for Yuridicheskaya
Practika
What is political termination? What are the criteria to distinguish between the political termination and the termination of employment of public officers who fill non-political positions? How lawful is the political termination without cause? Do labor law restrictions related to the termination of public office (including being on sick leave, on vacation, etc.) apply to political termination?
The Ukrainian society has already got used to high-profile political terminations of "VIP officers" who are appointed and dismissed from office by highest governmental authorities of Ukraine (the President, the Parliament, and the Cabinet of Ministers). Litigations related to the reinstatement in office of such ex-public officers are much publicized, widely discussed by the public and law professionals. The number of such high-profile legal actions increases from year to year. The practice of judicial trial in courts (previously courts of general jurisdiction, now administrative courts) of such category of legal cases is not uniform.
Pursuant to Article 17 of the Code of Administrative Proceedings of Ukraine (CAP), administrative courts have the jurisdiction to try and adjudicate cases related to the appointment to, holding of, and removal from, public office. Pursuant to Article 18 of the CAP, such cases shall be tried in district administrative courts.
Draft Law No. 1067 "On Amending Certain Laws of Ukraine" dated June 19, 2006, which was submitted by the Cabinet of Ministers of Ukraine for consideration to the Parliament, attempted to refer the matters of appointment to, holding of, and removal from, public office of high-ranking officials who are appointed by the President, the Parliament, and the Cabinet of Ministers to the competence of the Higher Administrative Court of Ukraine as a court of first instance.
I believe that such amendments to applicable laws are worthwhile because they would enable to stabilize the practice of trying such category of cases. The positive aspects of Draft Law # 1067 also include a prohibition on the use by courts of such measures to secure a claim as a suspension of acts on removal from public office of the foregoing officials, which would allow to avoid the situation when two and more public officers simultaneously occupy one and the same position. However, this draft law was withdrawn on August 4, 2006. The matter of jurisdiction over cases related to the appointment to, and removal from, office was tried before the Constitutional Court of Ukraine (CCU) in 2002 (the case on jurisdiction over acts on appointment and dismissal of officials, CCU Decision # 8-рп/2002 dated May 7, 2002). As early as before administrative proceedings appeared in Ukraine, the President of Ukraine had lodged a constitutional submission to the CCU regarding official interpretation of Clauses 2, 3 of Article 124 of the Constitution of Ukraine, in particular, regarding whether courts of general jurisdiction are entitled to initiate proceedings and adjudicate on the merits of the case the plaintiff's claims re reinstatement in office, change in the grounds for dismissal of members of the Cabinet of Ministers of Ukraine, heads of other central executive authorities and persons who are appointed to, and dismissed from, office by the President or the Parliament pursuant to the Constitution of Ukraine. In the opinion of the subject of the constitutional submission, such statements of claim do not fall within the jurisdiction of the courts of general jurisdiction because such removals from office are one of the forms of the exercise of state power by the Parliament and the President as defined in the Constitution of Ukraine.
The Constitutional Court disagreed with the opinion of the President of Ukraine and explained that, in case of such removals from office, the President and the Parliament perform an administrative or managerial function while courts perform a function of the administration of justice. The appointment of persons to certain positions may not deprive them of the right to judicial protection, which is an underlying right of each citizen that is enshrined in Article 55 of the Constitution of Ukraine: "Human and citizen's rights and freedoms are protected by the court. Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials, and officers."
Therefore, in the event of any dispute, the foregoing persons are not deprived of their right to go to court and seek the cancellation of the dismissal, e.g. as a result of the violated procedure for issuing an order of dismissal, change in the date of or reasons for such dismissal. At the same time, in the case of political termination when public officers are removed from office without assigning any cause, courts may not resort to evaluation of the political expediency of such removal.
The grounds for termination of public office can be divided into the following categories:
- Involuntary or political termination of office – political removal on the sole basis of political discretion of high-ranking officials;
- Disciplinary termination of office is used in case of a disciplinary offence;
- Voluntary termination of office; and
- Unconditional grounds or so-called "technical grounds" related to the occurrence of a certain event (loss of Ukrainian citizenship, reaching an upper age limit for public office, entry into force of a verdict of guilty, etc.).
The last two groups of the grounds referred to above will not be considered in this article because they are regulated by applicable laws well enough and their practical application is not disputable.
As far as the first group of grounds for termination of public office is concerned, it deals with political responsibility that may be applied without cause. As the CCU rightly held in its foregoing Decision # 8-рп/2002 dated May 7, 2002, political responsibility bears no mark of legal responsibility, is applied without any guilt, does not provide for any offence (violation of law), and is not a sanction for committing such offence. Political responsibility is applied only from the standpoint of its political expediency or, vice versa, political inexpediency. In deciding on involuntary termination of office (political removal), officials vested with such right under the law, may use political discretion only. The person taking a political position should understand that she/he is not safe from removal on political grounds.
