Combining a mandate and a ministry: behind the brackets of the Constitution
MPs propose to allow people to combine the mandate of an MP with work in the government. That is, in essence, to combine work in two branches of government. Draft law No. 13304 with this proposal was submitted in late May by MPs Halyna Tretyakova, Vitalii Bezghin, Andrii Klochko, and several other representatives of the Servant of the People party.
The idea of combining the two branches of government is not new; MPs and government officials combined their work in the days of Yanukovych. Even after the Revolution of Dignity, politicians made considerable efforts to preserve a loophole for themselves to return to parliament after resigning from a government position. Because work in the government can end very quickly, they kept the mandate as a political fallback.
For example, MPs from Batkivshchyna and Svoboda, who were elected in the wake of Maidan, did indeed combine their work in parliament with their official positions. At the time, acting President Oleksandr Turchynov said:
These words, in particular, referred to Deputy Prime Minister Vitaliy Yarema. The level of political culture that the part-time MPs were trying to preserve was unacceptable to citizens. Therefore, in April 2014, people picketed the Parliament demanding that the part-time MPs resign. They were called “two-headed trolls”.
Not even a few years after Turchynov’s statement, MPs submitted an initiative to amend the Constitution of Ukraine to block such concurrent employment (Article 78). The bill was co-authored by dozens of MPs, including those who came to power in the wake of the Revolution of Dignity and were Euro-optimists, such as Mustafa Nayem and Serhiy Leshchenko. But this draft law was never considered, and no one changed the Constitution.
Now, the co-author of the new draft law, Vitaliy Bezgin, asked voters on his Facebook page about the possibility of combining the mandate of an MP with work in the government.
Opinions were divided, and critics made valid points, including the impossibility of combining the mandate of a local council member with work in the executive committee.
In fact, there was already a practice when a mayor elected as a member of parliament combined both positions for years. For example, Ihor Kolikhaiev, who was elected mayor of Kherson in 2020, remained a member of parliament because the parliament did not deprive him of his powers. Therefore, he could vote at meetings of both the Kherson City Council and the Verkhovna Rada if he wished.
Opponents of such an initiative refer to the provisions of the Constitution and Montesquieu’s principles of separation of powers into legislative, executive and judicial, which should be a safeguard against usurpation of power. In the end, in our cynical present, principles usually do not stand in the way of realizing the current interests of political elites. For example, to which branch of government should the president or, more specifically, his office be attributed? But this is a topic for a separate discussion.
At the moment, a more compelling argument may be the inconsistency of the provisions of the draft law with the Constitution.
The authors, however, point out in the explanatory note to the draft law that “the current version of Article 3 of the Law of Ukraine “On the Status of a Member of Parliament of Ukraine” embodies the legal position of the Constitutional Court of Ukraine, set out in Decision No. 14-rp/2002 of July 4, 2002, according to which the combination of a parliamentary mandate with holding positions in the executive branch, in particular in the Cabinet of Ministers of Ukraine, was recognized as contrary to the principle of separation of powers. At the same time, the current Constitution of Ukraine does not explicitly prohibit a member of the Ukrainian Parliament from being a member of the Cabinet of Ministers, and the legal position of the Constitutional Court itself was formed in circumstances and political system that differ significantly from the current conditions.”
The main argument in favor of the legislative change is that with the entry into force of the Law “On Civil Service”, the positions of members of the Cabinet of Ministers of Ukraine were excluded from the list of civil service positions. As well as deputy ministers and heads of local administrations, since they are not appointed to the civil service in accordance with the general procedure. Therefore, the authors of the draft law classify these positions as political. At the same time, they refer to the practice of many European countries, where the concurrent office of MPs and members of the government is permissible.
Since, given Ukraine’s European aspirations, the reference to the practice of the EU countries seems to be a serious argument, it is worthwhile to carefully consider the constitutional norms in these countries. One should immediately be cautious about the United Kingdom and Canada, mentioned in the explanatory note. It is true that only members of parliament, i.e. those appointed by parliament itself, can be members of the UK government. But at the same time, the almost thousand-year history of parliamentarism has developed reliable checks and balances to avoid authoritarianism. And the main safeguard against usurpation of power is the judiciary, which is based on customary, case law and on which the executive branch has no real leverage.
In other countries, the concept of part-time work is viewed differently, but the rule is that only one position is paid, even if there is part-time work. A direct prohibition on receiving additional income in addition to the main job is observed in most EU countries for members of either the government or parliament, or both.
Although, for example, in Lithuania and Latvia, which are parliamentary republics, i.e. more protected from the virus of authoritarianism, ministers are also parliamentarians, i.e. the positions can be combined. However, the more common practice is not dual office holding, but substitution or delegation, i.e., simultaneously holding positions in the government and parliament. This position is most clearly stated in the Constitution of Estonia. It is worth quoting it in full:
“Article 63. A member of the Riigikogu (Parliament of Estonia – Y.G.) shall not hold any other public office. For the period of his or her term of office, a member of the Riigikogu shall be exempt from military service.
