On May, 3, 2022, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on the Prohibition of Political Parties", where in sub-paragraph 1 of para 2 of the Final Provisions, the Cabinet of Ministers of Ukraine was set to submit for consideration by the Verkhovna Rada of Ukraine a draft Law of Ukraine on Amendments to Certain Legislative Acts of Ukraine on the Consequences of a Court Decision to Ban a Political Party for the Status of Local Councilors within one month from the date of entry into force of this Law. Upon the entry into force of this Law, on May, 18, 2022, on June, 20, 2022, the Government introduced a draft law "On Amendments to Certain Laws of Ukraine on the Consequences of a Court Decision to Ban a Political Party on the Status of Local Councilors" No. 7476 dated June, 20, 2022.
In this regard, Civil Network OPORA, as a non-governmental and non-partisan all-Ukrainian organization, exercising civic control and advocacy in the area of elections, parliamentarism, and local self-government, has analyzed the legislative initiatives.
The draft law proposes to regulate the consequences of the decision to ban a political party in the context of the following:
- status of local councilors (early termination of their mandate);
- status of local councils (early termination of their mandate);
- the role of military and civil-militray administrations in case of early termination of mandate of local councils, as well as the appointment and holding of early elections.
1. Status of local councilors (early termination of their mandate). The draft law proposes to supplement the list of grounds for early termination of mandate of a local councilor (para 7-2 of Part 1 of Art. 5 of the Law of Ukraine "On the Status of Deputies of Local Councils") with an item such as the entry into force of a court decision prohibiting the activities of a political party on which behalf the person was nominated and elected as a deputy of the local council from the party’s local organization, as well as membership of a local councilor in the deputy faction of the local organization of a political party, which activities are prohibited by a court decision that has entered into force.
Taking into account the use of the conjunctions “and” and “as well as” in the wording of the said ground, we can claim that its application requires a combination of such jural facts as:
- entry into force of a court decision prohibiting the activities of a political party, on which behalf the person was nominated and elected as a local councilor;
- membership of a local councilor in a deputy faction of a local organization of a political party, which activity is prohibited by a court decision that has entered into force.
At the same time, the wording of these grounds is not without shortcomings. Thus, the use of the expression "membership in a parliamentary faction" in practice can lead to alternative interpretations. First of all, because the draft law does not specify when exactly the deputy should join the membership of a parliamentary faction: either at the time of entry into force of the court decision on banning the activities of a political party, or at the time of assuming the powers; or during a certain period of exercise of their powers (even if such a deputy has already terminated their membership in a faction and joined another one). Thus, there may be a question: shall the mandate be terminated for a deputy who at the time of filing a claim or passing a decision was a member of the faction but withdrew from the membership before the decision came into force.
In this regard, in order to improve the legislative technique, the provision on membership in a parliamentary faction can be specified in such a way that the grounds for early termination of powers shall be the membership in or being part of a parliamentary faction at the time of filing a lawsuit on the prohibition of a political party, or related to another clearly defined fact. Such wording would contribute to the legal certainty of the provision and would minimize the possibility of evading the responsibility by deputies of local councils for belonging to the political party through early termination of their membership in the faction before the court decision prohibiting the political party enters into force.
Please, note that the content of Parts 1 and 2 of Art. 27 of the Law of Ukraine "On the Status of Deputies of Local Councils" implies that deputy factions of all local councils are formed on a party basis, except for village and township councils. Deputies of village and township councils may unite into deputy factions of local councils on the basis either of party membership or shared views. Deputy factions may also include non-partisan deputies of village and township councils who support the political vector of the factions. This will raise the issue of identification of the basis to build deputy factions of village and township councils, and, accordingly, the possibility of early termination of their mandate on the grounds of "the local councilor’s membership in the deputy faction of a local organization of a political party which activities are prohibited by a court decision that has entered into force." Thus, since the legislation allows the formation of parliamentary factions in village and township councils not only on the basis of party membership, but also on the basis of shared views, it will be difficult to identify the factions formed therein as factions of the local organization of a political party. This may create additional barriers in the application of this ground in practice.
