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Martial Law and Presidential Powers in Ukraine

This is a guest post by Serhiy Kudelia, Associate Professor of Political Science at Baylor University

Since November 28, 2018 ten oblasts (provinces) in Ukraine have been operating under the provisions of the ‘martial law.’ President Petro Poroshenko introduced it in response to violent seizure of 3 Ukraine military vessels and arrest of 24 sailors by Russian coast guard ships in the Kerch strait. The Ukrainian parliament’s confirmation of the president’s decree followed a day of bargaining during which he agreed to limit the duration of the law to 30 days and restricted its operation only to the provinces neighboring Russia or Russia-controlled territories (such as Transnistria).

Some viewed the exercise of legislative checks on the desires of the president as an example of Ukrainian “messy democracy” at work since the longer duration of the ‘martial law’ or, rather, a ‘state of siege’ would have interfered with the formal start of the presidential campaign and delayed the election now officially scheduled for March 31, 2019. Since then president Poroshenko has sent mixed signals about his intentions. On one hand, he has resolutely dismissed the possibility that ‘martial law’ would be a pretext for canceling election suggesting that it would only be to the benefit of Russian President Vladimir Putin. On the other, he also admitted that ‘martial law’ could be extended as long as Russian aggression continues – setting a very low bar for its possible renewal given ongoing Russian interference in Donbas and occupation of Crimea.

And there is a strong incentive for the president to do so. With the presidential election just four months away only 10% of respondents indicated in the recent poll that they were willing to vote for him in the first round. Also, every second Ukrainian says that they will not vote for the incumbent president under any circumstances. Losing the re-election bid will become not only a political setback for Poroshenko, but represent a personal threat. Over the last few years he was the target of multiple corruption allegations by former political partners and activists. Hence, the loss of power raises the risks that the new institutions established during his presidency may ultimately turn against him.    

 If the president ultimately chooses to demand the extension of the ‘martial law’ and, hence, postpone the election, he is likely to succeed in imposing his preference on the parliament. As I showed in my recent article in Post-Soviet Affairs, Ukraine’s premier-presidential model still allows the president to overpower the parliament on key issues, such as the composition of the cabinet and the tenure of prime minister. Without any formal powers to dismiss the government, three Ukrainian presidents operating under premier-presidentialism successfully achieved a turnover of three governments (in 2007; 2010; 2016) and only one attempt of government replacement by the president failed (2008). In all successful cases Ukrainian presidents had an advantage over other actors in informal powers that allowed them to reach well beyond the establish constitutional limits on their formal power. As long as they had a decisive say over the security apparatus and the courts, presidents could use their informal leverage to achieve favorable outcomes in confrontations with the legislature and the cabinet.

The new emergency powers granted to president Petro Poroshenko extend into three broad spheres and reinforce his informal authority. The first area is the relationship between citizens and the state. Based on the presidential decree the head of state can unilaterally limit some of the fundamental constitutional rights and freedoms of Ukrainian citizens guaranteed under the twelve articles of the Constitution. Among them are the rights to privacy and confidentiality of personal data, freedoms of speech, movement and assembly and ownership rights. The president can now rule to expropriate personal property, ban rallies or demonstrations, introduce curfews or restrict individual movement.

The second sphere is the intra-executive relationship with the cabinet and prime minister. The law on the ‘State of Siege’ allows the president to supersede prime minister informing regional executive administrations if they get transformed into military administrations. In this case the heads of military administrations are selected by the president on recommendation of the General Staff of the Armed Forces. He also acquires the full authority to decide on the structure and the staff of the local executive (Art. 4, Sec. 5). This, in effect, excludes the government from exercising any serious influence over the local governments.

The third sphere is the functioning of democratic institutions, particularly media and elections. The law allows the president acting through local chiefs and military commanders in each province to “regulate” the functioning of media outlets, influence its programming and close them down in case of the violations of ‘martial law’ requirements (Art. 8, Sec.11-12). It also unequivocally bans holding any elections or referenda on the national or local levels for the duration of the ‘state of siege’ (Art. 19). The key institutions of accountability of the authorities would thus either become suspended or seriously circumscribed in their operation.

Together these ‘emergency powers’ give the president broad discretionary powers over citizens, state officials and politicians. They also elevate the status of the presidency above other state institutions with the Commander-in-Chief now having a final say on key national matters. The new arsenal of informal powers improves president’s chances of persuading the parliament to extend the ‘state of siege’ beyond the initial 30 days if he chooses to do so.

