Volodymyr Zelenskyy remains the legitimate head of state and will continue to exercise his powers until the newly elected President of Ukraine assumes office. On the other hand, the Chairman of the Verkhovna Rada of Ukraine can become the acting head of state only in the case of early termination of presidential powers.
Russian propaganda has been actively “amplifying” the disinformation about the illegitimacy of the President of Ukraine and the expiration of his term of office for the past few weeks. Russian officials resort to clumsy manipulation of the norms of Ukrainian law and Constitution. They claim that Volodymyr Zelenskyy is holding presidential office illegally and that the powers of the head of state should have been transferred to the Verkhovna Rada Chairman Ruslan Stefanchuk. In the words of Dmitry Peskov, the Kremlin perceives the Ukrainian legal system as a “nose of wax” that can be twisted in any direction.
Moscow is also casting doubt on the legitimacy of decisions that have been made by the Ukrainian authorities after 20 May. Russian officials are trying to persuade the international community from signing any agreements with Volodymyr Zelenskyy by arguing that such documents “won’t have legal force”. Furthermore, Russia calls on mobilised Ukrainian citizens to return home for the reason that Zelenskyy “usurped” power and issued “illegal” decrees on mobilisation. Russia even cited the results of some opinion polls showing that only 17% of Ukrainians consider Zelenskyy as a legitimate president.
This hybrid tactic is being implemented amid the constant missile attacks on energy and civilian infrastructure, relentless pressure on the frontline, and the deteriorating socio-economic environment as a consequence of the war. Also not to be overlooked is the geopolitical factor: Russia’s mud-slinging campaign is aimed at weakening Ukraine’s positions on the international stage as well as eroding the international support for Ukraine.
The main resource of Kremlin’s arguments is the formalistic and sometimes arbitrary interpretation of the Constitution of Ukraine. In particular, according to article 83 of the Constitution, “in the event that the term of authority of the Verkhovna Rada of Ukraine expires while martial law or a state of emergency is in effect, its authority shall be extended until the day of the first meeting of the first session of the Verkhovna Rada of Ukraine elected after the cancellation of martial law or of the state of emergency”. However, the Constitution does not contain a similar provision regarding the President.
At the same time, Ukraine is trying to adhere to the basic principles of a democratic state while defending against unprovoked and brutal aggression. We should not allow the aggressor state to use the topics, which are sensitive issues for Ukrainian society, as a weapon in the information war against Ukraine. That is why OPORA’s lawyers presented five key arguments in support of the legitimacy of President Zelenskyy.
Firstly, the Constitution of Ukraine is infused with the ideas of succession and continuity of power. Let’s start with the Preamble of the Basic Law which mentions the “centuries-long history of Ukrainian state-building” process that continues to this day in the conditions of unprecedented military aggression launched by the Russian Federation. All bodies of state power operate on the same principles of continuity and succession. The Verkhovna Rada of Ukraine, the President of Ukraine and the Cabinet of Ministers of Ukraine exercise their powers until the election or appointment of new persons to the respective offices (for more information, please see Articles 83, 108, 115 of the Constitution of Ukraine
Secondly, according to the Constitution of Ukraine, “the President of Ukraine exercises his or her powers until the assumption of office by the newly-elected President of Ukraine”. For example, during the Orange Revolution and the “third round” of the presidential election, Leonid Kuchma exercised presidential powers until 23 January 2005, i.e. until Viktor Yushchenko assumed office. Herewith, it should be noted that Kuchma’s term of office expired on 31 November 2004.
Thirdly, the above-mentioned provision of the Constitution is supplemented by the provisions of Article 19 of the Law of Ukraine “On Legal Regime of Martial Law”, which prohibits the holding of presidential election under martial law. The President of Ukraine exercises his powers until the end of the legal regime of martial law and after termination thereof until the newly elected head of state assumes office following the results of presidential election.
Fourthly, the Chairman of the Verkhovna Rada of Ukraine performs the duties of the President of Ukraine only in case of early termination of the powers of the Head of State, in particular in the event of President’s resignation, inability to perform his duties for health reasons, removal from office by the procedure of impeachment or death. In February 2014, in the midst of the Revolution of Dignity, we witnessed an unprecedented event when the head of state left the office in an arbitrary way. At the time, the Verkhovna Rada of Ukraine adopted a resolution on self-removal of the President of Ukraine from office, which stated that Viktor Yanukovych unconstitutionally withdrew from exercising the powers of the Head of the State and neglects his presidential duties. Accordingly, the Chairman of the Verkhovna Rada of Ukraine Oleksandr Turchynov was the Acting President during the period from February 23 to June 7, 2014, when the newly elected President of Ukraine Petro Poroshenko assumed office.
It should also be noted that, while performing the duties of the president, the Chairman of the Verkhovna Rada is not vested with the full scope of presidential powers. In particular, the Chairman of the Verkhovna Rada cannot address the people and the Verkhovna Rada of Ukraine with annual and special messages on the domestic and foreign situation of Ukraine; call an all-Ukrainian referendum on amendments to the Constitution of Ukraine; schedule an all-Ukrainian referendum on people’s initiative; call early elections to the Verkhovna Rada of Ukraine; terminate the authority of the Verkhovna Rada of Ukraine in cases specified by the Constitution of Ukraine; submit proposals to the Verkhovna Rada for the appointment of the Minister of Defence of Ukraine and the Minister of Foreign Affairs; appoint and dismiss the Prosecutor General with the consent of the Verkhovna Rada of Ukraine; appoint and dismiss one-half of the composition of the Council of the National Bank of Ukraine and one-half of the composition of the National Council of Ukraine on Television and Radio Broadcasting; appoint judges of the Constitutional Court of Ukraine; confer high military ranks, high diplomatic and other high special ranks and class orders; confer state awards; grant pardons; establish consultative, advisory and other auxiliary bodies and services to exercise his/her powers.
Fifthly, only the Constitutional Court of Ukraine can confirm the obvious constitutional provisions and their actual meaning – either by way of providing an official interpretation of the provisions of Article 108 of the Constitution of Ukraine or by adopting a resolution on the compliance of the provisions of the Law of Ukraine “On the Legal Regime of Martial Law” with the Constitution of Ukraine. In either case, it is necessary that one of the following subjects applies to the Constitutional Court: the President of Ukraine, a group of no less than forty-five members of the Parliament of Ukraine, the Supreme Court, the Ukrainian Parliament Commissioner for Human Rights, or the Verkhovna Rada of the Autonomous Republic of Crimea.
Therefore, the President of Ukraine Volodymyr Zelenskyy remains the legitimate Head of the State and will continue to exercise his powers until a newly elected President of Ukraine assumes office. Appointment of a new President is possible only through holding presidential election after the termination of legal regime of martial law.
Source: https://censor.net/ua/b3493301