Tuesday, April 17, 2007

Ukraine's Ministry of Justice - Legal Opinion on President's April 2, 2007 Decree

MINISTRY OF JUSTICE HAS PREPARED THE LEGAL OPINION WITH REGARD TO THE RESULTS OF LEGAL EXAMINATION OF DECREE OF THE PRESIDENT OF UKRAINE "ON PRE-TERM ABATEMENT OF AUTHORITY OF THE VERKHOVNA RADA OF UKRAINE"

Following interpellation of the Cabinet of Ministers, the Ministry of Justice has prepared the Legal Opinion with regard to the results of legal examination of Decree of the President of Ukraine dated April, 2 the year 2007 N 264 "On pre-term abatement of authority of the Verkhovna Rada of Ukraine"

Below is presented the full text of the Opinion:

Legal Opinion
Ministry of Justice



with regard to the results of legal examination of Decree of the President of Ukraine dated April, 2 the year 2007 N 264 "On pre-term abatement of authority of the Verkhovna Rada of Ukraine"

The President of Ukraine by Decree dated April, 2 the year 2007 N 264 "On pre-term abatement of authority of the Verkhovna Rada of Ukraine", referring to Article 5 para. 2-4, Article 77 para. 2, Article 83 para. 6, Article 106 para. 1 (§§ 1 and 7) and para. 3 of Constitution of Ukraine, decreed:

Terminate pre-term the authority of Verkhovna Rada of Ukraine V convocation.

Offer People's Deputies of Ukraine to continue exercising their authority which is not directly correlated with the authority of Verkhovna Rada of Ukraine.

Hold special elections to Verkhovna Rada of Ukraine on the 27th of May 2007, Sunday

Cabinet of Ministers secure the financing of early elections to Verkhovna Rada of Ukraine

Central Election Committee secure the organization of early elections to Verkhovna Rada of Ukraine in accordance with the Constitution of Ukraine, Law of Ukraine "On election of People's Deputies", other Laws of Ukraine.

Minister of Justice considers that the promulgation by President the mentioned Decree violates a number of provisions of Constitution of Ukraine taking into account the following:

The Constitution of Ukraine defines the footing and mechanism in the exercise of state power. Bodies of state power, their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the Laws of Ukraine (Second Part of Article 19 of Constitution). Laws and other normative legal acts are to be adopted on the basis of the Constitution of Ukraine and shall conform to it (Second Part of Article 8 of Constitution of Ukraine).

In accordance with clause 8 of the first Part of Article106 of Constitution of Ukraine the authority of President is, in particular, to terminate the authority of the Verkhovna Rada of Ukraine in cases specified by this Constitution. By exercising this authority the President is obliged to comply with the conditions and order of its realization stipulated in the Constitution, in particular, to exercise the authority exceptionally having the ground, provided in the second Part of Article 90 of the Constitution of Ukraine, that is, in case:

(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.

However, the Decree of the President dated April, 2 year 2007 N 264 "On pre-term abatement of authority of the Verkhovna Rada of Ukraine" does not even refer to the provisions of the second Part of Article 90 and clause 8 of first Part of Article 106 of Constitution of Ukraine, which directly define the authority of President as regards the conditions and order of pre-term abatement the authority of Verkhovna Rada of Ukraine.

Thus, the mentioned Decree does not have legal ground necessary for realizing the corresponding constitutional authority of the President of Ukraine, which confirms unlawfulness of his decision to abate pre-term the authority of Verkhovna Rada.

2. The violation of Article 83 of the Constitution of Ukraine, which provides that a coalition of deputies factions is formed in Verkhovna Rada of Ukraine according to election results on the basis of concordance of political positions exclusively by the deputies factions, is asserted by the President of Ukraine as the argument in favor of pre-term abatement of the authority of Verkhovna Rada of Ukraine V convocation.

Article 83 para. 6 of the Constitution of Ukraine, determines that the coalition of deputies factions is formed in Verkhovna Rada of Ukraine according to election results and on the basis of concordance of political positions, a coalition of deputies factions includes a majority of People's Deputies of Verkhovna Rada of Ukraine.

Thus, the constitutional grounds for forming the coalition of deputies factions are:

- forming of it according to election results;

- concordance of political positions of deputies factions which form the coalition

- entry to coalition of the deputies factions a majority of People's Deputies of Ukraine within the constitutional composition of Verkhovna Rada of Ukraine. At that the Constitution of Ukraine doesn't contain provisions condition the entry into coalition of all of People's Deputies of Ukraine, who are the members of respective party (block of political parties) faction or make impossible the non-entry of some faction members to coalition composition.

People's Deputy of Ukraine is the plenipotentiary of the People of Ukraine in the Verkhovna Rada of Ukraine, responsible to it and is called to voice and defend the its interests (the Decision of the Constitutional Court on 7 July 1998 # 11). Thus, the personal political position of the separate People's Deputies of Ukraine can be not coincident with the political position of the deputy faction on the whole.

