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Impeachment to the President. How do we possibility into a mechanism?

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During the election campaign, the issues of the immunity abolition and impeachment procedure simplification become burning, which has been projected.

It is noteworthy that both presidential candidates declared the need for a “law on impeachment”.

What is being offered?

Volodymyr Zelenskyi’s program: “I will lead the way in introducing equality and justice. My draft laws in this area: “On the Removal of Immunity from the President of Ukraine, MPs and Judges”; “On the Impeachment of the President of Ukraine”; “On the Withdrawal of a MP of Ukraine”. There will be no abuse of power, no “telephone rule”. The inevitability of responsibility and fair and just punishment is the basis of honest Ukraine.”

Statement by Petro Poroshenko: “I firmly believe that we really need this law (on impeachment. — UNIAN), as well as the law on the Temporary Investigation Commissions. I am absolutely convinced that the Parliament should discuss this issue and this law should be taken as the responsibility of the president in case of the Constitution violation and the commission of a crime.”

Note that the idea of adopting a law on impeachment is not new and definitely lacks originality.

The candidates emphasize that the adoption of a potential law will unsure “inevitability of the president’s responsibility” and “responsibility of the president in case of violation of the Constitution and the commission of a crime”. This hackneyed subject in our political discourse is somewhere between the abolition of immunity and the death penalty for corruption in the speculation ranking.

What is really going on?

The problem of the unrealistic impeachment procedure is not caused by the lack of legal regulation: we have it – Chapter 30 of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, where everything is stipulated. It is also not caused by the lack of proper legislative support for the operation of temporary investigative commissions (for this is only one of the impeachment procedure stages). The roots of the problem are quite different: in the very structure of the impeachment procedure enshrined in Article 111 of the Constitution.

The provisions of the relevant Article of the CU provide for the following procedure for the impeachment initiation and execution:

1) At least 226 MPs initiate a procedure for the removal of the President of Ukraine from office through impeachment;

2) At least 226 MPs vote for the creation of a special temporary investigative commission;

3) At least 300 MPs adopt a resolution on the accusation of the President of Ukraine (if there are conclusions about the President’s commission of treason or other crime);

4) The Constitutional Court gives an opinion on the observance of the constitutional procedure for investigation and consideration of the impeachment case;

5) The Supreme Court concludes that the actions which the President of Ukraine is accused of have signs of treason or other crime;

6) The Verkhovna Rada (votes of at least 338 MPs) adopts a resolution on the removal of the President of Ukraine from office through impeachment.

It is unreal to implement this procedure due to its complexity, multi-stage nature, as well as the need to have votes of 338 MPs for a final decision.

And, as it turns out, the thing is not that there is no law on impeachment in Ukraine. Just try and find the decisions of the parliament which were adopted by such a number of votes. There are very few cases and the issues were undisputed.

The Ukrainian structure of the impeachment procedure combined two different impeachment models which exist in the world in parallel to each other.

The first one envisages president’s impeachment for a crime the president has allegedly committed and removal from office either after the conviction or after obtaining the necessary opinion on the existence of elements of crime in president’s actions, which precedes the trial. The second procedure is of a purely political nature and envisages removing the president from office without a court or formal charges. It can be used either when the president commits unconstitutional but non-criminal actions or in the case of a low legitimacy of the president. It is only in this case that a large number of votes in parliament is required to adopt the impeachment of the president of the country. Ukraine has succeeded in creating a mind-blowing hybrid of an elephant and a rhinoceros, which consists in the symbiosis of these two models in Article 111 of the Constitution of Ukraine.

What about other countries?

Let’s use the data from the report “Semi-Presidentialism and Inclusive Governance in Ukraine: Reflections for Constitutional Reform”.

So, the president may be prosecuted by the decision of a two-thirds majority of the parliament (or lower chamber of a bicameral system) in Bulgaria for the commission of an offense (Art. 103), Croatia (Art. 105), Macedonia (Art. 87), Madagascar (Art. 131), Mali (Art. 95), Poland (Art. 145), Portugal (Art. 130), Sri Lanka (Art. 38).

In Russia, the impeachment of the president requires a two-thirds majority in both chambers of the parliament (Art. 93), and the Supreme Court must pass a verdict of guilty, and the Constitutional Court must confirm that the correct procedures have been applied to remove the president from office. In Senegal (Art. 101), a majority of three-fifths in both chambers is required. In Romania (Art. 96), the president may be brought to justice by a two-thirds majority at a joint meeting of both chambers. In Finland, the parliament decides to press charges against the president by a majority of three quarters of the votes. In this case, the Attorney General represents the charges against the President in the High Court of Impeachment (Art. 113).

In some other countries, there is no need for a qualified majority to impeach the president. In Armenia (Art. 57), Nigeria (Art. 53) and Slovenia (Art. 109), a simple majority is required for the impeachment of the president and the commencement of the tribunal proceedings. In Peru (Art. 99 and 100), charges against the president in committing crimes are pressed by a permanent parliamentary committee and adopted by a simple majority of votes of the members of the parliament.

What shall we do?

In general, world practice is diverse, and there are many options. The impeachment procedure should meet to two key requirements:

– Impeachment procedure should be realistic and not too complicated;

– Impeachment procedure should protect the president from unmotivated political pressure exerted by the parliament.

The process should have no more than two to three steps and balance the protection of the president from politically motivated dismissal and the possibility of an effective impeachment procedure. To do this, it is necessary to amend Article 111 of the Constitution. No legislative regulation without constitutional changes will affect the possibility of impeachment in Ukraine.

As an option, it is proposed to change the constitutional provisions and provide for the possibility of implementing the impeachment procedure:

– In case of violation of the Constitution by the President (when the president exercises powers);

– If the president commits actions that have signs of treason or other intentional crime.

The Constitutional Court must conclude that the President has violated the Constitution. And a temporary investigative commission has to conclude on the presence of signs of intentional crime in the actions of the president. Thus, two alternative impeachment procedures are foreseen in case of violation of the Constitution and the commission of a crime. The final decision on impeachment should be adopted by at least 300 parliamentarians.

What are the prospects?

If politicians decide this issue solely on the legislative level – there are no prospects for solving the problem.

If the problem is resolved at the constitutional level – it would be desirable to resolve it in the framework of a comprehensive reform of the entire state mechanism ‘parliament-president-government’.

Unless there is a request for systemic constitutional reform, the prospects are sad.

Yuliia Kyrychenko and Bohdan Bondarenko for the Dzerkalo Tyzhnia Newspaper

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