Thursday, June 07, 2007

Questions of legality

Dissecting Ukraine's Constitutional Requirements of the Third-Decree

Ukraine's Political Crisis is not over, there still is disputation as to the implementation and legality of the president's decree.

The governing coalition insists that the dismissal of the parliament must be legal and in accordance with Ukraine's laws and Constitution. It is rightly argued that the only situation in which the president can dismiss a parliament that maintains a working majority is if more then one-third of the elected members of parliament resign and the Central Election Committee are unable to fill any vacancies from the elected registered party list of candidates. This was the basis of the compromise agreement that was signed by the various players on May 29 and overseen by international observers.

Already we have seen disputes being raised as to the validity and timing of the president's third decree dismissing Ukraine's Parliament along with allegations that members of parliament, who have been claimed to have resigned, have in fact not resigned.

The question that needs to be asked - "Could the latest dispute set-back the election date or even cancel the election itself?"

Much of it depends on the outcome of deliberations of the Constitutional Court which is still considering issues of constitutionality related to the president's numerous decrees that have created and perpetuated the ongoing constitutional crisis in Ukraine.

To help understand the issues involved you need to first refer to the provisions of Ukraine's Constitution. Putting aside for the time being the debate that the president's first two decrees were lawful and in compliance with Ukraine's Constitution (most argue the president's decrees were not consitutional, which goes to the heart of crisis) This is a question that only the Constitutional Court, which was made dysfunctional by the president, can decide.

Article 82 outlines the requirement that no less then two-thirds of the constitutional composition pf the parliament has been elected. The exact meaning of this clause again is subject to interpretation but presumably it means that the number of members of parliament are to be at least two-thirds (300) of the total constitutional number of the parliament (450) having been elected in March 2006.

If 151 of the elected members of parliament tender their resignation and the resulting vacancies can not be filled by appointing a person on the party list that was registered at the time of the previous election then the competency of the parliament ceases to exist.

Article 83 sets-out the terms of sessions of the parliament with regular session commencing in February and in September of each year. All other sessions are considered to be a special sessions of parliament.

Article 90 outlines the circumstances under which the president can terminate the parliament and call for fresh elections. Section 3 specifies that in the event that regular sessions of parliament are unable to be held, within 30 days of the commencement of a regular session, the president may terminate the authority of the parliament and call fresh elections.

Current Circumstances

If over one-third of the members of parliament resign and their positions can not be fulfilled from the registered elected party list submitted at the time of the last election then the parliament can no longer function. What needs to be noted is that Article 90 makes specific mention to the president having to wait 30 days following the failure of the parliament to commence its plenary meetings within a regular session. Presumable this is designed to stop an over zealous president from acting too hastily in seeking to dismiss the peoples parliament and to allow the Central Electoral Committee time to examine the status of resignations, which are required to be submitted to the parliament, and possibility of declaring elected person next on a party list.

The last regular session of parliament had commenced in February 2007. So it is arguable that Article 90 section three does not apply to the current session. The next regular session is scheduled to commence on September 4, 2007 (being the first Tuesday in September).

If not for the political compromise which agreed to the holding of fresh elections on September 30 pursuant to the provisions of Article 90 Section 3 of Ukraine's Constitution. Conceivably, if deemed appropriate, the president could be forced to have to wait until October 4, 2007 before he can dismiss the parliament and call for fresh elections within 60 days from October 4. Both options are dependent on over one-third of parliamentary members formally resigning.

Again this is subject to interpretation by the Constitutional Court which has been made dysfunctional by the president.

Extract from the Constitution

Article 82 sub-paragraph 1 and 2

The Verkhovna Rada of Ukraine works in sessions.

The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

Article 83 sub-paragraph 1 and 2

Regular sessions of the Verkhovna Rada of Ukraine commence on the first Tuesday of February and on the first Tuesday of September each year.

Special sessions of the Verkhovna Rada of Ukraine, with the stipulation of their agenda, are convoked by the Chairperson of the Verkhovna Rada of Ukraine, on the demand of the President of Ukraine or on the demand of no fewer People’s Deputies of Ukraine than one-third of the constitutional composition of the Verkhovna Rada of Ukraine.

Article 90

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.