Presidents above the Constitution

24 September 2020
Presidents above the Constitution
Home > Analysis > Presidents above the Constitution

During the last year, the Constitutional Court ruled unconstitutional several legal provisions of the laws that expanded presidential powers. On the one hand, these rulings have been subjected to a storm of criticism because they first threatened the work of the independent regulatory agency on energy and public utilities and later — the work of the National Anti-Corruption Bureau.

On the other hand, decisions made by the Court are a wakeup call: how people in power can defy the Constitution and at the same time demand from Ukrainian citizens to obey the law? The Constitution is a primary guideline and a safeguard that prevents the state from becoming a dictatorship. History provides us with many examples where countries failed to build a working system of checks and balances and thus failed to establish the rule of law for their people.

When government bodies ignore the Constitution, they threaten to destroy not only the legal order but the very existence of the state. That is why we decided to analyze in detail how the Constitution of Ukraine restrains the presidential authority and how Ukrainian presidents have tried to break free from these restraints.

Democratic power cannot be limitless

Constitutions emerged as a tool to protect people from the arbitrary rule of the government. That is why the constitutions of democratic countries restrict the authority of state bodies and separate powers into three branches. This separation is enforced to prevent each branch or top officials from taking over the country by accumulating enough political or legal power to establish a dictatorship.

The system of checks and balances ensures the transparency of decision-making. The parliament as a representative of the people oversees the work of the government — an employee hired to execute the people’s will.

In Ukraine, the principle that prevents the seizure of power and establishes the system of checks and balances is the prohibition for presidents and parliaments to have powers outside those defined by the Constitution.

That means that neither the Verkhovna Rada nor the President can expand their powers via laws or any other acts of legislation. They have to exercise their powers only within limits defined by the text of the Constitution.

Human nature, though, makes us always want more, especially when it comes to power and money. That is why the guarantors of the Ukrainian Constitution are dissatisfied with the limited authority it provides. The heads of the state, as a rule, tried to violate the Constitution in their pursuit of expanding their powers. Ukrainian presidents have found several tested ways to get more powers and bypass the Constitution. Let us discuss each of them.

Not in the Constitution? Try a law!

During the last decade, Ukrainian presidents by backroom dealings and political compromises constantly expanded their powers and gained more and more influence on our lives.

Occasionally, the question of presidential powers is reviewed in the Constitutional Court. For example, a year ago the Court ruled unconstitutional provisions from the law on the National Commission for State Regulation of Energy and Public Utilities. These provisions gave the President the authority to appoint two members of the committee for selection of the NCSREPU members, approve the candidates selected by the committee by his decrees and fire them at will. Recently, the same fate befell the President’s decree on appointing Artem Sytnyk the NABU Director and several provisions from the law on the Anti-Corruption Bureau.

The Constitution does not grant the President the authority to create the Anti-Corruption Bureau, appoint his representatives to the committee for selection of the NABU Director, or approve a selected candidate. The same is true about appointing the auditor to evaluate the NABU’s work or approving the provision on the Civil Oversight Council and the procedure of its formation. In all cases mentioned above, the Court indicated that “the powers of the President of Ukraine and the Verkhovna Rada are defined only by the Constitution of Ukraine and cannot be expanded by a law or any other act of legislation.”

The Constitutional Court, though, cannot start reviewing a law at will. That is why presidents can enjoy their unconstitutional powers for years — before someone officially challenges the fact and appeal to the Constitutional Court. For example, some of the provisions from the law on the National Anti-Corruption Bureau were ruled unconstitutional after five years since the law had been adopted. During all this time, the President exercised his unconstitutional powers to the full.

It is worth mentioning that sometimes the presidential authority is expanded not because it makes any practical sense, but just because it can be done. For example, the fact that the NABU is created by the President is a mere formality since the Bureau was de facto created by the law anyway. However, every elected official tries to make an impression that he or she takes part in the fight against corruption — a sacred fight for Ukrainian voters — and get some political scores. Even if it all is about cutting the red ribbon. That is why our Constitution often falls victim not only to lust for power but also to plain election campaigning.

A bit of unconstitutionality in law enforcement

The President is responsible for the state defense. That is why the Constitution gives him the power to grant top military grades and issue decrees mandatory for the defense sector. He also appoints the high command of the Armed Forces of Ukraine and other military units.