Article 64. The powers of a member of the Riigikogu shall be terminated at the moment of his/her appointment as a member of the Government of the Republic and shall be resumed upon his/her dismissal from the duties of a member of the Government. The powers of a member of the Riigikogu shall be terminated early 1) if he/she takes up another public office; 2) upon entry into force of a court verdict of guilty against him/her; 3) if he/she resigns in accordance with the procedure established by law; 4) if the State Court establishes his/her long-term inability to perform his/her duties; 5) in case of his/her death.
In the event of suspension or early termination of the powers of a member of the Riigikogu, his/her place shall be taken by a reserve parliamentarian in accordance with the procedure established by law. A reserve parliamentarian shall have all the rights and obligations of a member of the Riigikogu. When the powers of a member of the Riigikogu are restored, the powers of the reserve parliamentarian are terminated.”
The norm of temporary performance of duties of a member of the government is also contained in the Constitutions of France, Slovakia, Romania, and Portugal. In Poland, members of the government can be heads of parliamentary committees, but they cannot be ministers at the same time, i.e., directly perform government functions.
The Constitution of Ukraine explicitly prohibits the concurrent employment of members of the Cabinet of Ministers of Ukraine, heads of central and local executive authorities (Article 120).
Article 120. Members of the Cabinet of Ministers of Ukraine, heads of central and local executive authorities have no right to combine their official activities with other work (except for teaching, research and creative work outside of working hours), or to be members of the governing body or supervisory board of an enterprise or organization aimed at making a profit.
As for MPs, Article 78 prohibits them from holding public office and other paid positions.
Article 78. People’s Deputies of Ukraine shall exercise their powers on a permanent basis.
People’s Deputies of Ukraine may not hold any other representative mandate, be in the civil service, hold other paid positions, engage in other paid or entrepreneurial activities (except for teaching, research and creative activities), or be a member of the governing body or supervisory board of an enterprise or organization aimed at making a profit.
The requirements for incompatibility of the deputy mandate with other activities are established by law.
The totality of the provisions of these articles of the Constitution actually identifies few positions that can be held by an MP, and without compensation. They cannot be members of the government and heads of local state administrations, heads of central executive bodies. Even if we assume that political positions are those where the appointment is not made according to the procedure established for civil servants, then these can only be… deputy ministers. This is a dubious bonus for MPs, given that deputy ministers are the ones who have the biggest workload.
It should be noted that the above-mentioned draft law attempts to define the types of teaching, research and creative work more clearly, but in a rather original way. They are defined as compatible with the deputy mandate, but at the same time, “holding positions in the executive branch that do not belong to civil service positions, in particular, the position of the Prime Minister of Ukraine, First Vice Prime Minister, Vice Prime Minister, Minister, First Deputy and Deputy Minister, and other political positions defined by law” is added. And the icing on the cake is that such activities can be carried out both on a paid and pro bono basis.
It is this possibility of working for free as a prime minister, minister or other political office that opens up the possibility for MPs to combine positions without the risk of losing their mandate. After all, Article 78 of the Constitution prohibits them from doing so only on a paid basis. If there is no payment, there is no obligation to resign or give up the mandate.
Of course, Article 120 explicitly prohibits members of the government from holding part-time positions, even for free. But it prohibits this in the same way that dual citizenship was once prohibited. Formally, it is not possible, but there is no mechanism to dismiss or terminate the part-time job. So it’s either political responsibility at the polls or the basis for another Maidan.
The constitutional and social vulnerability of the draft law is high enough for the prospect of its adoption in the proposed version. However, the question remains: can the idea of involving MPs in government decision-making be transformed into delegation, similar to that in the EU? It is worth noting that the possibility of a temporary stay in the position of a member of the government with a return to the session hall after losing or leaving this position is not regulated by the Constitution of Ukraine. However, on the other hand, in case of temporary replacement by another candidate for deputy on the list of the latter, the deputy cannot be deprived of his or her deputy mandate, as there is no such ground in Article 81 of the Basic Law. In other words, if an MP is delegated to the government, his or her seat in the Verkhovna Rada should remain occupied, not vacant. And this should be regulated by law.
…In fact, the problem that the draft law should solve is not so much the need to synchronize the policies of the government and the parliament as to create certain guarantees for MPs delegated to the government by the Verkhovna Rada. After all, in the presence of an alternative decision-making center, including personnel decisions, such as the office of the president, the position of minister looks very uncertain. In fact, this deprives him of the opportunity to independently shape the policy of the ministry entrusted to him, as such freedom of action may not be liked in the president’s office, which usually ends in resignation. This is regardless of the name of the president himself. In the case of a reserved MP seat, the prospect of staying in politics remains even after leaving the executive branch.
Be that as it may, the emergence of such an ambiguous legislative initiative forces us to look at the system of government organization from a new perspective, to rethink power structures that at first glance seem unquestionable.
Specially for “Dzerkalo Tyzhnia“
