The retired judge of the Constitutional Court of Ukraine, Doctor of Law Mykola Melnyk, notes that the Constitution of Ukraine clearly defines the duties of the parliament and the president until the election of their successors. In his article entitled "Elections in Ukraine: not now, but when?", he refutes possible interpretations of Russia regarding the legal "overdue" of the parliament and the president due to the postponement of the election dates.
According to the judge, according to Article 76 of the Constitution of Ukraine, the term of office of the Verkhovna Rada is five years. However, in the event of the expiration of the term of office during martial law or a state of emergency, the mandate shall continue until the election of a new member of parliament after the lifting of the martial law or state of emergency.
Melnyk emphasizes that such an automatic extension does not require a decision and is carried out in accordance with the imperative prescription of the Constitution. In this regard, parliamentary elections during martial law are legally impossible, and the current Verkhovna Rada will be legitimate until the election of a new parliament after martial law is lifted. During this period, no one can question the legitimacy of the current parliament, as its powers have been extended at the constitutional level.
The author notes that the Constitution of Ukraine does not have a similar norm regulating the powers of the president during a state of war or emergency, and this became the basis for discussions about the possibility and expediency of holding presidential elections in 2024. Judge Melnyk, however, points out that this "gap" is compensated by other provisions of the Constitution.
He notes that although the Constitution (Part 1, Article 103) establishes a five-year term of office for the president, it also requires the head of state to exercise his powers beyond the specified term. However, the peculiarity of the institution of the presidency in Ukraine is that the Constitution does not provide for the possibility of temporarily replacing the president (for example, with a vice president) or performing his duties in the event of his temporary absence or the expiration of his term of office.
The judge emphasizes that the power of the president, who is the head of state and the Supreme Commander-in-Chief of the Armed Forces, is an integral and key component of state power in Ukraine. Therefore, in order to ensure the proper functioning of state power on constitutional grounds and ensure the existence and stability of the state, the powers of the president must be exercised continuously.
Melnyk notes that the performance of the president's duties is limited only to a certain period - until the election and inauguration of a new president, and only in cases of early termination of the president's powers in accordance with Articles 108, 109, 110, 111 of the Constitution (Article 112 of the Constitution). It is noted that no person, except the president himself, can fulfill his powers, both during the five-year term and after its completion.
This conclusion is based on the main principles of the functioning of state power in Ukraine, in particular on the principles of institutional continuity and stability, as well as specific constitutional norms. The judge emphasizes the importance of the relationship between the provisions of Article 103 of the Constitution and Article 108, which stipulates that the president exercises his powers until the newly elected president of Ukraine takes office.
It is noted that this provision of the Constitution not only allows, but also obligates (imperatively - "performs!") the acting president to fulfill his powers until he is replaced by the newly elected president. The judge adds that the objective impossibility of holding free elections in the conditions of a military conflict can also serve as a constitutional basis for extending the powers of the president and parliament.
Attention is drawn to the fact that the issue of the legitimacy of the Ukrainian government without holding elections will become the subject of discussion in the information space of Russia. The judge emphasizes that Russia, in particular Putin, will probably emphasize the non-recognition of the legitimacy of the Ukrainian parliament and the president after the end of the constitutional term of their powers, even in the presence of rescheduled elections in Russia, which may not meet democratic norms.
