Wednesday, June 06, 2007

Question and Doubts Raised as to Legality and Validity of President's Third Decree

Less then one day old serious questions as to the legality of president's third decree have been raised.

At the heart of the president's decree and the agreement designed to settle the political crisis that has merged since the president first tried to dissolve Ukraine's democratically elected parliament is the need for 151 or more members of parliament to submit their resignation.

According to reports in the media
at least 26 members of Yulia Tymoshenko Block have not consented to or have withdrawn their resignation. There is even allegations of forgery with a number of members claiming that they have not consented to notices of resignation submitted by the leadership of the opposition parties on their behalf .

(See Foriegn Notes Blog - Will 151 deputies give up their seat in VR? and Is the crisis really over?)

It is understood that the Central Election Committee needs to receive the notice of resignation which is supposed to be presented to the parliament at which time the resignation is then forward to the Central Election Commission to determine if the vacancy and be filled from the registered party list.

Both Our Ukraine and Yulia Tymoshenko block have registered the cancellation of their party lists the question remains as to if 150 or more members of parliament have effectively resigned. According to Article 91 section 6 of Ukraine's Constitution a member of parliament must remain a member of the party/bloc that elected them. This is what forms part of the Imperative Mandate in Ukraine's Constitution. The provisions of the Imperative Mandate have been specifically singled out by the Parliamentary Assembly Council of Europe (PACE) Venice Commission which has recommend it should be abandoned.

There are a number of legal questions surrounding the implementation and operation of the imperative mandate provisions. Although an member of parliament must remain a member of the party that appointed them there is no limitation or requirement on how the member votes. In theory each member has the freedom to decide on what issues and how they will vote. Party administration has limited opportunities as to the circumstances in which the member's mandate can be summarily removed and any decison of the administrative arm of the politcy bloc is challengeable in court. If a member of the opposition refuses to resign, as long as they remain a member of the party that nominated the then there is very little that can be done to remove them or deny their rights to fulfil their appointed mandate.

If less then 150 members resign then in theory the remaining members can decide on block to represent the party/faction within the parliament.

This is all theory at this stage and again the issue would need to be resolved by the courts on the basis of law.

26 members of Yulia Tymoshenko's bloc have had their mandate withdrawn by the party congress unswr Article 81 subparagraph 6 (the Imperative Mandate provisons) a member must maintain membership of the party in which they were appointed.

However the Article 81 of the Constitution also states

"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." (sub paragraph 1 refers to resignation through a personal application; subparagraph 4 relates to a person relocating and taking up permanant residence abroad, subparagph 5 refers to incompatibility of the deputy’s mandate with other types of activity).

It is the last paragraph of Article 81 that is in question

"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"

This has yet to be tested in a court of law and this is were the potential conflict lies.

The 26 members in question did join the BYuT parliamentary faction but it is unkown as under what circumstances a parliamentary faction can excerise control and withdraw the mandate of a particlur member once appointed. This provison opens up a can or leagal nightmares and is the bais of concern about the Imperative Mandate as express by the PACE Venice commission. It goes well beyond the current poltical crisis and there are many more question such as what happens if a paralimnetary faction such as Our Ukraine splits or dissolves?

The Courts will have to decide and if this issue is allowed to continue unresolved my end up as another issue for Ukraine's Consitutional Court. To add to problem Yushchenko has made the Constitutional Court dysfunctional the only courts that are still functioning are administrative civil courts which can also consider this issue be it under limited circumstances.

It is now incumbent on the president and the speaker of the parliament to publish the list of resignations.

Until the parliament is officially and legally dissolved following the resignation of at least 150 members of parliament the governing parliamentary majority insists that the parliament has the right to continue to operate and govern. under Ukraine's Constitution

In the absence of a determination of the Constitutional Court -- a court that Yushchenko had made dysfunctional in order to prevent the court reviewing the legality of his earlier decrees, the president's actions and the political accord are once again brought into question.