On February 24, 2022, without any declaration of war, Russia started a full-scale invasion of Ukraine. Ukrainians have been heroically defending the independence of our country for over a month now. The Verkhovna Rada has become an important center of stability and resistance to the occupiers. During the war, MPs meet in the Parliament on a regular basis and adopt legislative initiatives to strengthen the country's defense capacity.

At the same time, a draft law was registered in the Parliament. If adopted, it would allow MPs to hold meetings remotely. Read about the key points of the initiative, international experience, and its advantages and disadvantages in the new piece by the Civil Network OPORA.

What the New Draft Law is About

On March 8, the draft law “On Amendments to the Rules of Procedure of the Verkhovna Rada of Ukraine on Remote Sessions of the Verkhovna Rada of Ukraine” (registration No 7129), introduced by the Ukrainian People's Deputy, Ruslan Stephanchuk, and supported by signatures of 241 MPs, was registered in the Ukrainian Parliament. According to the explanatory note, the draft law is aimed at ensuring the continuous work of the Verkhovna Rada in connection with the military aggression of the Russian Federation against Ukraine and the introduction of martial law in Ukraine from 05:30 am on February 24, 2022.

In addition, the explanatory note states that additional regulation is required for remote work of MPs in conditions when their presence in the house of the Verkhovna Rada of Ukraine (Kyiv, Hrushevskoho Street 5) may become impossible.

The draft law proposes to amend Articles 2, 3, 9, 17, 37, 43, 47, 73, 78 of the Rules of Procedure and to supplement Section II of the Rules with a new Article 41, which six paragraphs will regulate the peculiarities of organization and conduct of remote meetings of the Verkhovna Rada of Ukraine.

The Committee for Parliamentary Rules of Procedure recommended to the Parliament to include the draft law in the agenda of the seventh session of the Verkhovna Rada of the 9th convocation, to consider it and adopt it as a basis, taking into account the comments and proposals to the text of the draft law set out in the Committee's opinion.

Key Provisions of the Draft Law:

●    exceptionally, in case of introduction of martial law in Ukraine, meetings of the Verkhovna Rada of Ukraine may be held remotely (remotely) via videoconference with video-recording of MPs of Ukraine who joined the meeting;
●    the agenda of the remote meeting may not include the issues of amending the Constitution of Ukraine, early termination of the powers of the President of Ukraine, the issue of concluding peace and related issues, draft acts of the Verkhovna Rada that may need to be adopted following the concluded peace agreements.
●    openness and publicity of a remote meeting shall be ensured by its live broadcast on television and radio, on the official website of the Verkhovna Rada of Ukraine, as well as in another way that does not contradict the law (except for the case of a closed-door remote meeting);
●    voting will be conducted by raising the hand with the MP of Ukraine indicating the position of "in favour," "against," or "abstained", after which the representative of the Counting Commission will inform about taking record of the will of the MP of Ukraine;
●    The counting commission will report on the results of voting, after which the chairperson of the meeting will announce the decision.

International Experience

Until recently, the practice of holding remote meetings of parliaments has been rare. However, everything was changed by COVID-19. Before the pandemic, parliaments with remote procedures were very few (Spain, Paraguay). After the beginning of the epidemic, remote forms of parliamentary meetings and voting were introduced by the parliaments of Brazil, Ecuador, Argentina, and a number of local governments in different countries. In many parliaments, the remote format was introduced, such as in the US Congress and Senate, the House of Commons of Great Britain, the National Assembly of Wales, the parliaments of Australia, Romania, Georgia, Latvia, as well as in the Verkhovna Rada of Ukraine. These discussions take place both at the level of public statements by MPs and on the basis of specific draft laws. In particular, more than 50 US congressmen have signed a statement on the need for distance work. In Ukraine, this idea was embodied in a draft law No.3250 authored by Ruslan Stefanchuk, as in the case of 7129. At that time, however, the initiative was turned down. The only innovation was the possibility to hold meetings of parliamentary committees online.

As for any experience of holding remote parliamentary sittings during the war, such cases have not yet occurred. Ukraine may become a pioneer in this effort if the Verkhovna Rada approves this draft law.

Pros and Cons of the Draft Law

According to the draft law, during the remote plenary session, certain provisions of the Rules of Procedure do not apply. At the same time (as emphasized by the Main Scientific and Expert Directorate in its conclusion), it is not clearly defined to what extent (in whole or only in part) some of these provisions should not apply.

In particular, this concerns the following provisions:

●    holding plenary meetings on Tuesday and Thursday;
●    the opportunity to submit proposals for consideration by the Parliament to remove the chairman of the plenary meeting;
●    procedure for comprehensive discussion of the issue in the plenary;
●    allocating at least 10 minutes of time for the speaker to speak during the discussion of an issue;
●    recording for addresses from the parliamentary stand;
●    voting with the "Rada" electronic system;
●    the possibility to apply for review of the issue when a procedural violation has been recorded;
●    a written appeal of the deputy to the chairman, if the speaker misinterpreted his/her words;
●    the procedure for electing the Chairman of the Verkhovna Rada and his deputy-chairs;
●    procedure for withdrawal from office of the chairman of the parliament and his deputy-chairs.

