Tuesday, September 04, 2007

Ukraine's Parliament convenes Autumn Session amidst Constitutional Crisis

Ukraine's Parliament today (September 4) convened its Autumn session according to the requirements in Ukraine's constitution (Article 83).

The session was attended by 269 members of parliament.

The Autumn Session of Parliament was held under controversy in the midst of a constitutional crisis and power struggle between the President and Ukraine's democratically elected parliament

An agreement was struck in late May between the The President, the Prime Minster and the Speaker of the Parliament that early parliamentary election could be held subject to the determination of the president complying with Ukraine's' Constitution.

Under Ukraine's Constitution (Article 90)The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if: ..,
(s3) the Parliament fails, within thirty days of a single regular session, to commence its plenary meetings.

In July members of the opposition resigned their parliamentary positions and canceled their respective party lists reducing the member of elected representatives in the parliament to below two-thirds of the total 450 parliamentary seats.

According to Ukraine's constitution (Article 82) The Verkhovna Rada (Parliament) of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

Following the resignation of opposition members it is argued that the parliament is no longer competent and as such the holding of the plenary session on September 4 could not be convened.

The president's earlier decrees seeking to dismiss the parliament has been subject to an appeal in Ukraine's Constitutional Court including the current decree scheduling election for September 30

The basis of the appeals to the constitutional court is that the president has usurped power in that his decrees do not conform to the requirements of Article 90 of the constitution.

The session of parliament held to day holds two points of interest in terms of provisions of constitutional law which is open to augment and interpretation which can only be determined by the Ukraine's Constitution Court which has been muted since the president interference in the operation and composition of the court.

First Question: Can the Parliament convene its parliamentary session given that it does not maintain the requisite number of elected representatives? The parliament could be skating on thin ice and the court could very well rule the session invalid accordingly.

Second Question: Does the president have the authority to dismiss the Parliament. If the September 4 session is considered invalid then the president under Article 90 can within 30 days from today (October 5) terminate the authority of the parliament but not before.

Prior to today the president had no grounds or authority in which he can dismiss the parliament. The government maintains the support and confidence of a majority of elected parliamentary representatives, there is no division and there is no vote of no-confidence which would normal be a pre-condition for a parliaments dismissal.

For the sake of 30 days the president has placed the legality of the September 30 election and undermined confidence in Ukraine's constitutional rule of law having himself breached the provisions of the constitution.

Ukraine's Constitutional Court

The current division questions of legality hinges on the the ability and willingness of Ukraine Constitutional Court to fulfill its duty which following the president's intervene in the operation of the court has failed to rule on the appeals before it.

Back in April this year the Parliamentary Assembly of the Council of Europe passed a resolution in which it stated

" The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution. and has not allocated the required funding for these elections”.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected.

Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides."

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that

"Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions"