Elections in Ukraine: not now, but when?

"The difference between a statesman and a politician is that a politician focuses on the next election, and a statesman on the next generation"

Winston Churchill

 

Against the backdrop of a bloody war with the Russian aggressor, the summer-autumn of last year was marked by a political debate regarding the holding/non-holding of parliamentary (2023) and presidential (2024) elections. For a certain time, this discussion even relegated front-line issues to the background. It seemed that for some, the political struggle for power is more important than the struggle for Ukraine's survival in the face of a full-scale Russian invasion.

The reason for the discussion was the terms of parliamentary and presidential elections determined by the Constitution of Ukraine. According to the national Basic Law, the next parliamentary elections were to be held on the last Sunday of October 2023 (Part 1 of Article 77), and the next presidential elections were to be held on the last Sunday of March 2024 (Part 5 of Article 103).

 

Not now

This discussion revealed a rather non-standard attitude of various political forces to the predetermined deadlines for the renewal of power. Opposition forces, which usually seek early elections, this time, saying that there is a war in the country, announced that they are categorically against holding regular elections, both parliamentary and presidential. Apparently, they were guided by the fact that their chances in the elections would be much higher later.

Instead, as is clear from everything, the current government wanted to hold elections (parliamentary as well, but primarily presidential) now, because it understood that then – after the war – its chances of maintaining the existing positions of power would most likely be much lower. However, the public position of its leading representatives on this issue was not consistent and unambiguous.

Thus, the head of the Verkhovna Rada of Ukraine, Ruslan Stefanchuk, who actually started this discussion in July last year, said that the Constitution of Ukraine does not prohibit holding elections during wartime, so soon this issue "will be brought up to date." Later, in October, he highlighted certain legislative inconsistencies regarding the holding/non-holding of presidential and parliamentary elections.

President Volodymyr Zelenskyy also did not speak out clearly. Last August, he declared his willingness and desire to hold elections "within the year", noting that the 2024 elections would require legislative changes and additional funding if the war continued. And at the beginning of November, he said that holding presidential elections in the country during the war is not the right time, and therefore this topic should be closed for a certain time.

It seems that the authorities were forced to abandon the idea of holding elections "within a year". When making such a decision, the authorities took into account, in particular, the mood of society, which, according to the results of sociological surveys, clearly indicated a negative attitude towards elections in wartime conditions. In addition, 100 public organizations made a statement about the impossibility of holding elections in Ukraine "in the conditions of an active phase of war", saying that "elections and full-scale war are incompatible." 

The president's position ("elections are not on time") was immediately supported by Ukraine's international partners. And a little later, the representatives of the parliamentary political forces signed a memorandum, which "agreed that the future free and fair national elections (parliamentary, presidential) are held after the end of the war and the end of martial law with enough time to prepare for the elections (at least six months after the end of martial law)".

This is how a general consensus (of the current government, the opposition, society, foreign and international partners) was allegedly reached regarding the inexpediency of elections during martial law/war.

Therefore, the issue of holding presidential and parliamentary elections in the short term has been removed from the political agenda. But can we say that the issue of holding/not holding elections has been finally resolved? Probably not, because for now it is only put on hold – the principle agreement reached as a result of the consensus consists only in the fact that the elections will be held "not now".

Considering the position of our state and the interests of the warring country, this is absolutely correct today. Because holding elections in Ukraine now would essentially be the opening of a second front against one's country. Apart from the obvious security risks and the impossibility of adhering to democratic electoral standards, elections in the current wartime environment are a political rift in the country from within. This is a shift of the main attention from the struggle with the external enemy to the political struggle among themselves. This is a diversion of efforts from solving the urgent problems of the front. This is actually the cessation of international activities to receive vital military, financial and other assistance from partners. This is a risk of unbalancing the already not quite effective state administration in all spheres. After all, this is what the Russian Federation is looking for and what it is trying to achieve by all possible means: to sow socio-political discord, to radically divide our society, to disorganize the administration of a state that is waging a defensive war.

 

If not now, then when?

Behind the scenes, there remained, at first glance, not too topical for today, but in the long term, a critically important question: when should/can the next elections be held after all, when they will be "on time"? Is the wording that the next parliamentary and presidential elections will be held "after the end of the war and the end of martial law" sufficiently defined?