OPORA highlighted some of the advantages of the draft law No 7129:

1.    The Verkhovna Rada of Ukraine has a procedure for approval of exceptional decisions, in case of a radical escalation of the military situation at the front.
2.    Having a procedure that provides for the initiation of a remote meeting after consultation with leaders of parliamentary factions and groups or upon the approved proposal by the Approval Council.
3.    It may potentially help prevent the exclusion of parliament from important decision-making processes and the de facto disruption of the balance of powers.
4.    Low risks of falsification of the "remote voting" of MPs, taking into account the detailed procedure for their identification during the public expression of each of their positions on the draft laws.
5.    Ensuring the broadcasting of a non-standard meeting of the Parliament on TV, radio, and on the Parliament's website.

Deficiencies of the Draft Law:

1.    Its compliance with the Constitution of Ukraine and previous decisions of the CCU is debatable.

The key remark to the draft law is its inconsistency with the Constitution. Pursuant to Article 84 of the Constitution of Ukraine, parliamentary sittings shall be held openly, and the decisions shall be taken exclusively at plenary sittings, by a personal vote of People's Deputies. Conversely, Article 91 provides that the Verkhovna Rada of Ukraine shall adopt laws, resolutions, and other acts by the majority of its constitutional members (except for certain cases). These provisions have been interpreted by the Constitutional Court of Ukraine and can potentially be applied as reservations against the draft law.
The decision of the CCU on the authority of the Verkhovna Rada of Ukraine dated October 17, 2002 No 17-rp/2002 determined that the plenary session of the parliament is a regular meeting of people's deputies of Ukraine at a specified time and place, held in accordance with the established procedure. They consider the issues referred to the powers of the Verkhovna Rada of Ukraine by the Constitution of Ukraine, where decisions shall be made by personal vote of the People's Deputies. Conversely, the powers of the Verkhovna Rada are exercised through joint activities of people’s deputies of Ukraine at the Rada sittings during the sessions.

This decision of the CCU is the basis for substantiating the position that video conferencing meetings are not regular assemblies of MPs at a specified time and place that are held in accordance with the established procedure.

At the same time, according to OPORA, this decision of the CCU can be interpreted in favor of the draft law. It clearly establishes the procedure for its initiation and implementation. A meeting of the Parliament through a videoconference qualifies as fully authorized only if a majority of the constitutional membership of the Parliament is recorded on it. In fact, the draft law envisages several stages of verifying the personal and open voting of People's Deputies (authentification before the vote, displaying the deputy's view during the vote, announcing their position and raising their hand in favour or against the draft law, documenting the voting content for each person by the Counting Commission).

Another decision of the CCU determines the possibility of joint activities of MPs of Ukraine in the mode of functioning of a single legislative body only at meetings of the Verkhovna Rada during its sessions. Joint activities outside these sittings and outside the sessions are unacceptable (No. 17-rp / 2002 of October 17, 2002). The Court's position may be seen as evidence of the unconstitutionality of the videoconference decisions, as they were not taken at “regular” parliamentary sittings.

Thus, it is possible to find arguments "in favour" and "against" the constitutionality of plenary sittings in the format of a videoconference, and the Consitutional compliance of certain laws can only be determined by the Constitutional Court. However, at the stage of adoption of the draft law, the Parliament is obliged study the problem before making a final decision to prevent the possible recognition of parliamentary decisions as illegal.

2.    No established requirements for the video conferencing system and the control procedure over its proper functioning.

3.    Lack a procedure for identifying a deputy through their official registration in a certain parliamentary system. This shortcoming of the draft law is an argument supporting the idea of failure to provide for a personal vote in a video conference mode.

4.    Lack of procedure for intra-parliamentary appeals against the voting results, in case of non-personal voting or other violations. Such a procedure is now applied in case of detecting facts of "piano voting" during decision-making. Besides that, the procedure for contesting the results can guarantee the protection of MPs from pressure and ensure free voting via videoconference.
5.    The unresolved issue of the procedure for preparing (drawing up) and adoption of the agenda for a remote meeting of the Verkhovna Rada of Ukraine

Thus, the prospects for holding plenary meetings of the Verkhovna Rada of Ukraine are ambiguous. Although, in a war situation, there may be a real need for such a special procedure in an exceptional case. However, the registered draft Law does not expressly remove the reservations as to its unconstitutionality. It also offers no realistic vision of how to quickly develop and implement a secure videoconferencing system for parliamentary sittings.

Recommendations to the Verkhovna Rada of Ukraine (Committee on Rules of Parliamentary Procedure, Ethics and Organization of Work of the Verkhovna Rada)

To decide on a possible further consideration of the draft law:

●    On the basis of the Law "On the Rules of Procedure of the Verkhovna Rada of Ukraine," to urgently apply to expert organizations for a preliminary opinion on constitutional restrictions for holding a plenary meeting by videoconference.

In case the Parliament decides to continue working on the draft law:

●    To take into account the comments listed in the opinion of the Main Committee and the Scientific and Expert Directorate of the Verkhovna Rada of Ukraine.
●    To identify the safeguards, requirements, and procedures for the security of the system used for the video conference.
●    To establish procedures for the registration of MPs in the videoconferencing system by means of an e-signature at the beginning of the plenary sitting.