The explanatory note should also explain the criteria for early termination of powers of local councilors. For example, why a model of a totality of jural facts was chosen (banning a party, nomination and election from the party’s organization, and membership in the faction), rather than some individual facts. Also, the explanatory note does not explain why the fact of membership in a political party is not taken into account, even if the person was running for elections through self-nomination. In addition, it is not clear why the draft law does not address the issues of early termination of mandate of village, township, and city mayor, who can also be nominated and elected from the local organization of a political party which activities have been prohibited by a court decision. At the same time, the draft law provides for amendments to the Law of Ukraine "On Local Self-Government in Ukraine." Its Art. 79 regulates the grounds for early termination of mandate of the village, township, and city mayor. Village, township, and city mayor is the main official of the territorial community in the appropriate village (voluntary association of the inhabitants of several villages into one territorial community), village, or city. In this regard, it seems logical that in the event of the entry into force of a court decision prohibiting the activities of a political party, the draft law shall regulate the early termination of powers not only of the deputies of the local council but also of the village, township, and city mayor.
2. Status of local councils (early termination of their mandate). Also, the authors of the draft law propose that the powers of the village, township, city, city district, district, and regional council shall be also early terminated in the event that, on the grounds provided for in paragraph 7-2 of Part 1 of Art. 5 of the Law of Ukraine "On the Status of Deputies of Local Councils", the mandate of more than half of the total membership of the council was terminated (para. 2 Part 1 of Art. 78 of the Law of Ukraine "On Local Self-Government in Ukraine").
However, the use in paragraph 7-2 of Part 1 of Art. 5 of the Law of Ukraine "On the Status of Deputies of Local Councils" of the legislative wording "the termination of powers of more than half of the deputies from the total membership of the council" is not completely correspondent with the provisions of Part 6 of Art. 45 of the Law of Ukraine "On Local Self-Government in Ukraine" regarding the authority of the local council[1]. First of all, according to the general rule, a local council shall be considered competent if at least two thirds of the total membership of the council is elected (Part 4 of Art. 45 of the Law of Ukraine "On Local Self-Government in Ukraine"). However, in case of early termination of the mandate of some deputies, resulting in a situation when the Council has less than two-thirds of deputies, the council shall be considered competent when there is more than half of the required number of deputies (Part 6 of Art. 45 of the Law of Ukraine "On Local Self-Government in Ukraine"). Thus, in the event of the termination of mandate of exactly half of the members of the relevant council, although it will not be competent, its mandate could not be terminated on the basis of the proposed ground. Therefore, the proposed provision resumes the discussion on the legal consequences for the local council in case of its incompetence.
In fact, under the current legal regulation, in case of early termination of powers of deputies of any local council, the latter may be supplemented through replacing in those councils that were formed according to the proportional system under the open electoral lists, or under by-elections in communities where the council was formed according to the majority-based electoral system of a relative majority in multi-mandate electoral districts. However, this draft law proposes to establish an exception that in case of early termination of mandate of a deputy of a local council on the grounds specified in paragraph 7-2 of Part 1 of Art. 5 of the Law of Ukraine on the Status of Deputies of Local Councils, such deputy shall not be replaced, and the corresponding mandate shall remains vacant. Thus, in case of early termination of powers of deputies, the council will not be able to be complete, either in wartime or in peacetime, which will create risks for its competence. Thus, the draft law provides for situations when the number of deputies with the terminated mandate due to the decision to ban a political party is more than half and less than two thirds. In this case, the local council will act until the end of its term of office, and the general rule about the competence of the local council depending on at least 2/3 of the member deputies being elected, shall not apply. At the same time, we would like to draw your attention to the fact that the Law of Ukraine on Local Self-Government in Ukraine provides for cases when the decision of a local council shall be taken by at least two thirds of the votes of deputies from the total council membership (para. 2 Part 2, Part 4 of Art. 59, Part 3 of Art. 79).
It should also be noted that after the adoption of these changes, there may be cases when the mandate of some deputies (less than half) shall be terminated on this basis, and of another part — on other grounds (also less than half), but in aggregate their total number will be half or more of the Council. Thus, there will be no formally defined grounds for early termination of mandate of the local council. In this regard, we recommend to regulate at the legislative level the grounds and procedures for early termination of local councils in case of their incompetence.
In addition, the draft law does not provide an answer to the question on which legal act shall be adopted to serve as a jural fact for the termination of the powers of the local council. This may create difficulties in enforcement, which is emphasized in the conclusion of the Main Scientific and Expert Department of the Apparatus of the Verkhovna Rada of Ukraine (hereinafter — the MSED).
