Wednesday, January 16, 2008

Retrograde Step

Presidential Law on Cabinet of Ministers seeks to unconstitutionally usurp power and authority from Ukraine's parliament

There is no rush for this new law to be passed. It can and should be deferred pending the review of the Courts and recommendations for proposed constitutional reform

The proposed new law on the Cabinet of Ministers, as outline in the article below, clearly is in breach of the constitution in that the President is seeking to usurp power and authority of the parliament by making the office of the president the sole authority to appoint the Prime-Minster, Defence Minister and Foreign affairs Minster.

"The provisions that stipulate that proposals on a candidate for the post of Prime Minister can be submitted by a coalition of parliamentary factions is withdrawn. This right remains exclusively with the President, as stipulated in the Constitution,» Shlapak said.

Moreover, according to him, the draft law clearly stipulates the reasons for which the President can reject a candidate for the post of Prime Minister. "


The statement above is false and misleading as the authority of appointment of Prime Minster, defence Minister and the Foreign Affairs does not lie with the President. The President has only the authority to make a submission on the appointment.

Yulia would be well advised to delay passing of the new Law on the Cabinet of Ministers pending the outcome of

1) the Constitutional Court review of the law as referred to the Court by Yushchenko in 2007.

2) review by the European Council's Venice Commission. Then and only then should parliament consider support for the proposed new law.


If this law is passed then undoubtedly it will be referred to the Constitutional Court for review by no less then 45 members of parliament. In the meantime the new law will be in force be it unconstitutional. Yulia should wait for the initial ruling before signing her own political death warrant.

In the absence of a detailed copy of the proposed law and based on the comments contained in the article below the President's proposed Law on the Cabinet of Ministers could very much be challenged and subject to review by Ukraine's Constitutional Court. (Assuming Yushchenko will not act to pervert the course of justice and interfere with the independence of Ukraine's Constitutional Court

The proposed law on the Cabinet as outlined below would see the President have sole authority in the nomination and appointment of who holds what position.

Currently the president only has the right of nomination or right to make a submission but the appointment is constitutionally the responsibility of the Parliament. Yushchenko's proposed Law seeks to usurp that power and authority and place absolute control back into the hands of the president. Such a Law would see Yulia Tymoshenko once again subject to dismissal and the appointment as the president's nominee.


The definition of what is and what is not constitutional ultimately can only be decided by Ukraine's Constitutional Court. The President specious claims that the current law on the Cabinet is unconstitutional has not been established. It is most likely that the proposed new law put forward by Yushchenko is unconstitutional.


Article 83 paragraph 8 of Ukraine's Constitution states:

A coalition of parliamentary factions in the Verkhovna Rada of Ukraine submits to the President of Ukraine, in accordance with this Constitution, proposals concerning a candidature for the office of the Prime Minister of Ukraine and also, in accordance with this Constitution, submits proposals concerning candidatures for the membership of the Cabinet of Ministers of Ukraine.


The above article clearly states that the Parliament is the body that makes a submission/nomination/proposal concerning the candidature for Prime-Minster and Cabinet Ministers

The authority to make the appointment as stated in Article 85 section (12) is the right of the parliament with the President maintaining the right to make a submission only : The decision of appointment is the Parliaments authority not the president's.


The authority of the Verkhovna Rada of Ukraine comprises:
...

(12) appointing to office - upon the submission by the President of Ukraine - the Prime Minister of Ukraine, the Minister of Defence of Ukraine, the Minister of Foreign Affairs of Ukraine; appointing to office - upon the submission by the Prime Minister of Ukraine - other members of the Cabinet of Ministers of Ukraine, the Chairperson of the Antimonopoly Committee of Ukraine, the Head of the State Committee on Television and Radio Broadcasting of Ukraine, and the Head of the State Property Fund of Ukraine; dismissing from office the officials mentioned above; deciding on the resignation of the Prime Minister of Ukraine and of members of the Cabinet of Ministers of Ukraine;


Clearly it is the Parliament that makes the appointment of the Prime Minister ad members of the Cabinet 9I;including the Foreign Affairs Minister and Defence Ministers. The parliament can also dismiss members of the cabinet.

Article 106 clause 9 requires the president to perform certain administrative functions within a fifteen day period, in recognition of the authority and nomination of the parliament submitted under Article 83 as outlined above.

The President of Ukraine
...
(9) puts forward, upon the proposal by the parliamentary coalition formed in the Verkhovna Rada of Ukraine as provided for by Article 83 of the Constitution of Ukraine, the submission on the appointment by the Verkhovna Rada of Ukraine of the Prime Minister of Ukraine, no later than fifteen days after the receipt of such a proposal;


Article 106 clause 10

Again states that the President has the right to make a submission on the appointment of Minster for defence and Minister of Foreign Affairs

It does not give the president the right to make the appointment which is clearly the prerogative and constitutional authority of the Parliament not the President

(10) puts forward to the Verkhovna Rada of Ukraine the submission on the appointment of the Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine;


Ukraine is a constitutional parliamentary democracy

The current law on the Cabinet of Ministers codifies the administrative procedures that govern the president's submission and the parliament's appointment. It does not takeaway the constitutional rights or obligations of the President. Howwver the new law as proposed by the office of the President most certainly appears to remove the rights and obligations of Ukraine's parliament.

Yushcheko's proposed new law seeks to reinstate presidential authority over government where the president has no power or authority to do so.


-- Extract from article --

President Viktor Yushchenko has proposed that the parliament adopt a new Law on Cabinet of Ministers.

Oleksandr Shlapak, the Presidential Secretariat’s first deputy head and presidential representative in the Cabinet of Ministers, announced this.

According to him, Yushchenko sent the relevant draft law to the parliament on January 10 for urgent consideration.

Shlapak said that this draft law provides for abrogating the current Law on Cabinet of Ministers because some of its provisions violate the Ukrainian Constitutions.

In particular, Shlapak explained that the draft law outlines procedures for forming a government in accordance with the requirements of the Constitution.

These procedures deal with submission of candidacies for the post of Prime Minister to the parliament.

«The provisions that stipulate that proposals on a candidate for the post of Prime Minister can be submitted by a coalition of parliamentary factions is withdrawn. This right remains exclusively with the President, as stipulated in the Constitution,» Shlapak said.

Moreover, according to him, the draft law clearly stipulates the reasons for which the President can reject a candidate for the post of Prime Minister.

The draft law also stipulates that the Defense Minister and the Foreign Affairs Minister are to be appointed exclusively at the initiative of the President and not at the initiative of the Prime Minister.

According to Shlapak, the draft law also provides for a mechanism according to which a candidate for the post of Prime Minister is to present the action program of his/her future government, and this mechanism stipulates that such a program should be based on political positions and programmatic tasks agreed by a coalition of parliamentary factions and that the program should be approved simultaneously with presentation of the Prime Minister.

The draft law also provides for improving the mechanism for interaction between government ministries and territorial agencies.

Moreover, it provides for changing the procedures for nominating candidates for posts of deputy minister: the current law stipulates that deputy ministers are to be appointed at the recommendation of the Prime Minister while the proposed law stipulates that deputy ministers are to be nominated by the relevant ministers at meetings of the Cabinet of Ministers.

Furthermore, Shlapak said that the draft law provides for restoring the President’s power to raise the issue of the Cabinet of Ministers’ responsibility with the parliament.

The draft law also regulates the issue of co-signing of presidential acts by the Prime Minister and individual ministers.

It also provides for the possibility of including members of the government and heads of other executive government organs in working groups set up by the President. The current Law on the Cabinet of Ministers prohibits this.

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