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Yanukovych’s removal was unconstitutional

Yanukovych was corrupt, thuggish, and possibly a murderer. I can’t imagine him being welcomed back into Ukraine except to face trial. However, it’s very clear that in removing him, the Ukrainian parliament failed to follow constitutionally mandated procedure. At the time, the Polish foreign minister Radislaw Sikorski declared his removal “legal”[1] and the term legal has been used by other commentators. On 21 February, I pointed out that the removal was actually unconstitutional.[2] A post on reddit the same day made the same point.[3] An article on the Radio Free Europe website pointed out the legal problems with the removal on 22 February.[4] And the Wikipedia article “President of Ukraine” has been amended to raise the same issue.[5]

At the time the parliament voted to remove Yanukovych, it had also recently voted to revert from the 1996 constitution to the 2004 constitution, but Yanukovych had not yet signed the act into law. This may leave some question about which constitution was in effect at the time of Yanukovych’s removal, but in this case it doesn’t matter. The two constitutions prescribe identical impeachment procedures.

Article 108 gives the ways in which a president can be removed from power.

Article 108. The President of Ukraine shall exercise his powers until the assumption of office by the newly elected President of Ukraine.

The authority of the President of Ukraine shall be subject to an early termination in cases of:

1) resignation;

2) inability to exercise presidential authority for health reasons;

3) removal from office by the procedure of impeachment;

4) his/her death.[7]

Yanukovych didn’t resign, he wasn’t ill, and he didn’t die. That leaves only impeachment. Here’s the article giving the procedure for impeachment.

Article 111. The President of Ukraine may be removed from the office by the Verkhovna Rada of Ukraine in compliance with a procedure of impeachment if he commits treason or other crime.

The issue of the removal of the President of Ukraine from the office in compliance with a procedure of impeachment shall be initiated by the majority of the constitutional membership of the Verkhovna Rada of Ukraine.

The Verkhovna Rada of Ukraine shall establish a special ad hoc investigating commission, composed of special prosecutor and special investigators to conduct an investigation.

The conclusions and proposals of the ad hoc investigating commission shall be considered at the meeting of the Verkhovna Rada of Ukraine.

On the ground of evidence, the Verkhovna Rada of Ukraine shall, by at least two-thirds of its constitutional membership, adopt a decision to bring charges against the President of Ukraine.

The decision on the removal of the President of Ukraine from the office in compliance with the procedure of impeachment shall be adopted by the Verkhovna Rada of Ukraine by at least three-quarters of its constitutional membership upon a review of the case by the Constitutional Court of Ukraine, and receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and upon a receipt of the opinion of the Supreme Court of Ukraine to the effect that the acts, of which the President of Ukraine is accused, contain elements of treason or other crime.[7]

He can only be removed for “treason or other crime.” The reason given by parliament for removing him was that he was “constitutionally unable to carry out his duties.”[6] To the best of my knowledge, being constitutionally unable to carry out your duties as president is not listed anywhere in the Ukrainian penal code as a crime. It’s not really clear what the phrase means, except perhaps that the drafters of the removal act were in a hurry and hadn’t given much thought to their legal justifications.

The first step of the impeachment procedure is for a majority of parliament to initiate the impeachment. I think it’s fair to say that a majority of parliament initiated an impeachment, but that’s the only part of the procedure that was carried out.

The second step is to create an investigation commission with a prosecutor and investigators. This was not done.

The third step is to present the conclusions and proposals of the commission to the parliament, at which point two thirds of parliament must vote to bring charges against the president. This was not done.

In the fourth step, the Supreme Court must vet the charges and determine that the acts he’s being charged with are in fact treasonous or criminal. The Constitutional Court also reviews the impeachment procedure and ensures that it complies with the constitution. This was not done.

The fifth step is the actual vote to remove the president. Removal requires that at least three fourths of parliament’s “constitutional membership” to vote in favor of removal. “Constitutional membership” is defined in Article 76 of the constitution.

The constitutional membership of the Verkhovna Rada of Ukraine shall comprise 450 people‚Äôs deputies…[8]

Three fourths of 450 is 337.5. If you have one half of a people’s deputy, the other half must be near at hand, so that’s 338 votes needed to remove a president. 328 members of parliament voted for removal[6], ten votes shy of the three fourths super-majority needed to remove a president. Constitutionally speaking, the vote to remove him failed.

