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Political Points for 19 – 26 November 2018

26.11.2018

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

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Imposition of martial law for 60 days makes it impossible to hold the next regular presidential election


1. CPLR expert opinion

At the night of 26th of November, the National Security and Defense Council of Ukraine decided to suggest the President to impose martial law for the period of 60 days. The Council concluded that it was necessary to impose a special legal regime in Ukraine in order to create proper conditions for dealing with the armed aggression, ensuring national security and mitigating threats to independence and territorial integrity of Ukraine. The President of Ukraine at the very same moment addressed the Parliament with the suggestion to impose martial law in Ukraine for the period of 60 days. The Speaker of the Parliament convened an extraordinary session of the Parliament scheduled for 16.00 on the 26th of November. Imposition of martial law for the period of 60 days will make it impossible to launch the election campaign of the next presidential election which is scheduled to start at 31st of December (see article 17 of the Law of Ukraine “On Election of the President of Ukraine”).

During martial law presidential election is forbidden, and in case when the President’s term of office ends during martial law, the President’s powers shall be prolonged until the newly elected President elected after lifting of martial law takes the office (articles 11 and 17 of the Law “On the Legal Regime of Martial Law”).

Having issued the decree on the imposition of martial law the President of Ukraine de facto initiated the suspension of the next regular presidential election. This decision may lead to domestic tension and will certainly be used by the President’s political opponents as a pretext for allegations in the usurpation of power (particularly in the context of the current preferences of voters).

The Centre of Policy and Legal Reform suggests reducing the term of martial law to 30 days. This will allow for creating of conditions for dealing with the armed aggression, ensuring national security and mitigating threats to independence and territorial integrity of Ukraine while at the same will not lead to suspension of the regular presidential election.

2. Respective authorities counter-point/argument  

The whole situation is changing rapidly, therefore, there are no counter-arguments so far. The President of Ukraine and the National Security and Defense Council of Ukraine did not justify the necessity to impose 60-days martial law.

3. CPLR assessment of the authorities counter-point  

Imposition of the 30-days martial law will disable any possible speculations that the President might use the imposition of martial law as a tool for promotion of his political interests.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, paragraph 31 of article 85, paragraph 20 of part 1 of article 106.

Law of Ukraine “On Legal Regime of Martial Law”.

Law of Ukraine “On Election of the President of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

CPLR recommends to the Verkhovna Rada of Ukraine to change during its extraordinary session on 26th of November the period of martial law from 60 to 30 days. According to the Constitution of Ukraine and article 190 of the Rules of Procedures of the Verkhovna Rada, the Parliament has a right to make changes to the text of the decree submitted by the President.