Thus, President Zelenskyy's position regarding the fact that the holding of presidential elections in the country during the war (the state of which has not been legally declared for certain reasons) is out of time and does not provide an unambiguous answer to the questions posed.

The same applies to the mentioned position of the parliamentary political forces, which "agreed" that the future parliamentary and presidential elections will be held "after the end of the war and the end of martial law" with enough time to prepare for them. That is, elections can be held at least six months after the end of martial law.

Public organizations that made a special appeal to the parliament not to hold elections "during war" emphasize the impossibility of free formation of political will "in the conditions of an active phase of war" (that is, holding elections during war is still allowed?).

Society in general is also against elections (especially presidential) during wartime. According to the survey by the Razumkov Center, conducted at the request of ZN.UA, 66.9% of respondents are sure that the powers of the current president should be extended until the end of martial law. At the same time, the majority of respondents (54.4%) believe that Volodymyr Zelenskyy's mandate should be extended for any term until the end of martial law, no matter how long it lasts.

The fact is that no one is ready to answer what should be considered the "end of the war" (as well as what should be considered a "victory") and when the indisputable conditions for the "end of martial law" will come. It is not disputed that martial law and war are different legal categories (the Constitution refers to both state of war and martial law). Martial law can be introduced both in the case of armed aggression and in the case of a threat of an attack on the country. War is always a real armed struggle with the conduct of hostilities. Therefore, martial law can be introduced and exist even in the absence of war. On the other hand, in the presence of a full-scale war, the state of war may not be officially declared (as now), but everything is limited to the introduction of martial law. Although Article 4 of the Law "On the Defense of Ukraine" establishes that in the event of armed aggression against Ukraine or a threat of attack on Ukraine, the president makes a decision to introduce martial law, and also submits a motion to declare a state of war to the Verkhovna Rada of Ukraine. From the moment of the declaration of a state of war or the actual beginning of hostilities, war time begins, which ends on the day and time of the end of the state of war. Therefore, the issue of the official declaration of a state of war and the relationship between such a state and a state of war requires separate thorough consideration. The case is this way because it involves many military, international, political and legal aspects, including responsibility for launching and waging an aggressive war, violating the laws and customs of war, and others. 

The first signal that the issue is not resolved already came from President Zelenskyy, who in an interview with The Economist (January 1, 2024), expressing his position on mobilization, said: "Let's be honest: we have switched to domestic politics." And he noted that if the focus on domestic politics remains, it will be necessary to "schedule elections, change laws and the Constitution of Ukraine." And just the other day, to the question of a correspondent of the British TV channel Channel 4 News: "If you could hold elections...?" Volodymyr Zelenskyy replied: "If I could do it tomorrow, I would do it tomorrow."

The Constitution of Ukraine and relevant Ukrainian legislation in force prohibit holding elections under martial law (at the level of the law – all elections, at the level of the Constitution of Ukraine – parliamentary elections). But what if the war drags on for a long or even indefinite time? And if during the war there is an objective need to hold presidential or parliamentary elections? The possibility of the occurrence of such situations, taking into account numerous life factors, seems obvious and does not require additional justification.

Moreover, will everyone agree that the war is over if not all Ukrainian territories are deoccupied at the time of the hypothetical announcement? If, in the worst-case scenario, Donbas and Crimea remain under Russian control, will everyone agree that the moment of victory has come? Will it be easy to convince the families of those who died for the Ukrainian land that no one will fight for it in the future?

It should be recognized that the complete consolidation of Ukrainian society in relation to the fact of the end of the war is possible only after the complete de-occupation of Ukraine. And it can take much longer than we all would like. A war, in the broadest sense of the term, can last a long time, too long to associate the start date of the next presidential and parliamentary elections with its end.

Therefore, for the sake of political and legal certainty, the only legal factor for future elections of the highest representative bodies of state power should not be the end of the war, but the end of the actual legal regime of martial law. And there should be a clear definition in this, because confusion with these close, but legally non-identical concepts gives rise to discussions that should not exist at all.

