specifications of the software providing for a videoconference. |
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How is the presence of the MP documented? |
Before the opening of the sitting, a record is kept of the people's deputies of Ukraine who joined the videoconference. The Council apparatus informs the Speaker of Parliament of the results of the record of the People's Deputies. No detailed procedure of record for MPs has been established. |
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How is the draft law consideration running? |
Timing requirements: 1) speaker - 10 minutes; 2) co-rapporteur - 5 min; 3) 5 min. each for representatives of the faction and group present at the Council premises. Speeches by other MPs are not foreseen. |
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How is the voting administered? |
The voting sequence is as follows:
Upon completion of voting of all deputies, the Chairman of the counting commission shall report on the results of voting. |
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Signing of the Law adopted at the videoconferenced plenary sitting |
The Speaker of Parliament immediately signs the Law and sends it to the President of Ukraine. |
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Access of the public |
The plenary sitting of the Council in a video format shall be broadcast on TV, radio and on the Council's website. |
The draft law by the deputies Ruslan and Mykola Stefanchuks provides for amendments to the Law of Ukraine “On Committees of the Verkhovna Rada of Ukraine”. If the Parliament plans to consider the draft laws in videoconference, the committee may also prepare them remotely. The video conferenced committee meeting shall be initiated by its chairperson.
OPORA identified the following advantages of the draft law No. 3250:
- the available procedure for parliamentary decisions to be taken in the event of an aggravated epidemiological situation.
This will potentially help avoid the exclusion of parliament from important decision-making processes, and prevent the de facto destruction of the balance of powers.
- the available step-by-step procedure for identifying a deputy and recording their vote in a video conference meeting (although it is not without shortcomings).
- ensuring the broadcasting of the remote participation of the People's Deputies of Ukraine in the Parliament's sitting on TV and radio, on the Parliament's website.
The shortcomings of the draft law are:
- its debatable conformity with the Constitution of Ukraine;
Pursuant to Article 84 of the Constitution of Ukraine, parliamentary sittings shall be held openly, and the decisions shall be taken exclusively at plenary sittings, by a personal vote of people's deputies. On the other hand, Article 91 of the Constitution provides that the Verkhovna Rada of Ukraine shall adopt laws, decrees and other acts by majority of its constitutional composition (except in individual cases). These provisions were interpreted by the Constitutional Court of Ukraine in its decision dated October 17, 2002 (No. 17- рп / 2002).
With this decision, the Court determined that the plenary sessions of the Parliament were the regular meetings of the People's Deputies of Ukraine at a fixed time and in a designated place, held in accordance with the established procedure. They consider the issues referred to the powers of the Verkhovna Rada of Ukraine by the Constitution of Ukraine, on which decisions are made by personal vote of the People's Deputies. Instead, the powers of the Verkhovna Rada are implemented by the joint activity of the People's Deputies of Ukraine at the meetings of the Council during its sittings.
This decision of the CCU is the basis for substantiating the position that videoconferencing meetings are not a regular assembly of MPs at a specified time and place, or that they are not held in accordance with the established procedure. This position is based on the statement that the assembly of deputies must imply their physical presence.
The authors of the draft law sought to respond to the CCU's 2002 position. The draft law defined:
- venue of the meeting (premises of the Verkhovna Rada of Ukraine);
- clear procedure for its initiation and conduct;
- the requirement to establish the People's Deputies presence and the authority of a sitting of Parliament in videoconference mode;
- several stages of checking the personal and open voting of a deputy (identity verification before the vote, displaying the deputy's appearance during the voting, announcing his/her position and raising his/her hand in support or against the draft document, fixing the voting content of each person by the Counting Commission).
The 2002 decision of the CCU does not explicitly prohibit remote personal voting. The final point in the discussion regarding the remote participation of MPs in a videoconference parliamentary sitting can be made only by the Constitutional Court in the case of the adoption of the relevant Law and the receipt of a constitutional submission. The position of the Court cannot be ruled out in the presence of objective grounds for the need to improve the protection of constitutional rights and freedoms.
