Legal information on the impossibility of holding elections under conditions of martial law - Civil Network OPORA
With the approach of constitutionally established period for scheduling the parliamentary and presidential elections, the debate on the possibility of conduct of elections under conditions of martial law is heating up both in Ukraine and among our international partners. Civil network OPORA and more than 200 other NGOs have already taken a stand against the proposal to hold elections during the Russian invasion. According to Civil network OPORA, conduct of election under martial law violates the Constitution of Ukraine and runs counter to Ukraine’s international commitments.
The Universal Declaration of Human Rights stipulates that the will of the people shall be the basis of the authority of government. This will shall be expressed in periodic and genuine elections which shall be held by universal and equal suffrage with the use of secret ballot or equivalent methods that guarantee freedom of voting (Article 21).
According to the Preamble of the Convention for the Protection of Human Rights and Fundamental Freedoms, basic human rights and freedoms are best maintained by “an effective political democracy.” In deciding the case of Mathieu-Mohin and Clerfayt v. Belgium, the European Court of Human Rights stated the following: “Since Article 3 of Protocol No. 1 enshrines a characteristic principle of democracy, it is accordingly of prime importance in the Convention system.” This article guarantees “the right to hold free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people.” Therefore, reasonable periodicity of elections as a standard involves guaranteeing the implementation of key principles of electoral law without which it is impossible to conduct elections. Accordingly, under extraordinary circumstances where the state government can’t ensure the implementation of electoral rights in compliance with the above-mentioned international standards (in particular, under conditions of martial law), the vast majority of democratic countries don’t hold elections.
The International Covenant on Civil and Political Rights (ICCPR) ensures the right to vote and to be elected at genuine periodic elections which shall be held by universal and equal suffrage with the use of secret ballot method, guaranteeing the freedom of expression of the will of electors (Article 25). At the same time, the ICCPR allows the parties to the Covenant to take measures derogating from their obligations regarding the election process under the conditions of a special legal regime. In order to avoid abuse of rights, the authors of this document call on the parties to the Covenant to establish and regulate the conditions, time frames and limits of derogation from obligations under the conditions of martial law or a state of emergency.
Such a derogation reflects the general opinion that the countries may be unable to adhere to constitutional and international standards for holding free and democratic elections during the martial law or a state of emergency. The Venice Commission assesses these risks in a similar way and emphasizes that the elections require a peaceful political atmosphere, complete fruition of all the freedoms and human rights as well as a condition of full guarantee of public order and security, which is the reason for imposing constitutional and legal restrictions on holding elections under martial law.
Confidence in election results is one of the key conditions for recognizing the elections as democratic. This will be of particular importance for the first elections that will be faced with war-related problems and challenges. The Venice Commission emphasizes the need to ensure stability of electoral legislation for the purpose of strengthening the credibility of election process and enhancing the democratic performance. Conduct of first elections influenced by negative consequences of the war will probably require modifications in the election system as well as introduction of new voting methods and other changes aimed at ensuring electoral rights of citizens. At the same time, this international standard often imposes a ban on introducing significant changes in electoral legislation in the run-up to (no later than a year prior to) the election day, so as not to create an impression that these changes are dictated by political interests of the ruling party. It is impossible to comply with this standard, given the fact that the Constitution of Ukraine provides for holding next parliamentary and presidential elections on October 29, 2023, and March 31, 2024, correspondingly.
Constitutional and legal aspects
The Constitution declares Ukraine a democratic state (Article 1), which places our country under an obligation to comply with generally recognized standards and principles of holding elections enshrined in chapter III “Elections. Referendum” despite the imposition of martial law.
At the same time, according to the Constitutional Court Decision No. 3-зп dated July 11, 1997, the principles of the constitutional system of Ukraine are enshrined in chapters I, III, XIII of the Basic Law (sub-clause 4 of clause 1 of reasoning of the Court decision). This chapter of the Constitution is specially protected from changes. It can be amended only in the case of carrying out a complicated procedure, including mandatory approval of changes through an all-Ukrainian referendum, which is impossible under conditions of martial law.