Within the state defense system among military units like the National Guard and the Foreign Intelligence Service there are also the State Border Service (that belongs with law enforcement) and the Security Service (a state body with special status and law enforcement powers). Although both agencies mentioned above are a part of the military and not law enforcement, the Constitution does not grant the President the authority to appoint their top personnel except for the Head of the Security Service (who can be appointed and dismissed only with the consent of the Verkhovna Rada). That is why top officials of these bodies should be appointed by either the Cabinet, the minister, or their own heads.

Ukrainian presidents, however, managed to accumulate more powers here than they should have. Ordinary laws give the President the authority to appoint and dismiss deputy heads of the SSU, heads of departments of the central apparatus, and heads of SSU oblast organizations. The President also has a decisive influence on who will be appointed as the head and deputy heads of the Border Guard Service.

With such powers, the President has total control over these government bodies. As a result, instead of protecting the state, they become mere tools to deal with political opponents and business rivals. Political appointments ruin the possibility for career advancement for professionals: for appointing the all-powerful heads of SSU departments, personal loyalty to top officials has more weight than real skills in fighting corruption or protecting the state economy.

Presidential dissociative identity disorder

In addition to laws that give Ukrainian presidents more power than the Constitution grants, there are other, more peculiar laws. For example, the law on Defense of Ukraine provides a foundation for presidential dissociative identity disorder. It provisions that the authority of the President is defined by the Constitution but his powers as the Commander in Chief are defined by the laws of Ukraine.

The paradox here is that the President and the Commander in Chief are the same person. We do not cast separate ballots for the President, the Commander in Chief, and the guarantor of the Constitution and state sovereignty. All these titles are mere aspects of the same position. Moreover, the President cannot have any other jobs because that is strictly prohibited by the Constitution.

It is important to understand that the President has more than enough powers to exercise his functions related to defense and security. He appoints top military officials and grants top military grades. The Minister of Defense is under him, presidential decrees are mandatory for execution. Thus, there is no reason to resort to legislative scheming.

As for now, this provision has not produced any significant consequences, but one day it can be used, for example, for banning the Parliament from any control over the army and making an attempt to usurp the power with the help of the military.

President is above the Constitution

When neither the Constitution nor the unconstitutional laws provide the President with the power he wants, but he still wants it really bad, there is another way: unconstitutional decrees. Such a strategy was not unheard of under the previous presidents, but under Volodymyr Zelensky it has developed into a legislative pandemic that threatens to ruin the legal order as COVID-19 has ruined our daily habits.

For example, in November of 2019, the President has given the Cabinet near hundred orders that covered issues from amber mining and the state monopoly on alcohol production to preparing news standards for media. Just a month ago, he wanted the Government to consider the possibility to celebrate religious holidays of Roman Catholics, Muslims, and Jews as public holidays.

Although many of the ideas proposed in his decrees look all right, he has no authority over the Cabinet and cannot assign it any tasks. First, the Cabinet is the highest executive body and it has exclusive powers to form state policies on using the natural resources of the state or regulate state monopolies. Second, the Constitution grants the President no authority to give orders to the Cabinet.

Moreover, none of the decrees contained any actual action plans but instead ordered the Government “to sort out” some problems. Thus, the President’s intention was solely to appear as a reform figure in the public’s eyes.

The problem with presidents violating the Constitution has even worse consequences than violations themselves. An even bigger issue is that they become so routine that Ukrainians started to lose faith in the order of law. It is easy to see if we look at the critically low trust in public institutions. According to the polls, the best results have the church and volunteers while among state institutions only the army, the State Emergency Service, and the State Border Service are perceived as organizations that protect their citizens. As for other state institutions, most Ukrainians have a recurring question why should they pay for something that causes more problems than solves.

With such a low level of trust from their own people, no authority can work properly. Even the best intentions and reforms will crash against the distrust from people accustomed to been fooled by the officials they elect. In the end, an average teacher, lawyer, or police officer has hard times convincing members of their communities that it is necessary to play by the rules. People watch the news and see that the Constitution and laws are not binding when it comes to the ambitions of presidents and members of the parliament.

The sad truth is that no state institution can restore faith in the rule of order. You cannot put a police officer over each citizen, you cannot even control these police officers. If we want a viable state, we need to nurture the feel of law and order in our citizens. This process has to start with President abiding by the Constitution. He is the symbol of the state and millions look up to him. The Constitution is the foundation of the legal order and, consequently, of peace and harmony in society. Ukrainian presidents have to start abiding by the Constitution instead of trying to circumvent or ignore its provisions.