The resolving condition for forming the coalition is the availability in the deputies factions, formed according to election results, and composing the coalition, the quantitative majority of People's Deputies of Verkhovna Rada of Ukraine.

According to Article 83 para. 9 of the Constitution of Ukraine the framework for forming, organising, and abatement of activity of a coalition of deputies factions in Verkhovna Rada of Ukraine are established by the Constitution of Ukraine and by the Rules of Verkhovna Rada of Ukraine.

Article 61 of the Rules of Verkhovna Rada of Ukraine, in pursuance of Article 83 of the Constitution, determines that the coalition of deputies factions, formed in Verkhovna Rada of Ukraine, is a voluntary association of the deputies factions, which is formed in Verkhovna Rada of Ukraine according to election results and on the basis of concordance of political positions. A majority of People's Deputies of Verkhovna Rada of Ukraine composes the coalition.

The coalition is formed after conducting of consultations by all deputies factions. On results of the conducted consultations signed personally by the heads of correspondent deputies factions, or in accordance with the decision of deputy factions, by one of the deputy heads of deputy faction, an Agreement on coalition of deputies factions in Verkhovna Rada of Ukraine is made.

In the coalition agreement there are fixed the coordinated political positions, which became the basis for forming of this coalition, in particular concerning the bases of domestic and foreign policy, the political direction and principals of coalition activity are determined, and also the order of solving of coalition activity internal organizational issues and the order of its activity termination. Lists of deputies factions members, who formed the coalition, with personal signatures of People's Deputies are to be added to the coalition agreement. Lists of deputies factions members are essential part of the coalition agreement.

A coalition is regarded to be as formed from the moment of its official proclaimation by the Head of Verkhovna Rada at the plenary session on the basis of the coalition agreement and lists of deputies factions members, who formed the coalition, with personal signatures of People's Deputies filed to the Apparatus of Verkhovna Rada of Ukraine.

Thus, the Rules of Verkhovna Rada of Ukraine binds the formation of coalition of deputy factions with the existence of such juridical facts.

1) signing by the heads of correspondent deputies factions, or in accordance with the decision of deputy faction by one of the deputy heads of deputy faction, of the Agreement on coalition of deputies factions in Verkhovna Rada (coalition agreement).

2) filing to the Apparatus of Verkhovna Rada of Ukraine of coalition agreement and lists of deputies factions members, who formed the coalition, with personal signatures of People's Deputies.

3) notification by the head of the plenary session of Verkhovna Rada about formation of the coalition of the deputies' factions based on the documents submitted by the coalition.

According to Article 62 of the Rules of Verkhovna Rada of Ukraine the one month term of the formation of the deputies' factions coalition starts from the date when the first plenary session of the newly elected Verkhovna Rada took place or from the other date of the ordinary or extraordinary session of Verkhovna Rada. From that day according to the Rules of Verkhovna Rada the coalition's activity is recognized terminated, and is over at 12 p.m. on the thirtieth day of the calendar.

In this connection it is necessary to notify that the first plenary session of Verkhovna Rada fifth convocation started on the 25th May 2006 by the taking the oath by the Deputies of Ukraine according to Article 79§1 of the Constitution of Ukraine that is confirmed by the record of the plenary session of Verkhovna Rada of the 25th May 2006. So from the 25th May 2006 the term, provided for by the legislation of Ukraine, for formation of the coalition in parliament started to expare.

On the 22nd June 2006 the Heads of the deputy factions the Nasha Ukraina, Blok Yulii Timoshenko, and the Social Party of Ukraine on the grounds of the Agreement about the coalition of the deputy fractions in the Verkhovna Rada of Ukraine informed about the creation of the Coalition of democratic forces consisting of 239 People's Deputies of Ukraine, who confirmed their willingness to become a member of the coalition.

However, on the 7th July 2006 the deputy fractions of the Party of Regions, the Social Party of Ukraine and the Communist Party of Ukraine informed about creation of the Antirecessionary coalition in Verkhovna Rada of Ukraine fifth convocation, and on the 11th July 2006 on the plenary session of Verkhovna Rada of Ukraine it was announced about termination of the coalition created on the 22nd June 2006 by the deputy factions the Nasha Ukraina, Blok Yulii Timoshenko, and the Social Party of Ukraine because of receiving the applications from the the deputies of the Social Party of Ukraine about leaving the coalition. It resulted in decrease of a number of deputies in the composition up to 213 that is less then the minimum determined by the Constitutional.

The same day on the plenary session of Verkhovna Rada of Ukraine it was announced about creation and registration Antirecessionary coalition in Verkhovna Rada of Ukraine. This coalition was formed between the Party of Regions, the Social Party of Ukraine and the Communist Party of Ukraine on the grounds of Agreement about its creation, signed by the head of three fractions (Mr V. Yanukovych, Mr O. Moroz, and Mr P. Symonenko) on 7th July 2006 according to Article 61§2 of the Rules of Verkhovna Rada of Ukraine.

