Ukrainian Prime Minister Denys Shmyhal ordered the drafting of a bill that would let the president declare a state of emergency in the country – without needing parliamentary approval. And he went a step further at a meeting on March 18, suggesting that government bodies and agencies could “delegate” power to each other. But these suggestions have one core flaw – they would violate the Ukrainian Constitution.
We take a look at what these emergencies mean, and how exactly the PM’s suggestions would violate the law.
What exactly is an “emergency situation”?
To answer that question, it’s first necessary to understand that Ukrainian legislation has four, legally-set statuses for government operations:
1. Daily operations
2. Heightened readiness
3. Emergency situation
4. State of emergency
Currently, emergency situations have been announced in three regions of Ukraine due to the coronavirus – Chernivtsi region, Zhytomyr region, and Kyiv region.
The emergency situation is defined in Ukraine’s Civilian Defense Code. It calls emergency situations an “interruption of people’s usual activities and living circumstances, caused by an accident, catastrophe, epidemic, or act of god, which has led or can lead to human and material loss or the infection of people and animals.” An emergency situation is invoked by the Cabinet of Ministers.
The last time an emergency situation was called was in 2015, under the government of Arseniy Yatsenyuk, in the Donetsk and Luhansk regions – this was done instead of declaring open war with Russia.
Depending on the size, economic damage, loss of life, and other factors, emergency situations can be divided into four different levels of emergency, from largest to smallest: nationwide, regional, local, and object.
Emergency situations do not restrict citizen’s rights, but instead are focused on mobilizing government resources.
Citizens in an emergency situation have the right to:
Receive information about the emergency or other dangerous situations that have or may happen. This information must be provided with care for any disabilities the citizen may have.
The provision of collective and individual protective equipment and their use.
Address government bodies and local authorities with questions about the emergency
Participate in volunteer groups aimed at ending the emergency situation
Receive recompense for this work
Social protection and compensation, in according to legislation, for losses to their life, health, and property as a result of the emergency or as a result of work undertaken to end the emergency
Medical, socio-psychological, and psychiatric care and rehabilitation related to physical and psychological trauma caused by the emergency
And how is that different from a state of emergency?
A state of emergency, as laid out in the Ukrainian constitution, can only be declared by the National Security and Defense Council, which must then be sent to the president for approval, and then confirmed by the Ukrainian parliament. Citizen’s rights may be restricted during this period, which can legally only last from 30 to 60 days.
Citizens may, depending on government policy, lose their rights to:
Freedom of movement
Freedom of association
Freedom to strike
State of emergencies may also see wide-spread military and law enforcement mobilization, and stricter control and observance of law enforcement norms. They may also institute curfews, curtail the activities of political parties and actors, institute wide-spread document checks, limit media and press activities.
A state of emergency has not been declared in Ukraine, though government authorities have not ruled it out.
So what has the Prime Minister suggested?
In effect, PM Shmyhal has suggested a wide-ranging expansion of presidential power, in a manner that does not correspond to the norms laid out in the Ukrainian constitution. The PM’s suggestion would allow the president to bypass the Cabinet of Ministers, and parliament, in declaring emergency situations.
But the Ukrainian Constitution directly bans this sort of move, by setting the separation of government power – executive, legislative, and judicial – directly into the constitution. And it outright bans the "delegation" of authority from one government body to another, in a later article.
And seeing as the process of declaring a state of emergency is laid out in the Constitution, a simple bill would not be enough to cut Parliament or the NSDC out – a constitutional amendment would be necessary for that. Furthermore, the Constitution does not give the PM, nor the Minister of Internal Affairs (currently Arsen Avakov, who also supports Shmyhal’s suggestion) the authority to suggest changes to the constitution.
In his defense, the Prime Minister said that such a move may be necessary because the coronavirus may lead to a cessation of parliamentary work.
“I agree with the suggestion made by the Minister of Internal Affairs to develop a bill that would, during the coronavirus epidemic, allow government bodies to delegate their powers to a different government body in order to make critically necessary decisions about the country’s vital functions,” said the PM.
But his statement was met with suspicion and scorn by some political figures, mostly in opposition. The “Golos” parliamentary faction’s head, Serhiy Rakhmanin, noted that such a move would be a de facto “usurpation of power.”
Even if such a bill is developed and taken to a vote – its very existence would be invalidated by the Ukrainian Constitution, and it seems unlikely that the government would be able to take such a step.