Article 64 of the Constitution of Ukraine confirms that the right to participate in the management of state affairs (including the right to freely elect and be elected to bodies of state power and bodies of local self-government) provided for in Article 38, as well as the right to freedom of opinion and expression (Article 34), the right to freedom of association (Article 36) and the right to peaceful assembly (Article 39), are not absolute and may be restricted under conditions of martial law. Such restrictions naturally stem from the impossibility of complying with the requirements provided for in Chapter III of the Constitution of Ukraine, including those provided for in Article 71, which stipulates that the elections to bodies of state power and bodies of local self-government are free and shall be held on the basis of universal, equal and direct suffrage by way of secret ballot.
Furthermore, paragraph 2 of Article 71 of the Basic Law emphasizes the need to guarantee the free expression of the will of voters. In this regard, the Constitutional Court of Ukraine underscored that the principle of free elections is implemented through the following key components: guaranteeing the voters’ right to freely form and express their views and opinions; objective and accurate official certification of election results devoid of falsifications; recognition of election results and respect for the democratic choice of Ukrainian citizens. The entire electoral process should be organized and carried out in such a way as to ensure unhindered expression of the will of voters and respect for the election results (paragraph 10 of sub-clause 2.4 of clause 2 of reasoning of the Court decision No. 3-р/2017 dated December 21, 2017). Security risks, restriction of freedom of expression and prohibition of peaceful assemblies make it impossible to ensure free political competition as well as free formation and expression of the will in conditions of full-scale war.
It is worth emphasizing that the requirements provided for in Chapter III of the Constitution of Ukraine apply to all types of elections, meaning that it is mandatory for both national and local elections to comply with these requirements.
The prohibition to hold elections under conditions of martial law is also pursuant to paragraph 4 of Article 83 of the Constitution of Ukraine, which doesn’t allow for termination of the authorities of the Verkhovna Rada and automatically extends the term of parliamentary powers until the election of new convocation of parliament after the end of the war: “In the event that the term of authority of the Verkhovna Rada of Ukraine expires while a state of martial law or of emergency is in effect, its powers shall be extended until the day when the Verkhovna Rada of Ukraine elected after the cancellation of the state of martial law or of emergency convenes its first meeting of the first session.” The opponents emphasize that there are no similar requirements for extending the term of presidential powers – paragraph 1 of Article 108 of the Constitution stipulates that the President of Ukraine shall exercise his or her authority until the assumption of office by the newly-elected President of Ukraine. However, given the impossibility of electing the members of parliament as a national representative body, conduct of election of the President of Ukraine would result in implementation of different approaches to forming the presidential and legislative branches of power, while the nature and principles of holding elections are the same for both of these bodies of state power.
This constitutional regulation is aimed at guaranteeing the continuity of government, which is of particular importance when it comes to ensuring protection of state sovereignty and stability of constitutional order in the conditions of countering military aggression.
According to Article 108 of the Constitution, the President of Ukraine shall exercise his authority until the newly elected President takes office. This allows the President of Ukraine, who is the guarantor of state sovereignty (Article 102) and the Commander-in-Chief of the Armed Forces of Ukraine (Article 106) responsible for ensuring state independence and national security, to properly implement the constitutional provisions in war-time.
Therefore, both the Verkhovna Rada of Ukraine and the President of Ukraine should exercise their powers until the elimination of military threat and the conduct of democratic elections in accordance with international standards and constitutional principles of electoral law.
The above-mentioned constitutional approach effectively creates a blanket prohibition on holding elections under the conditions of martial law. In this regard, we would like to underscore that making changes in Article 19 of the Law “On Legal Regime of Martial Law” or in Article 20 of the Electoral Code, or formal abolition of martial law for the purpose of announcing the start of electoral process won’t be enough to legalize the conduct of elections in the conditions of war – especially in a manner so that the civilized world could recognize them as legitimate and democratic. Therefore, introduction of any amendments into legislation with the aim of ensuring formal “legitimacy” of war-time elections would defy the spirit of the Constitution and international standards.