The same decision of the CCU defines the possibility of joint activity of MPs only at sittings of the Verkhovna Rada, during its sessions. Joint activities outside these sittings and beyond the sessions are unacceptable (No. 17-рп / 2002 of October 17, 2002). The Court's position may be seen as evidence of the unconstitutionality of the videoconference decisions, as they were not taken at a “regular” parliamentary sitting.
It is only the Constitutional Court that shall determine the conformity of legislation with the fundamental law. You can find the pros and cons of the constitutionality of plenary sittings in a video conferencing format. However, the Parliament is obliged to examine the problem before a final decision is taken to prevent a possible recognition of parliamentary decisions as unconstitutional.
- the absence of a “veto” of deputy groups and factions on the initiative to hold a plenary sitting.
Upon the initiative of the President of Ukraine alone, or members of one faction, the Speaker of the Parliament (150 MPs) may appoint meetings in a video format. According to OPORA, the legitimacy of the new procedures depends directly on the availability of consent for their implementation by all parliamentary factions and groups.
- no alternative for discussing draft laws under the full procedure and adopting draft laws solely under voting procedures as a whole and in general (without the right to make amendments and proposals, to consider drafts in the second and third readings).
The current Regulation also provides for the possibility of discussing draft laws under the abridged procedures, and adopting them immediately after the first reading. However, in OPORA's view, the automatic deprivation of the right of MPs to consider and decide on full procedures is unacceptable.
- lack of requirements for the video conferencing system and procedures for monitoring its proper functioning;
- lack of detail in the procedures for recording deputies at a plenary sitting during a videoconference mode, and for establishing the number of attendees required for the plenary sitting qualification;
- absence of a procedure for identifying a deputy through his official registration in a certain parliamentary system. This shortcoming of the draft law is an argument supporting the idea of failure to provide for a personal vote in a video conference mode.
- absence of a procedure for intra-parliamentary appeals against the voting results, in case of non-personal voting or other violations. Such a procedure shall be applied in accordance with the effective procedures in the event of detecting the “ghost voting” facts in decision-making.
Therefore, the prospects of holding plenary sittings of the Parliament in a videoconference mode are ambiguous. Exceptionally, such a special procedure may be necessary. However, a registered draft law does not clearly erase the reservation about its unconstitutionality. It also offers no realistic vision of how to quickly develop and implement a secure videoconferencing system for parliamentary sittings. An important note is the restriction of the right of the People's Deputies of Ukraine to consider draft laws under the full procedure.
Recommendations to the Verkhovna Rada of Ukraine
To identify a possibility to further consider the draft law
To the Committee on the Rules of Procedure, Deputies' Ethics and Organization of Operations of the Verkhovna Rada of Ukraine:
- Pursuant to the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, to apply without delay to the Venice Commission (European Commission for Democracy Through Law) and to national expert organizations for an urgent position on constitutional restrictions for holding a video conference in plenary.
In case the draft law is approved:
- After the entry into force, to apply to the Constitutional Court of Ukraine to claim to review the draft law and to obtain its decision on non-applying the new procedure.
This approach will avoid the recognition of parliamentary decisions as unconstitutional in the future.
In case the parliament decides to continue working on the draft law:
- To consider alternative options for preventing the incidence of disease among the MPs, and for providing the necessary distance between them (for example, designation of separate rooms for videoconferences to MPs at the Parliament's premises).
- To limit the period of enforcement of the Law not only by the number of days from the date of entry into force, but to additionally take into account the decisions of the responsible authorities about the level of virus threat and the mode of response thereto.
- To provide that the reduction of the process for consideration and adoption of draft laws at videoconferenced plenary sittings can occur only within the limits of the current provisions of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”.
- To provide a rule on approval of the initiative to hold a video conference meeting by the heads of all parliamentary factions and groups, or by ⅔ of the total number of such leaders.
- To define more clearly the subjects of draft laws that can be considered by the Parliament in a videoconference mode.
- To identify the safeguards, requirements, and procedures for the security of the system used to provide the video conference.
- To establish procedures for the registration of MPs in the videoconferencing system by means of electronic digital signature at the beginning of the plenary sitting.