Legal Assessment of the Draft Law on Interpellation

On 18 May 2020, the Draft Law on Interpellation (No 3499) was submitted to the Verkhovna Rada of Ukraine by 72 MPs. This draft law introduces the interpellation procedure into national practices of parliamentary control over the Cabinet of Ministers of Ukraine.  The term "interpellation" in the meaning of the Draft Law No 3499 is quite different from the general understanding of this practice in the constitutional law of European nations. In European tradition, interpellation is a written request of the MP(s) submitted to the head (member) of Government to provide a formal explanation on general or special of governmental policy issues at the session of Parliament. The Drat Law defines the interpellation as the parliamentary review of the activities of any member of the Cabinet of Ministers of Ukraine upon the MPs' request. Such definition causes a terminological confusion since an interpellation process in the Draft Law has been defined through tautology (i.e., "parliamentary demand for interpellation" = literally, "parliamentary demand for demand").

Analysis of the Draft Law No 3499. At least 45 MPs or the responsible committee of the Parliament are granted with the right to initiate an interpellation to any member of the Government, except the Prime Minister. This right is exercised through request the appeal to the Speaker of Parliament, which Speaker is obliged to review within fifteen days from the date of its receipt. If there are no grounds for refusal, the Speaker appoints the interpellation.

A member of the Cabinet of Ministers is obliged to be present at the plenary session of the Verkhovna Rada during the interpellation process against him/her, and also he/she has a right to prepare a response to a MPs’ request. In addition, the Prime Minister of Ukraine also has a right to be present at such session of the Verkhovna Rada and to express his/her position on this issue.

Based on the results of the interpellation, the Parliament is able to declare the work of a member of Government as unsatisfactory. In this case, within 15 days the Prime Minister of Ukraine is obliged to submit to the Verkhovna Rada a motion to dismiss this member of the Cabinet of Ministers (except for the Minister for Foreign Affairs of Ukraine and the Minister of Defense of Ukraine). If such a submission is not submitted, Verkhovna Rada dismisses a member of the Cabinet of Ministers by a resolution. In case of Minister for Foreign Affairs of Ukraine or Minister of Defense of Ukraine, the Verkhovna Rada recommends the President of Ukraine to submit a motion to dismiss either of ministers.

Legal Position of the CPLR. Experts of the CPLR welcome the legislative initiative to optimize the legal regulation of the parliamentary control under para. 13 and 33 of Art. 85 (1), Art. 89 and 113 (2) of the Constitution of Ukraine. The stability of the current semi-presidential system of government in Ukraine depends on the effectiveness of implementation the Parliament's constitutional powers in respect of Government since the Cabinet of Ministers is accountable both to the President of Ukraine and the Verkhovna Rada, as well as it is also under parliamentary control and supervision.

Unfortunately, the media often voices that the Parliament is unable to dismiss separately any minister from the Government. But according to para. 12 of Art. 85 (1) of the Constitution of Ukraine, the Verkhovna Rada has the authority to dismiss any member of the Government (except the Prime Minister), as well as the ministers appointed by the quota of the President of Ukraine even without a motion of the President of Ukraine (Decision of the Constitutional Court of Ukraine dd. 11 December 2007).

Definitely, there are a number of legal flaws and incorrect regulations in the Draft Law No 3499. For example, the new powers vested to the Speaker of the Verkhovna Rada on consideration of the MPs’ request an interpellation with possible refusal is quite inconsistent with the nature of Parliament in Ukraine. Since the Parliament is a collegial body, and the Speaker of the Verkhovna Rada has limited organizational and coordination authorities within, it would be more appropriate to provide the Speaker with powers to submit within a certain period of time the interpellation request to the plenary session of the Verkhovna Rada, but not to consider it individually.

CPPR Proposals to Optimize the Interpellation in the Constitution. The CLPR proposes to carry out a comprehensive constitutional reform and to include the interpellation into the constitutional design. Also, the CLRR recommend reviewing the constitutional procedure for the appointment and dismissal of members of the Government:

• The Prime Minister of Ukraine should be appointed and dismissed by the Parliament (on motion of the President of Ukraine);
• All other members of the Government should be appointed and dismissed by the Parliament (on motion of the Prime Minister of Ukraine);
• Based on the results of the interpellation, the Parliament should adopt only a recommendation to the Prime Minister of Ukraine, not to dismiss a member of Government.

That is why the CPLR recommends the MPs:

• to introduce the interpellation into the national doctrine of parliamentarism, in particular, to review the Draft Law No 3499 with the remarks (para. 5 of the Opinion dd. 2 June 2020) of the Main Scientific and Expert Department of the Apparatus of the Verkhovna Rada;
• to adopt a new version of the Rules of Procedure of the Verkhovna Rada in accordance with the current version of the Constitution of Ukraine, since the procedural regulations of the appointment and dismissal of members of the Government and other officials are outdated and inconsistent with the Constitution;

to install an inclusive parliamentary group for developing a comprehensive constitutional reform in order to improve the mechanism of state power, strengthen parliamentarism, optimize the process of interaction between the Verkhovna Rada, the Cabinet of Ministers and the President of Ukraine.