President of Ukraine Volodymyr Zelensky's five-year term is expiring, but elections have not been held. Are elections possible under martial law and what is the role of the Constitutional Court?
The formal mandate of Ukrainian President Volodymyr Zelensky expires on May 20. Presidential elections were supposed to be held at the end of March, but the parliament postponed them due to the state of war in the country. Ukrainian society is debating who will lead the country after Zelensky's five-year term as president expires.
At the beginning of the year, only a few politicians and commentators dared to ask that question. At the end of February, when Zelenskiy was giving his assessment of the two-year war with Russia, he called attempts to challenge its legitimacy as an "enemy narrative". "It is not the opinion of the Western partners or anyone in Ukraine, it is part of the program of the Russian Federation," he emphasized to journalists. But the discussion did not end there.
Elections under martial law?
Most Ukrainian lawyers say that it is absolutely clear that Zelensky will retain his power until a new president is elected. "It is clearly stated in the Constitution of Ukraine: after the expiration of the five-year mandate, from the moment of inauguration, the powers of the President do not end automatically. They end only with the inauguration of the newly elected president, that is, only after the election," Andrij Mahera, an expert in constitutional law from the Ukrainian Center for Political and Legal Reform (CPLR), explains to DW.
Currently, both presidential and parliamentary elections are banned in Ukraine – but for different reasons. The constitution prohibits parliamentary elections, while martial law prohibits all elections.
Voluntary resignation?
Elections under martial law are not prohibited simply to protect voters from danger. "Certain constitutional rights and freedoms are also limited, such as the right to free expression of opinion, peaceful assembly and freedom of movement. Therefore, it is impossible to provide the principle of universal suffrage and free elections," explains Mahera.
The Institute for Legislation, Scientific and Legal Expertise of the National Academy of Sciences of Ukraine, as well as the Central Election Commission of that country, made a similar statement in March.
However, not only lawyers participate in the debate, but also veterans of Ukrainian politics, such as Hryhoriy Omelchenko, who in the mid-1990s was a member of the parliamentary commission for drafting the constitution. He points out that it is not an omission that there is no direct regulation on the extension of the president's mandate. On the contrary, he says, it is conscious protection.
In an open letter to Zelensky published in the newspaper "Ukraine Moloda" in March, he nevertheless calls on the president "not to usurp state power", that is, not to seize it - and to voluntarily resign in May 2024.
Zelenski still enjoys a lot of support
However, Volodymyr Zelensky's legitimacy, according to observers, not only relies on laws, but also on the support of Ukrainian citizens. Although there has been some decline, the support still remains quite high. According to a survey by the Ukrainian research center "Rasumkov" conducted in January, 69 percent of Ukrainians have confidence in the state leader, while less than a quarter do not.
Another survey, presented at the beginning of February by the Kyiv International Institute of Sociology (KIIS), shows that 69 percent of respondents believe that Zelensky should remain president until the end of the state of war. Only 15 percent are in favor of holding elections under the current conditions, while another ten percent support the idea of the president transferring powers to the speaker of the parliament, Ruslan Stefanchuk.
Anton Hrushchevski, director of KIIS, estimates, however, that the last two scenarios represent an even greater danger for the legitimacy of the government and destabilization of the situation in Ukraine. "Millions of people are abroad, millions are under occupation, hundreds of thousands are serving in the army. If citizens cannot participate as voters or candidates in the elections, this will undermine the legitimacy of the election results," Hrushchevski points out.
The role of the Constitutional Court
The majority of lawyers interviewed by DW believe that the Constitutional Court should end the debate on the powers of the president and possible elections. "Only the Constitutional Court can interpret the constitution and check whether other laws are in accordance with it," points out Andrij Mahera.
But the judges of the Constitutional Court cannot check such important issues on their own initiative. Also, not everyone can start this procedure before the Constitutional Court - the president, the government, the Supreme Court, a group of 45 deputies or the parliamentary commissioner for human rights can do that. However, so far none of them have done so.
At the end of February, the newspaper "Dzerkalo Tišnja" reported, citing its sources, that Volodymyr Zelenski's office is working on a request to the Constitutional Court, but does not dare to submit it independently. Allegedly, this should be done by 45 members of the "Servant of the People" party of the president.
However, the parliamentary group of that party states that no one questions the legitimacy of the president. Even the opposition shows a surprising consensus. Representatives of various political forces say that they have no intention of addressing the Constitutional Court and remind the agreement of parliamentary groups that elections will not be held until the end of the state of war.
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