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182 assignments from the President of Ukraine to the Government (Decree No. 837/2019)
1. CPLR expert opinion
On November 8, 2019, the President of Ukraine issued a Decree “On Urgent Measures for Reforming and Strengthening the State” No. 837/2019, pursuant to which the Head of State instructed the Cabinet of Ministers of Ukraine to take appropriate measures in various areas of public administration (182 orders in total), and gave one assignment to the Ministry of Foreign Affairs of Ukraine and one – to the Legal Reform Commission. The CPLR experts believe that such a Decree was issued in excess of the constitutional powers of the President, and therefore is unconstitutional.
2. Respective authorities counter-point/argument
The Decree was adopted to ensure further implementation of structural economic reforms, the introduction of additional mechanisms to accelerate the socio-economic development of Ukraine, to improve the well-being of the population, the harmonious development of regions, the continuation of the implementation of European standards of living, the strengthening of the state, on the basis of the results of the meeting held on November 4, 2019. The Presidential Decree makes no reference to the constitutional rules that enshrine such powers of the President.
3. CPLR assessment of the authorities counter-point
The Decree of the President of Ukraine does not provide constitutional grounds for adopting this document with reference to the relevant norms of the Constitution of Ukraine. According to Part 3 of Art. 106 of the Constitution of Ukraine, the President of Ukraine issues decrees and orders that are binding on the territory of Ukraine, solely on the basis of the Constitution and laws of Ukraine and with a view of their implementation. An exhaustive list of powers of the President of Ukraine is determined only by the Constitution of Ukraine (in particular, Article 106, Part 1). The Constitution of Ukraine does not envisage the powers of the President of Ukraine to give mandatory assignments to the Cabinet of Ministers of Ukraine or other executive bodies – this is the exclusive competence of the Prime Minister of Ukraine (paragraph 2 of Part 1 of Article 42 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”). As regards the Legal Reform Commission, the President of Ukraine has the right to instruct this body, since, in accordance with paragraph 28 of Part 1 of Article 106 of the Constitution of Ukraine, it was created as an advisory body under the President of Ukraine for exercising the powers of the Head of State.
4. Related legislation/instructions which require the authorities act in a certain manner
Constitution of Ukraine, Law of Ukraine “On the Cabinet of Ministers of Ukraine”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine This is not for the first time when the President of Ukraine issues decrees that go beyond his constitutional powers. Each time, this leads to indistinct separation of state power in Ukraine, as well as undermining the constitutional order. We draw attention to the inadmissibility of unconstitutional actions of the higher authorities in the state with the rule of law. We recommend the President of Ukraine, as a guarantor of the observance of the Constitution of Ukraine, to act solely within the limits of his constitutional powers and to abandon the practice of issuing decrees in excess of powers. We recommend the opposition forces in the Parliament to raise the issue of the President’s unconstitutional decrees before the Constitutional Court of Ukraine.