An involuntary removal may be applicable exclusively to those officers whose functions include the formation and implementation of the public policy. Such officers are, inter alia, members of the Government headed by the Prime Minister. The Law of Ukraine "On the Cabinet of Ministers" dated December 21, 2006 states that "posts held by members of the Cabinet of Ministers are political." According to clause 3, article 115 of the Constitution of Ukraine, "resignation of the prime minister of Ukraine, adoption by the Parliament of Ukraine of a resolution of non-confidence in the Cabinet of Ministers of Ukraine shall result in resignation of all members of the Cabinet of Ministers of Ukraine."
According to article 85 of the Constitution of Ukraine, the Parliament is empowered to appoint and remove from the office the Chairman of the National Bank of Ukraine on the recommendation of the President of Ukraine. In accordance with the Law of Ukraine "On the National Bank of Ukraine" dated May 20, 1997, the Chairman of the National Bank of Ukraine shall be removed from office by the Parliament of Ukraine on the recommendation of the President acting within its constitutional powers and authorities." The Parliament also appoints and removes from the office the chairman of the Antimonopoly Committee of Ukraine, chairman of the State Committee for Television and Radio Broadcasting of Ukraine, and the chairman of the State Property Fund of Ukraine.
Political officials are not subject to restrictions related to removal of employees as imposed by the labor laws of Ukraine. For example, should the Parliament pass a resolution of non-confidence in the Cabinet of Ministers, the authority of the entire Cabinet of Ministers will be terminated, including those of its members who may be on sick leave or vacation on the day the Parliament passes the resolution of non-confident. The same is the rule for removing other officers whose posts fall within the political category.
As far as the second group of grounds for termination of public office is concerned, the following should be noted. Termination of public office held by the governmental officials who are not deemed as political is allowed only for the reasons defined by special laws. Alternatively, such governmental officials should rely on guarantees of their activities being independent from political changes in the country and discharge of their professional duty should not be determined by political leaders in power being pleased or not being pleased with them. This is the core on which the principle of apolitical public service rests. It is allowed to remove governmental officials of this category only if they fail to comply with the Constitution and laws of Ukraine or to discharge official duties laid on them.
If so, they must be removed in compliance with the labor laws governing the procedure for bringing to disciplinary responsibility of employees which requires their explanations as per the nature of the their misconduct and observance of the limitation periods applicable to bringing to disciplinary responsibility. Moreover, the Labor Code of Ukraine imposes some general restrictions to be followed in relation to removal from office.
There is, however, a separate category of officers combining political and disciplinary responsibilities to their senior officers. They are, for example, heads of local state administrations bearing political responsibility to local councils which are empowered to express non-confidence in the head of local state administration by the two thirds majority vote of all respective council members. In addition, heads of local state administrations bear disciplinary responsibility to the President of Ukraine who has the right to terminate the authority of a local state administration's head if he or she fails to observe the Constitution of Ukraine or the laws of Ukraine.
As it is the case with court practice related to removal of local state administrations' heads, the President of Ukraine is not entitled to remove a local state administration's head without assigning any cause (Yevhen Zhovtiak case). If public office of a local state administration's head is terminated by expressing non-confidence in him or her, the local council is not confined to the requirements of the labor laws. By contrast, the President of Ukraine terminating the authority of a local state administration's head must in any event adhere to the requirements of the labor laws as related to bringing the guilty person to disciplinary responsibility and to the restrictions of his or her dismissal.
The grounds for termination of the authority of local state administrations' heads clearly exemplify the principle of no political responsibility in the event of subordination. That is to say that a senior officer may remove a subordinate only in the event of disciplinary responsibility (for his or her wrongdoings), thus may not remove such a subordinate for the reasons of political expediency. This principle is to protect a subordinate from wrongful dismissal. Therefore, the President as an officer appointing the head of local state administration is not entitled to remove such head without assigning any cause (for political reasons) while the local council may terminate the authority of the local state administration's head by voting for the resolution expressing non-confidence in him or her by two thirds majority vote even without assigning any cause.
Summarizing the above, it should be noted that the legislation gives no clear definition to the political responsibility of public officers. It is a requisite to improve the applicable laws by introducing, among other things, a direct indication that the removal for political reasons is allowed only in relation to political positions which list must be clearly defined by laws. Moreover, an issue whether a certain position falls within the political category must be determined based on such officer's entitlement to form the public policy. It must be prescribed by the laws that, as far as they govern an issue of public office termination involving political officials, rules of the labor laws are not applicable if they restrict the right of involuntary removal.
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