Thus, the Antirecessionary coalition was officially formed on 11th July 2006 from the moment of proclamation about it in the plenary session of Verkhovna Rada of Ukraine.

At the same time on 23rd 2007 the Antirecessionary coalition informed about change of its name from the Antirecessionary coalition to Coalition of the National Unity for the purpose of concordance the name of the coalition of deputy fractions with its priority tasks. So if the most relevant task of the Antirecessionary coalition was to overcome serious political and economical crisis, which Ukraine met after the presidential (2004) and parliament (2006) elections, this aim was not relevant to the present day. That is why the Antirecessionary coalition declared another goal of its activity – elaboration and implementation of the strategic aims and priorities of the State Policy, called upon to increase welfare of the people and to consolidate with this aim all the branches of the State power – and in this connection the name of the Coalition has been changed from Antorecessionary Coalition to the Coalition of the National Unity.

The mentioned above witnesses the fact of formation of the deputies' factions coalition in Verkhovna Rada of Ukraine on the basis of the concordance of political positions of three deputies' fractions formed following the results of elections within one month from the date of the termination of activity of the previous coalition of deputy fractions. The Coalition comprises the majority of the deputies of Verkhovna Rada of Ukraine. Thus, the conditions of the Coalition of deputys' fractions determined by Article 83 of the Constitution of Ukraine are observed.

3. By Article 2 of the Decree of 2 April 2007 No 264 On the Pre-Term Abatement of Authorities of Verkhovna Rada of Ukraine the President of Ukraine offered deputies to continue to exercise their authorities which is not directly connected with the authorities of Verkhovna Rada of Ukraine. The mentioned above complies with Article 81§3 of the Constitution of Ukraine according to which the authorities of a deputy of Ukraine shall be terminated before the appointed time if the early termination of authorities of Verkhovna Rada of Ukraine on the date when the Verkhovna Rada of Ukraine of a new convocation opens its first meeting.

However, the realisation of the authorities of the Verkhovna Rada of Ukraine is inherent part of the authorities of the deputies of Ukraine.

By implication the Constitution of Ukraine, the Verkhovna Rada of Ukraine (Parliament) is the representative body of state authority and the sole body of legislative power which has collegiate character and consist of 450 People's Deputies of Ukraine who are elected on the basis of universal, equal and direct suffrage, by secret ballot. The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected. The authority of the Verkhovna Rada of Ukraine is executed by joint activity of People's Deputies of Ukraine at meetings of the Verkhovna Rada of Ukraine during its session (the Resolution of the Constitutional Court of 17 October 2002 17).

According to article 90 part 1 the Constitution of Ukraine, 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.

So, to the moment of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation the Verkhovna Rada of Ukraine is competent, in other words its has the right to adopting laws and realizing other constitutional authority.

4. According to article 4 the President's decree of 2 April 2007 № 264 „ On pre-term termination of the authority of the Verkhovna Rada of Ukraine" the President of Ukraine charged to The Cabinet of Ministers of Ukraine to provide financing of early elections to the Verkhovna Rada of Ukraine.

According to Article 113 § 2 of the Constitution of Ukraine the Cabinet of Ministers of Ukraine is responsible before the President of Ukraine. According to Article 113§3 the Cabinet of Ministers of Ukraine is guided in its activity by this Constitution and the laws of Ukraine and also by Decrees issued by the President of Ukraine, and resolutions issued by Verkhovna Rada of Ukraine in accordance with the Constitution and the laws of Ukraine. According to provisions of Article 116 of the Constitution of Ukraine the Cabinet of Ministers of Ukraine exercises certain functions, including according to part 6 of this article elaborates the draft law on the State Budget of Ukraine approved by the Verkhovna Rada of Ukraine.

According to the Law of Ukraine On State Budget of Ukraine on 2007 there are no financing for holding of early elections. So, the Cabinet of Ministers of Ukraine can't executed the requirements of Article 4 of the Decree of President of Ukraine of 2 April 2007 no. 264 till the Law of Ukraine On State Budget of Ukraine on 2007 is amended.

Regarding to the stated above and according to Article 8 § 2 of the Constitution of Ukraine laws and other legal acts are adopted on the basis of the Constitution of Ukraine and shall be in compliance with it. The Decree of the President of Ukraine of 2 April 2007 264 On the Pre-Term Abatement of Authorities of Verkhovna Rada of Ukraine issued by the President of Ukraine with abuse of power provided by Constitution of Ukraine and violated it. In view of this the Ministry of Justice consider that it is necessary to propose to the President of Ukraine to repeal the Decree of 2 April 2007 № 264 as such that is in a conflict with the Constitution of Ukraine.

Minister of justice
Oleksandr Lavrynovych



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