Again, I can’t see any way Yanukovych could be restored to power, and I don’t think it would be desirable. But the way he was removed was clearly unconstitutional. That gives Yanukovych grounds for claiming his removal was illegal and creates legitimacy problem for the government that follows him.

Update: I originally had the Constitutional Court doing the Supreme Court’s job. I edited the post on 9/3/14 to say that the Supreme Court rules on whether or not the charges against the president constitute a crime.


I was wrong about Yanukovych

If Yanukovych wanted to have any chance of staying on as president, he would have had to follow Friday’s agreement by shoring up his support in parliament and ensuring that he had the government security forces behind him. He would have had to maintain communication with the opposition leaders to ensure that they remained committed to the agreement and to show that he was following through on his commitments. There’s no guarantee that he would have succeeded in these things, but they were necessary for him to have a chance at continuing.

Instead he left Kiev and went to Kharkiv, Ukraine’s second city and a center of support for his presidency. In his absence, there have been enough defections from his party in parliament that the opposition is effectively in control. Parliament has freed Tymoshenko from prison, allowing her to replace Yatseniuk, a capable but less charismatic politician, as the direct leader of her party, the largest party in the opposition. With Yanukovych absent and without a prime minister, the effective head of government is the speaker of the parliament. Parliament has just replaced the pro-Yanukovych speaker with an ally of Tymoshenko.

Yanukovych can’t maintain power without the support of the security forces. The anti-riot police are exhausted after their unsuccessful attempts to seize Independence Square from the Maidan protesters. Their failure and Yanukovych’s absence has probably left them demoralized. Their top commander has gone before parliament and announced that they will not oppose the “people”, meaning the protesters. The Interior Minister, who controls the anti-riot police, has been replaced with an opposition figure. The police in general have disappeared from Kiev. Parliament is being guarded by Maidan self-defense groups, who are also guarding the presidential offices and residence to prevent looting. In other words, civil order is now being guaranteed by the protesters rather than the police, and the protesters seem to be well disciplined and effective. (A BBC producer tweeted that a protester guarding the president’s residence warned him not to step on the grass. The Maidan self-defense forces are on the job!)

If Yanukovych is to recover power at this point, it would have to be through a military counter-coup. But the head of the paratroopers and the head of military intelligence have both joined the head of the anti-riot police in pledging not to oppose the “people”, and the willingness of the military to act against the protesters was always in doubt anyway.

Yanukovych needed the the opposition leaders who signed the agreement with him to remain committed to the agreement and to sell it to the protesters. But Yanukovych’s inaction has lead Yatseniuk to call for his resignation and Klitschko to call for elections by May 25. As the opposition gains power, the agreement that gave Yanukovych whatever chance he had of hanging on to power a little longer has been discarded.

Opposition to the Maidan protesters is strongest in the east and south of Ukraine, where the protesters are viewed as “fascists”, among other things. But in Kharkiv, where pro-Yanukovych politicians are gathering to support the president, news reports have anti-government protesters gathering in the thousands, with pro-government protesters numbering in the hundreds. The police, who recently were beating anti-government protesters, are now protecting them from the pro-government protesters. Even the Crimea, essentially a Russian enclave within Ukraine, is divided between pro-Maidan Tartars and separatist pro-Russian groups.


As I was writing this, BBC reported that “Ukraine’s parliament has voted to dismiss President Viktor Yanukovych and set elections for 25 May.” The Ukrainian constitution requires a presidential impeachment process that starts with parliament creating an ad hoc commission to investigate charges. The commissions recommendations have to be accepted by two thirds of the parliament and reviewed by the Constitutional Court. Then and only then can the president be removed by a three-fourths majority in the parliament. Since this procedure hasn’t been followed, Yanudovych’s removal is unconstitutional.

ICTV has broadcast a message from Yanukovych calling events in Kiev “vandalism, banditry and a coup.” There have been no reports of vandalism or banditry, but a democratically elected president is being removed without following constitutionally mandated procedures. That probably counts as a coup. During the three months of the crisis, I don’t recall any opinion surveys that showed a majority in favor of removing Yanukovych. A large part of the population will view his removal with horror. In spite of their rhetoric, the Maidan protesters are not “the people”. The Ukrainian people are badly divided and the new government will have its work cut out for it establishing its legitimacy and persuading the population that it represents all of Ukraine and not just an anti-Yanukovych faction that has seized control of the capital.