It is worth emphasizing that the procedure for imposing martial law, which involves the adoption of Presidential Decree subject to approval by the Verkhovna Rada of Ukraine, serves as a safeguard against unlawful seizure of power. This means that in the case of suspected usurpation of power (either by the president or the parliament), one branch of power can keep the other branch in check by refraining from issuing a presidential decree on the extension of martial law, refusing to approve the presidential decree or disagreeing with the term of validity of martial law. For example, as a result of heated political debate in 2018, the martial law was imposed for a period of 30 days (rather than 60 days) in order to avoid jeopardizing the possibility of conduct of regular presidential election.
Furthermore, civil society of Ukraine doesn’t have a full understanding of the processes that prevent our country from holding elections in the fall of 2023 and spring of 2024. Some citizens support the idea of preparation of elections in war-time, despite the existing prohibitions. CEC activities in the field of examination of the issues related to scheduling of interim elections have a positive impact on the formation of legal predictability in regards to the impossibility of holding elections under conditions of martial law. In the course of 2023, the CEC adopted 3 resolutions on postponement of interim elections in single-member constituencies No.50 (Donetsk oblast), No.159 (Sumy oblast), No.186 (Kherson oblast), No.40 (Dnipropetrovsk oblast) and No.47 (Donetsk oblast). In its statement of reasons, the CEC pointed to the fact the active phase of hostilities, which involves countering Russian military aggression, makes it impossible to predict the development of security situation in Ukraine, assess the extent of damage caused to infrastructure facilities that are used for preparation and conduct of elections, ensure compliance with the law, legal order and generally recognized international standards for guaranteeing human rights, free and transparent elections held by universal and equal suffrage in adherence to key principles of electoral law. According to the substantive provisions of CEC resolutions, reexamination of the issue of scheduling of elections will take place after termination or abolition of martial law. However, these provisions are not consistent with the practice of scheduling of regular parliamentary elections that must be announced no later than 61 days prior to the election day.
In order to eliminate the risk of manipulation and ensure legal predictability in regards to the impossibility of holding elections under conditions of martial law, the bodies of state power responsible for announcing or calling an election should examine the issue of scheduling of relevant elections following the example of the CEC that examined the issue of scheduling of interim elections of people’s deputies. This would contribute to strengthening public confidence in state authorities and maintaining their legitimacy in the conditions of uncertainty about when the Russian aggression will end.
According to Article 3 of the Constitution of Ukraine, the human being, his or her life and health, honour and dignity, inviolability and security are recognised as the highest social values. Ukraine can’t afford to put the lives of millions of its citizens at risk in the situation where civilians are deliberately killed by Russia, while the threat of mass missile attack on the election day will deprive the voters of access to the polling stations, which could lead to disruption and delegitimization of elections.
Therefore, conduct of elections under conditions of martial law and full-scale aggression violates the principles of electoral law (first of all, the principle of free elections) and international standards, given the fact that security risks, restriction of freedom of expression and prohibition of peaceful assemblies make it impossible to ensure free political competition and, as a consequence, free formation and expression of the will in war-time.
In view of the aforesaid, for the sake of establishing and ensuring further development of genuine democracy in Ukraine, we call on:
The Verkhovna Rada of Ukraine:
- to establish a transition period that will last for at least six months as from the date of abolition of martial law until the start of election process;
- to develop a single-use law in an inclusive manner before the beginning of the election process, which will regulate the conduct of the first post-war elections with due account for the challenges resulting from the war and in compliance with international standards and constitutional requirements.
The Central Election Commission:
- to postpone the examination of the issue of scheduling of regular parliamentary elections until the abolition of martial law.
State bodies responsible for appointing the judges of the Constitutional Court of Ukraine (Verkhovna Rada of Ukraine, President of Ukraine, congress of judges):
- to fill judicial vacancies in the Constitutional Court of Ukraine without further delay while ensuring that the judges are appointed under the new rules of competitive selection with due account for the requirements, including high level of competence and judicial integrity, in order to guarantee impartial examination of the issues related to holding of post-war elections and adoption of constitutional decisions.