The Separation of Powers and Ukrainian Public Policy in Wartime

Sergiy Panasyuk

Ukrainian-American Concordia University & European University

Facing the real risk of physical destruction of the nation and losing its statehood after a full-scale Russian invasion in 2022, both the Ukrainian nation and the Ukrainian government mobilized all sources to resist the enemy. One of the first things that the Ukrainian president did was to declare a martial law regime, and the country united in this historic fight.

Despite the imposition of martial law, the role and powers of the governmental bodies must follow only Constitutional and domestic legislation provisions. The imposition of an emergency legal regime during extraordinary situations cannot permit the arrogation of powers from one governmental branch to another.

While the underlying reasons and motivations behind these actions of the President and the Council remain unclear, the evidence presented in this blog post demonstrates instances of constitutional and legal breaches that warrant thorough examination.

I.              Legislative Background

As a parliamentary-presidential unitary republic, Ukraine has three basic and independent branches of national authority. Following the Constitution, there is the judicial branch in Ukraine, headed by the highest court – the Supreme Court, and the unicameral legislative branch– represented by a national parliament – Verkhovna Rada of Ukraine. The highest body in the system of executive authorities is the Cabinet of Ministers of Ukraine (hereinafter the Cabinet), which the Prime Minister heads. The Cabinet is responsible to the president but controlled and accountable to the Parliament (Article 113 of the Constitution), which is higher than the president.

Under the Ukrainian Constitution (Article 107), the Council of National Security and Defense (hereinafter referred to as ‘the Council’) operates as a coordinating entity subordinate to and chaired by the President of Ukraine. The Law on the Council of National Security and Defense of Ukraine grants the Council the authority to control and coordinate national security and defense activities. However, as all decisions of the Council require implementation through presidential decrees, the Council effectively functions as an advisory and collegial body rather than an independent national institution.

The President, with the complicity of the Council, has overstepped their bounds, initiating actions that directly undermine the constitutional principles of separation of powers among the branches of government.

II.           Acting as a court

One of the first decisions of the Council after the full-scale invasion of Ukraine was to suspend any activity of a number of political parties in Ukraine during the period when martial law would be in effect. Following the Constitution, social life in Ukraine is based on the principle of political diversity, and the State is meant to guarantee the freedom of political activities if such is not prohibited by the legislation (Article 15). Legislation passed by the Ukrainian Parliament prescribes the reasons for the political parties' ban and all procedures for such ban. Yet, such a ban on a particular political party can be sanctioned only by the court, which is directly prescribed by the Constitution (Article 37) and by the Law “On Political Parties in Ukraine”, but not by the Council’s decision. Such a decision taken by the Council is a clear violation of established constitutional principles.

Despite the banned political parties seemingly serving Russia's interests, it is essential that their prohibition is carried out strictly in accordance with the established legislative process and by duly authorized bodies.

III.          Violation of Constitutional Principles

The Constitution prescribes in Article 41  the possibility of expropriation of private property as an exception, but following legislative procedural requirements, with complete compensation of their value or possible further compensation if it happens during a martial law regime. The Constitution requires that the confiscation of private property be done only after the court’s decision. Yet, we see that the Constitution uses two terms: “expropriation” and “confiscation”, the first with compensation and the second without. The Crime Code of Ukraine uses the term “confiscation”, defining it as the forcible and free transfer of property to the state. The special Law “On the transfer, expropriation, or withdrawal of property during the legal regime of martial law or state of emergency” (2013), as we can see from the title, uses different terms but does not use “compulsory” in connection with “withdrawal”.

On May 11, 2022, the Council’s decision to enforce the compulsory withdrawal of property owned by the Russian Federation and its residents in Ukraine contravened the constitutional provisions mentioned earlier. The Council's action to take private property without compensation or judicial ruling deviates from the constitutional requirement for due process in matters of both confiscation and expropriation.

What legal basis underpinned the Council's resolution? According to the decision's wording, the Council invoked the “Law on the Main Principles of Compulsory Withdrawal in Ukraine of Property Rights of the Russian Federation and its Residents” (2022), enacted in the aftermath of the full-scale invasion. This legislation introduces a novel term that amalgamates “compulsory” with “ withdrawal,” seemingly circumventing conventional constitutional rationale. The statute empowers the Council with unprecedented authority to proceed with the compulsory expropriation of any "Russian property" within Ukraine, devoid of compensation or judicial oversight. Such legislative amendments potentially disrupt the balance by granting the president, as the Council's leader, undue additional powers.

IV.         Violation of the separation of powers

The President has further violated the basic constitutional principle of separation of powers by signing numerous directives that ostensibly emanate from the Council but, in reality, bear the President's command. These directives mandate specific actions from government bodies and blur existing lines of authority. While acknowledging the critical importance of the Council's role and mission during wartime, the shift from coordination to direct command poses a substantial threat to the balance of governmental power.

The Council’s decision from December 1, 2022, banning religious organizations affiliated with Russia, effectively directed the Cabinet to draft and submit legislation to Parliament for the ban of certain religious organizations. This directive oversteps the Council's mandate as an independent body, which is to coordinate rather than command. Additionally, the president has the right to legislative initiative and could independently propose such legislation to Parliament. This raises the question as to why it was necessary to route this action through a Council decision and a Presidential decree when a more straightforward approach was available.

Moreover, in a decision dated January 23, 2023, the Council again overreached by instructing the Cabinet to amend a resolution within five years, aiming to regulate border crossings. These actions were unconstitutional not only because they imposed a direct order on an independent body but also because the Constitution specifies that restrictions on the right to free border crossing must be legislated by Parliament, not decreed by the Cabinet.

Conclusion

The full-scale military aggression by the Russian Federation was an extraordinary event that needed extraordinary actions.

However, the Council’s actions on the ban of the political parties and the compulsory withdrawal of property were arguably non-essential for national defense. During times of war, national solidarity, combined with swift and decisive action, is paramount. Yet, they must remain firmly rooted in legal principles. Otherwise, there is a tangible danger of straying from fundamental democratic values and edging towards autocracy—a fate far graver than any wartime adversity and an irreversible detriment even in the aftermath of victory.

Sergiy Panasyuk is a Ukrainian Ph.D. in constitutional law, a professor at Ukrainian-American Concordia University and European University (Kyiv, Ukraine), a Visiting Fellow at Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany), and a former academic consultant of a Judge of the Constitutional Court of Ukraine (2017-2022) and former Lecturer at the Department of Constitutional Law of Charles University (Prague, Czech Republic) (2023-2024).

Suggested citation: Sergiy Panasyuk, ‘The Separation of Powers and Ukrainian Public Policy in Wartime’ IACL-AIDC Blog (19 March 2024) The Separation of Powers and Ukrainian Public Policy in Wartime — IACL-IADC Blog (blog-iacl-aidc.org)