The extension of the ‘martial law’ may serve a number of purposes. It enables the president to start informal bargaining with the current front runners, particularly Yulia Tymoshenko, on security guarantees following his likely exit. It also allows to shift the focus away from economic problems and increase the salience of national security issues int he campaign. Over the last two weeks Poroshenko frequently appeared in army uniform meeting military personnel and planning defense operations. Finally, martial law may serve as an elite coordination instrument that can help, for now, to prevent potential defections from his party to stronger contenders.

Since the imposition of the ‘martial law’ anywhere in Ukraine automatically prohibits removal of the president, the government and the parliament (Art. 10), Poroshenko will find many allies in key positions of power interested in minimizing the uncertainties related to the upcoming electoral cycle. This strategy, however, can only be a temporary solution for the ruling elites. If Poroshenko decides to choose existing security threats as a justification for extending his power his legitimacy at home and abroad will inevitably suffer creating the potential for even greater instability than following President Yanukovych’s ouster in February 2014.

Ukraine – Parliament Declares Martial Law

On Monday, November 26th, the Ukrainian parliament approved presidential decree “On Institution of Martial Law in Ukraine.” The measure was passed with 276 votes in favour during an extraordinary session of parliament. The decree was put forward by President Poroshenko on advice of the National Security and Defense Council of Ukraine in response to Russia’s seizure of three Ukrainian naval vessels and 23 sailors in Kerch Strait on Sunday.

Before the martial law was approved, the President was forced to compromise on a number of points. First, the initial decree requested that martial law be introduced for 60 days. Lawmakers only agreed to 30 days. It came into effect at 9am on November 28 and will be in place until December 27. Initial proposal also suggested that martial law would be introduced on the entire territory of Ukraine. But per the approved law, it will cover only 10 regions and territories along the Russian boarder, the Sea of Azov and the Black sea.

Second, lawmakers insisted on the relaxation of the proposed limits on the rights and freedoms of citizens. To reassure the citizens, the Parliament voted not to debate the martial law proposal in closed session but instead the debate was televised on national TV. On his website, the President insisted that the decree was proposed mainly as a security measure and assured that he did not intend any restrictions to citizens’ rights. The President also noted that neither partial nor full mobilization was envisioned unless the conflict escalates further.

Finally, during the Parliamentary session, lawmakers demanded assurances that introduction of martial law will not affect the holding of presidential elections early next year. Only 5 minutes after the Parliament voted in favour of martial law, it approved a law officially setting the date of the next presidential election for March 31, 2019.

These recent political events generated two main concerns. First, of course, comes the issue of security, territorial integrity, and independence of Ukraine. Russia has denied any wrong-doing. However, other countries and international organizations have supported Ukraine. During a press conference, NATO’s chief stated that “there is no justification for the use of military force against Ukrainian ships and military personnel” and demanded that ships and sailors be immediately released. Concerns about what the attack and declaration of martial law could mean for the security in the region are high. President Poroshenko was careful to insist that “martial law does not mean declaring war. It is introduced with the sole purpose of boosting Ukraine’s defense in the light of a growing aggression from Russia.” He also noted that it did not mean that Ukraine either gave up or was not amenable to diplomatic solutions to the crisis, insisting that Ukraine will continue to comply with the Minsk agreement and all other international obligations.

Second, what impact will the introduction of martial law have on the political situation in the country, especially on the upcoming presidential elections? The opposition has accused the President of using martial law to divert public attention from his failing popularity. Some even expressed concerns that martial law will allow the possibility of postponing or cancelling the election complete. According to opinion polls, only 5-10 percent of citizens were ready to vote for him in the last couple of months. Less than 15 percent trusted the President. However, other presidential candidates have similar low levels of support and trust. For instance, 75 percent of those surveys did not trust Yulia Tymoshenko, one of the main candidates running for president next year.

The next couple of months will be critical for Ukraine and its President. On the one hand, it will be important to secure territorial integrity of the country and avoid escalation of the crisis. On the other hand, the President will need to ensure that he keeps his word and that free and fair elections do take place as scheduled on March 31, 2019. In the words of the recent Foreign Policy dispatch: “Martial law is a test. Will Ukraine’s democracy pass?”