Monday, June 11, 2007

Democracy is Based on the Rule of Law

Ukraine is a Constitutional Democratic Republic

The tail that wagged the dog. Problems with "Imperative Mandate" and provisions of Ukraine's Constitution threatens to bite the President and undermine his decree and resolve to hold fresh parliamentary elections.

Rule of Law and compliance with Ukraine's Constitution has been thrown out the window with the president usurping power where he has no authority.

The president, Viktor Yushchenko, in order to prevent judicial review of his earlier decrees, went so far as "illegally" dismissing three Constitutional Court judges on the eve of the Courts ruling on the constitutionality of his actions. The Court was expected to rule against the president's decrees. The president even posted armed guards to prevent the now dysfunctional court from fulfilling its constitutional duty.

Faced with reality and the need to reach a political compromise to resolve the crisis, that theatened to undermine political stability in Ukraine, agreement was struck on May 29 that the parliament could be dismissed and fresh elections held pursuant to Article 90 sub-paragraph 3 of Ukraine's Constitution which requires 151 or more members to resign.

Division within the Our Ukraine block that go to the heart of the current political crisis.

Elected members of Our Ukraine and Bloc Yulia Tymoshenko (BYuT) had earlier indicated that they would support the government on the floor of the parliament, potentially giving the governing coalition the authority to override the president's right of veto and in in theory limited opportunity to amend Ukraine's Constitution.

The president sought to place blame on the government as opposed to members of his own political party who opted to support the parliamentary majority.

Faced with divisions and disunity in the ranks of the president's own opposition party the Viktor Yushchenko embarked on a reckless campaign to destabilise Ukraine and its democratic constitutional order to force fresh parliamentary elections.

Members of the Party of Industrialists of Entrepreneurs of Ukraine (PIEU) - a breakaway dissident group of President's Our Ukraine faction - have indicated their refusal to resign and are now challenging decison of the President's Party to nullify the registered party list in the courts. If successful any vacancy caused by other members resignation of the President's Our Ukraine block will be filled by any candidates next on the list.

If fresh elections are held dissident members of the Party of Industrialists of Entrepreneurs of Ukraine (PIEU) will be excluded from the Our Ukraine Electoral bloc in future elections and as such they are reluctant to tender their resignations and create the legal grounds for the president to dissolve the parliament and hold fresh elections.

Article 81 of Ukraine's Constitution stipulates the terms and condition in which a member of parliament's mandate can be cancelled. Apart from Death, Criminal activities Court ruling the provisions that apply in the current circumstances are sub-paragraph (1) Personal Resignation or sub-paragraph (6) the members exit from the party/faction in which he was elected.

Two Major stumbling blocks stand in the way of holding fresh parliamentary elections on September 30.

  1. A minimum of 151 members of parliament need to resign and cancel their elected mandate and registered party election lists, use to fill any casual vacancies need to be nullified in order to ensure that resignations are not filled by a count-cack of the registered list and in doing so prevent the parliament from maintaining a constitutional requirement of two-thirds of the parliaments full complement.

  2. Assuming that the resignations are forthcoming and the number of members of parliament falls below the 300 member minimum number the earliest the president can dissolve the parliament is October 5 and the earliest Constitutional date for holding fresh elections is October 6. One week after the September 30 date set by the president.



Personal Resignation

Article 81 Sub-paragraph (1) and (6)

A decision on pre-term termination of the authority of a People’s Deputy of Ukraine on grounds referred to in sub-paragraphs (1), (4) of the second paragraph of this Article shall be made by the Verkhovna Rada of Ukraine, while the ground referred to in subparagraph (5) of the second paragraph of this Article shall be a matter to be decided by court.

The above provision of Ukraine's constitution is clear in that decisions of personal resignations are made by the Ukraine's Parliament. Olexander Moroz and others correctly insist that for personal resignations to be deemed valid they must be presented to the parliament.

Sub-paragraph (6) is somewhat more complicated. Whilst it is arguable that the party/faction can cancel the registered party list the termination of a members rights to be a member of the parliamentary faction much more cumbersome and subject to review by the courts as outlined above in reference to Article 81 sub-paragraph (5)

If this situtation is allowed to continue unabated then Party of Regions may have to step in and offer to have some of their members resign so that elections can proceed but even then the date of teh elections would still need to be shifted in order to meet the requirements of Ukraine's constitution. All this needs to be put in place well before September 4, at the latest, if the May 29 agreement is to hold.


- Extract from Ukraine's Constitution -

Article 81

The authority of People’s Deputies of Ukraine terminates simultaneously with the termination of authority of the Verkhovna Rada of Ukraine.

The authority of a People’s Deputy of Ukraine shall terminate prior to the expiration of his or her term in office in the event of:

(1) his or her resignation through a personal application;

(2) a guilty verdict against him or her entering into legal force;

(3) a court declaring him or her incapacitated or missing;

(4) termination of his or her citizenship or his or her departure from Ukraine for permanent residence abroad;

(5) his or her failure, within twenty days from the date of the emergence of circumstances leading to the infringement of requirements concerning the incompatibility of the deputy’s mandate with other types of activity, to remove such circumstances;

(6) his or her failure, as having been elected from a political party (an electoral bloc of political parties), to join the parliamentary faction representing the same political party (the same electoral bloc of political parties) or his or her exit from such a faction;

(7) his or her death.

The pre-term termination of the authority of a People’s Deputy of Ukraine shall also be caused by the early termination, under the Constitution of Ukraine, of authority of the Verkhovna Rada of Ukraine, with such termination of the Deputy’s authority taking effect on the date when the Verkhovna Rada of Ukraine of a new convocation opens its first meeting.

A decision on pre-term termination of the authority of a People’s Deputy of Ukraine on grounds referred to in subparagraphs (1), (4) of the second paragraph of this Article shall be made by the Verkhovna Rada of Ukraine, while the ground referred to in subparagraph (5) of the second paragraph of this Article shall be a matter to be decided by court.

Where a guilty verdict against a People’s Deputy of Ukraine becomes legally effective or where a court declares a People’s Deputy of Ukraine incapacitated or missing, his or her powers terminate on the date when the court decision becomes legally effective, while in the event of the Deputy’s death – on the date of his or her death as certified by the relevant document.

Where a People’s Deputy of Ukraine, as having been elected from a political party (an electoral bloc of political parties), fails to join the parliamentary faction representing the same political party (the same electoral bloc of political parties) or exits from such a faction, the highest steering body of the respective political party (electoral bloc of political parties) shall decide to terminate early his or her authority on the basis of a law, with the termination taking effect on the date of such a decision.


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