Friday, April 13, 2007

Rule of Law or Political Compromise only way forward.

Any comments on the maidan web site must be taken with suspicion and can only be seen as being bias... There has been no publication of denial made by Ms Renate Wohlwend as falsely claimed by the Orange coalition journal. Comments made by Mr Terry Hallman, an out of work anti Russian US agitator, who is the English editor of the Maidan site like wise should be considered in the same light.

The President's authority to dismiss Ukraine's Parliament comes from Article 106 The President ...(8) terminates the authority of the Verkhovna Rada of Ukraine in cases specified by this Constitution;"

Article 90 outlines in which circumstances the President may terminate the authority of the Parliament.

The authority of the Verkhovna Rada of Ukraine is terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation.

The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if:

(1) there is a failure to form within one month a coalition of parliamentary factions in the Verkhovna Rada of Ukraine as provided for in Article 83 of this Constitution;

(2) there is a failure, within sixty days following the resignation of the Cabinet of Ministers of Ukraine, to form the personal composition of the Cabinet of Ministers of Ukraine;

(3) the Verkhovna Rada of Ukraine fails, within thirty days of a single regular session, to commence its plenary meetings.

The early termination of powers of the Verkhovna Rada of Ukraine shall be decided by the President of Ukraine following relevant consultations with the Chairperson and Deputy Chairpersons of the Verkhovna Rada of Ukraine and with Chairpersons of Verkhovna Rada parliamentary factions.

The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election.

The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine.


There is no other specific provisions in Ukraine's constitution that grants authority to the President to dismiss or terminate the authority of the parliament.

The President and his supporters speciously claim that the provision of Article 102 gives the President the dictatorial authority and the right to dismiss the Parliament as the President is guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine. it does not. Reason the president is not the arbitrator or interpreter of what is and what is not constitutional. They is the sole responsibility of Ukraine's Constitutional Court

Article 102

The President of Ukraine is the Head of State and acts in its name.

The President of Ukraine is the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens' rights and freedoms.
Give absolute and unrestricted entitlement to the president to dismiss the government. This is a very mute argument and one that would not withstand serious scrutiny.

A Policeman has the moral and legal obligation to uphold the law but it does not entitle the police to summarily execute a person who jay walks. The President is not the arbitrator or interpreter of what is and what is not constitutional. Interpretation of Ukraine's constitution is solely the responsibility of Ukraine's Constitutional Court.

The main issue at stake here is the question of constitutional authority and the right of the President to dismiss a democratically elected Parliament and a government that continues to maintain the confidence of the peoples parliamentary representatives.


Only Ukraine's Constitutional Court can decide this question.

The problem facing Ukraine is that the Court is under considerable pressure to not make a decision. The only person who can gain from the Constitutional Court being unable or unwilling to make a decision is the President himself.

If the Constitutional Court rules against the President's decree then the President would have no other option but to resign. A fact pointed out by Ms Renate Wohlwend (Source: http://www.regnum.ru/english/809351.html)

Clearly the Constitutional Court must make a decision. Failure or refusal to consider the matter would seriously undermine public confidence in Ukraine's Court something that neither side can afford to allow.

One way forward, as outlined by Ukraine's governing coalition, is to request a review and submission by the Council of Europe - Venice Commission on the constitutionality of the President's decree. The Venice Commission being the most appropriate independent external professional organisation to consider and make a submission to Ukraine's Constitutional Court.

In making a submission the Venice Commission would outline the issues according to international law best practice and the provisions of Ukraine's Constitution. The Venice Commission is fully aware of the provisions of Ukraine's Constitution and legal system. A submission by the Venice commission would facilitate and enable the Constitutional Court to consider the question of legality of the President decree without fear or favour as the whole world would be looking on. The assitance of the Venice Commission's opinion would only strengthen Ukraine's commitment to rule of law and compliance with its constitution.

The other way forward is the issue of fresh Parliamentary and Presidential elections.

The governing coalition has indicated that they are prepared to consent to early parliamentary elections the basis that the President resign so as to enable fresh Presidential elections to be held simultaneously with fresh elections for the Parliament.

If the President is sincere in his desire to allow the people of Ukraine to decide who should represent them then the compromise proposed by the government is fair and reasonable. Both the President and the Parliament would face the people and seek renewal of their respective mandates. After all the dispute that inflicts Ukraine at present is a conflict and battle for power between the Office of the President and the Parliament. It would be wrong and unjust to only subject one branch of power to renew their mandate.

Viktor Yushchenko will not accept this compromise why? Because all polls indicate that if the President resigned and stood for re-election he himself would not be re-elected. The President is not about seeking a political compromise and most ceratinly is not about respect for the democratic rights of the people of Ukraine

In the absence of a politcal compromise

In the absence of any agreement the only course of action is to continue to pursue review and judgment through Ukraine's Constitutional Courts. Until the Consitutional Court decide the division and conflict will only escalate.

Ukraine's Constitutional Court is expected to consider its position on Tuesday April 17.

The Council of Europe will also consider the current crisis facing Ukraine next week.

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