Lawfare Agents Are Wrong About Legality of Suspending Presidential Elections

Legal arguments of Ukrainian and Western Lawfare Agents regarding suspension of Presidential elections rely on four major points: one from the Constitution, one from Ukrainian Election Code, one on interpretation of Human Rights and one on the International legitimacy. Initially, their arguments may seem reasonable, but digging deeper they collapse. The documents and their interpretations follow here:

1. Article 83 of the Ukrainian Constitution states:

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 are extended until the day when the Verkhovna Rada of Ukraine elected after the cancellation of martial law...

2. Article 20 of the Election Code states:

After entry into force of the corresponding presidential decree [of Martial Law] of Ukraine the Central Election Commission makes the decision on the termination of the electoral process in all territory of Ukraine or in its certain areas to which determines procedure for completion of the selective procedures which were begun within the corresponding electoral process.

3. Argument based on Constitutional Rights, especially fundamental Human Rights:

...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.

4. The argument that the government can't assure citizen's fundamental rights in compliance with international standards:

In case of introduction in Ukraine or in its certain areas of military or extraordinary condition the electoral process of nation-wide elections and/or the electoral process of the corresponding local elections which happen in these territories or their part stops from the date of entry into force of the corresponding presidential decree of Ukraine.

I'll tackle points three and four first, because they provide a framework for understanding the problems inherent in their arguments.

Way back on 2 March, 2014 Prime Minster of Ukraine, Arseny Yatsenyuk, issued a statement that actions by Russia constituted a "declaration of war." According to points three and four by Lawfare Agents, the Ukrainian government couldn't have ensured implementation of electoral rights both in 2014 and 2019. This is overwhelmingly evidenced by the mass disenfranchisement during those elections. In 2014 in particular, those in "occupied territories" were not even given the opportunity to vote. Electoral changes in 2019 made nominal headway, but the results is still de facto disenfranchisement.

The ODIHR, a constituent body of the OSCE, sent an International Election Observation Mission (IEOM), which included observers from the NATO Parliamentary Assembly to both the parliamentary and presidential election in 2014. They reported that "the election took place in a challenging political, economic and in particular security environment. Genuine efforts were made by the electoral authorities to conduct voting throughout the country, despite continued unrest and violence in the east of Ukraine, where anti-government forces control some areas, and the acting government is conducting counter-insurgency operations. This seriously impacted the election environment..."

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And despite this, OEM observers reported that "the legislative framework is generally adequate for the conduct of democratic elections." So what has changed this situation in this regard? The outcome of the elections was recognized by the UN, the EU, and the US—though, not without compulsion or outright coercion. Those elections were run counter to the "free expression of voters" mentioned in point three above. So, regardless of the outcome of the elections and the findings of the observation by the IOEM used as evidence to the contrary, the disenfranchisement of so many during a time of war would so impact elections as to make them entirely illegitimate.

From there we stand on firm ground to tackle their second argument which is based on Election Code. This code was passed after Maidan. If arguments made on points three and four are correct it makes any law passed since elections February of 2014, when elections were first held during time of war. But even we argue under assumption that these elections aren't invalid, instead arguing for precedence under similar conditions in previous elections, Article 20 does not provide strict prohibition of elections during martial law. The above quoted second paragraph is clarified in the very next paragraph:

After entry into force of [Martial Law], the Central Election Commission makes the decision on the termination of the electoral process in all territory of Ukraine or in its certain areas to which determines procedure for completion of the selective procedures which were begun within the corresponding electoral process.

The President is not authorized to make the determination here. It must be made by the Central Election Commission. Though the CEC made the determination in March 2024 that elections should be suspended until the period of martial law has ended, there are questions regarding its ability to make a determination about Presidential elections. Firstly, are they permitted to make this determination? And secondly, is the commission itself still a valid entity?

To answer the first argument, I will refer to a statement by "Hryhoriy Omelchenko, who was a member of the parliamentary commission for drafting the constitution in the mid-1990s. He points out that it is not an oversight that there is no direct provision for extending the president's term. On the contrary, he says, it is a conscious safeguard."

And secondly, there question of where exactly these members of that commission are located must be determined. "Under Article 30.4 of Ukraine's Central Election Commission law, 'removal to a permanent place of residence outside of Ukraine' provides grounds for parliament to dismiss a TsVK member before his term ends." In 2023, at least one member of the CEC resigned as he had fled to the United States.

Lastly, we can address the argument regarding precedence for suspension of Presidential elections during martial law in the Ukrainian Constitution. The office of the President was by design and with firm intent, left out of the martial law clause. The clause specifies potential suspension of election of the Verkhovna Rada. I reemphasize Omelchenko's qualification here as a draftee of the Ukrainian Constitution of 1990.

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