3. The role of military and military-civil administrations in case of early termination of powers of local councils, appointment and holding of early elections.
The draft law provides for amendments, according to which, in case of early termination of powers of more than half of the deputies from the total membership of the council, on the basis of the new paragraph 7-2 of Part 1 of Art. 5 "On the status of deputies of local councils", before the first session of the newly elected council in the relevant districts, oblasts, territories of territorial communities where martial law was introduced, or regime in the area of the anti-terrorist operation, the military (hereinafter — MA) or civil-military (hereinafter — CMA) administrations shall be formed.
The conclusion of the MSED emphasizes that the new provision of Art. 78 of the Law of Ukraine "On Local Self-Government in Ukraine" does not answer the question about the moment of mandate termination for local councils in cases where the CMA and the MA are not formed – in peacetime, to be more specific. Also, the MSED experts believe that since the regional and district military administrations have been already functioning in Ukraine for several months, there would be situations when the early termination of mandate of the local council should be connected with the entry into force of the President's act on the formation of the CMA or the MA, according to the requirements of the draft law. However, these bodies had been established before the court decided to ban the political party.
Please, note that the MA and the CMA are temporary bodies, which formation is decided by the President of Ukraine. Since the President of Ukraine has a certain discretion, it is possible that such a decision on the formation of the MA and the CMA is not made. This can lead to legal uncertainty.
Also, according to the draft law, after the end of the legal regime under which the MA and CMA operate, they shall function until the opening of the first session of the corresponding council elected at the special local elections appointed by the Verkhovna Rada of Ukraine in accordance with the established procedure. If there are less than 180 days left before regular local elections, no special local elections shall be scheduled or held.
Setting such a fairly long period of activity of the MA and CMA (180 days) can be debatable from the point of view of the nature of such temporary bodies. In particular, the MA are formed to introduce and implement measures of the legal regime of martial law, defense, civil protection, public safety and order, protection of critical infrastructure, protection of rights, freedoms and legitimate interests of citizens. CMAs are formed as a temporary unavoidable measure with elements of a military administration to ensure security and normalize the life of the population in the area of the Russian Federation's military aggression, in particular in the area of the anti-terrorist operation. In other words, the nature of the MA and the CMA is preconditioned by extraordinary circumstances, such as martial law and armed aggression of the Russian Federation. Therefore, it may be controversial to see their rather prolonged functioning (180 days) instead of local governments after these circumstances are overcome.
MSED experts highlight the fact that the establishment of restrictions on the conduct of early elections is the subject of legal regulation of the Electoral Code of Ukraine, and the corresponding changes should be made to it. Moreover, it must be added that Art. 284 of the Electoral Code of Ukraine regulates the procedure for replacing deputies of local councils whose powers have been early terminated. Therefore, the proposed amendments and additions to Part 7 of Art. 5 of the Law of Ukraine on the Status of Deputies of Local Councils, which concern the conduct of elections and the replacement of councilors with the terminated mandate should also be regulated by the Electoral Code of Ukraine, in our opinion. This is necessary in order not to offset the objectives of codifying electoral legislation.
It should be noted that such legislative initiatives are contingent on a broad demand in society to counteract the narratives of the aggressor state in political life, including for the protection of democratic values. Therefore, the draft law is extremely relevant and important. However, it is not devoid of shortcomings that can still be eliminated before the second reading. Among other things, the updated version may take into account the recommendations provided in this analysis.
[1] The competence related aspect of the Verkhovna Rada of Ukraine, however, was the subject of analysis by the Constitutional Court of Ukraine (Decision No. 17-rp/2002 of 17.10.2002 and No. 6-r/2019 of 20 June 2019). In particular, in Decision No. 17-rp/2002 of October 17, 2002, the Constitutional Control Body said that the Verkhovna Rada of Ukraine is competent, that is, empowered and authorized to adopt laws and exercise other constitutionally defined powers, provided that at least two thirds of its constitutional composition is elected and that newly elected MPs of Ukraine take an oath. This constitutional requirement is a precondition for the authority of the Verkhovna Rada of Ukraine during the entire period of convocation, and cannot be considered only as the basis for the opening of its first meeting of the first session. The Verkhovna Rada of Ukraine shall be entitled to adopt laws and exercise other constitutionally determined powers, provided that at least the number of MPs of Ukraine required by the Constitution of Ukraine to make the relevant decision is present at its plenary meetings at the time of voting.