And the end of martial law – permanent or temporary (for the duration of the elections) – should take place as a result of the emergence of favorable (or rather – acceptable) conditions for the exercise of the free will of voters, no matter where they are – in Ukraine or abroad.

And what is important is that all the above-mentioned participants in the political process must agree with this: state authorities, the most influential parties, public organizations and broad sections of Ukrainian society.

That is, from a legal point of view, holding elections during martial law is impossible. Holding elections during the war with Russia (which can last only God knows how long) may turn out to be an alternative option, which should be prepared for today.

Such elections can and should be held in the event of a truly objective and critical need for it and in the presence of appropriate security and other circumstances that would maximally ensure free expression of will and compliance with democratic election procedures.

 

Legitimacy of the authorities until the next elections

The question of the legitimacy of the Ukrainian government without holding elections (its re-election) in one form or another is periodically thrown into the information space, mostly in the sense that Russia (Putin) will not recognize the legitimacy of the Ukrainian parliament and the president after the expiration of the constitutional term of their powers.

As the editor of ZN.UA's politics department, Inna Vedernykova, noted, "the topic of the elections in Ukraine and the legitimacy of the government will be emphasized by Russia and Republicans who support Trump, especially if the war continues. The Russian Federation will make its main winning bet already in the spring on the overdue and therefore illegitimate Ukrainian president, while the Russian dictator will easily take part in the elections. A new twist from enemy propaganda can finally unbalance us or, on the contrary, become a reason to look for a preventive asymmetric solution."

Oleksii Danilov, Secretary of the National Security and Defense Council of Ukraine (NSDC), said the other day that Russia is starting a huge campaign to discredit the Ukrainian government due to the fact that it is supposedly illegitimate due to the failure to hold elections.

Of course, it is not worth paying special attention to the Russian dictator in this matter. After all, even now Putin does not call the Ukrainian government anything other than the "Kyiv regime" or the "Kyiv junta", and Medvedev recently called Ukraine an "artificial country". In addition, he stated that no matter who is at its head, "it will not add legitimacy and legal independence to his "country".

However, it should be understood that Russia will actively use speculations about the illegitimacy of the Ukrainian government at the international level. And that is why it is necessary to have strong legal arguments ready to refute them. And we have them, since the postponement of the election dates will by no means mean that the parliament and the president are legally "overdue".

According to the Constitution of Ukraine (Part 1, Article 76), the term of office of the Verkhovna Rada of Ukraine is five years.

At the same time, the Constitution of Ukraine (Part 4, Article 83) contains a special provision stating that "in the event of the expiration of the term of office of the Verkhovna Rada of Ukraine during the period of martial law or a state of emergency, its powers shall be extended until the day of the first meeting of the first session of the Verkhovna Rada of Ukraine elected after the abolition of martial law or a state of emergency in the country." 

Therefore, according to this prescription, during the period of martial law (as now) or the state of emergency, the powers of the Verkhovna Rada of Ukraine are extended until the time when a new composition of the parliament is elected after the cancellation of the state of martial law or emergency. Such a prolongation does not require anyone's decision because it is carried out automatically in accordance with the imperative prescription of the Constitution of Ukraine.

And this means that from a formal and legal point of view: 1) parliamentary elections cannot be held during martial law – no matter how and who wants it; 2) The Verkhovna Rada of Ukraine of the current composition will be a legitimate legislative body until the martial law continues in Ukraine and after that a new composition of the parliament is not elected; 3) during this time (no matter how long it lasted), no one can question the legitimacy of the current parliament, since its powers have been extended at the highest legal level, namely the constitutional one.

At the same time, the Constitution of Ukraine does not contain a special norm that would provide for the extension of the president's powers during a state of war or emergency. It is possible that during the writing of the Constitution of Ukraine, politicians simply "forgot" to include such a provision in it. This became the basis for fierce discussions about the possibility and expediency of holding presidential elections in 2024.

Although this point is compensated by other norms of the Constitution of Ukraine.

Despite the fact that the Constitution (Part 1, Article 103) establishes a five-year term of office for the president, it provides (obliges!) the head of state to exercise his powers beyond the specified term.

The Constitution of Ukraine defines the bodies of state power, which according to their powers and/or functional purpose are the only ones in the state (decision of the Constitutional Court of Ukraine No. 5-decision/2019 dated June 13, 2019). By virtue of his status (head of state and Supreme Commander-in-Chief of the Armed Forces of Ukraine), powers and functional purpose, such state bodies include the president, who is an integral and one of the key elements of state power in Ukraine. This means that for the proper functioning of state power on constitutional grounds, ensuring the existence and preservation of the state of Ukraine, the powers of the president must be exercised continuously (permanently).

At the same time, one should take into account the peculiarity of the institution of the presidency in Ukraine, which is that the Constitution of Ukraine does not provide for the possibility of replacing the president in his position (the existence of the position of vice president). In addition, it does not provide for the fulfillment of the powers of the president in case of his temporary absence (vacation, illness, etc.) or the end of the term for which he was elected. Therefore, no one can completely replace him, substitute him or exclude him from the system of state power for a certain time. 

The performance of the duties of the president – and even then only for a certain period (until the election and assumption of office of the new president) and to a limited extent — can be entrusted to the head of the Verkhovna Rada of Ukraine only in case of early termination of the powers of the president in accordance with Articles 108, 109, 110, 111 of the Constitution (Article 112 of the Constitution of Ukraine).

This means that no one, except the president himself, can fulfill his powers both within the five-year term of his stay in this position, and after the end of this term. 

This conclusion is based on the fundamental principles of the functioning of state power in Ukraine (in particular, the principles of institutional continuity and stability) and specific constitutional norms.

The constitutional prescription regarding the five-year term of office of the president must be considered in direct relationship with the provision of Part 1 of Article 108 of the Constitution of Ukraine, which establishes that "the President of Ukraine shall exercise his powers until the appointment of a new President of Ukraine."

Therefore, the specified norm of the Constitution of Ukraine not only enables, but also obliges (imperative – "performs"!) the current president to exercise his powers until the moment when he is replaced in office by the newly elected president.

After all, the constitutional basis for prolonging the powers of the president and the parliament can also be the objective impossibility of the people realizing their sovereign right to elect representative bodies of state power in the conditions of war.

It should be noted that in domestic constitutional and legal practice, the president's performance of his powers repeatedly "did not fit" into the five-year term. Thus, during his second term, President Leonid Kuchma served as head of state for almost two months longer than the five-year term of office prescribed by the Constitution of Ukraine. In turn, Viktor Yushchenko's performance of the powers of the president lasted a month longer than the term established by the Constitution of Ukraine. Instead, Petro Poroshenko's presidential term lasted two weeks less than the term of office of the head of state defined by the Constitution of Ukraine.

 

Brief conclusions

The consensus political decision to refuse to hold parliamentary and presidential elections at the current stage of the Russian-Ukrainian war is the only correct one. There are no conditions for such elections today, there is no objective need for them, they would be detrimental to the country. Currently, all state, political and social efforts should be focused on repelling armed Russian aggression and achieving victory over the enemy. The political struggle for power, which is actively ongoing in a latent form, must be stopped.

The current parliament and president have every constitutional reason to continue exercising their powers without holding elections throughout the entire period of martial law. Therefore, there is no legal reason to doubt their legitimacy during this period.

At the same time, Ukrainian politicians, relevant state institutions and civil society should declare to the whole world their internal unanimity regarding the absence of any doubts about the legitimacy of the parliament and the head of state before the next elections. It must be assumed that elections are not needed to confirm the legitimacy of the national government (there is no legal need for this), but to ensure the democratic foundations of the functioning of the Ukrainian state, the continuity and stability of the formation of its representative bodies.

It should be agreed that the next regular presidential and parliamentary elections should take place regardless of the duration of the war with Russia. In addition, the presidential elections must be held as soon as there will be acceptable conditions for ensuring the electoral rights of Ukrainian citizens, for which at a certain moment the legal regime of martial law will be terminated (finally or temporarily) without stopping the further determined struggle of the Ukrainian people for their land, freedom and democracy. Because as long as imperial Russia exists, there will be a deadly danger for Ukraine. 

Read this article in Ukrainian and russian.