Wednesday, February 13, 2008

Opposition's Window of Opportunity Limited

Early parliamentary elections can only be forced between September 2008 and February 2009

Party of Regions window of opportunity to force early parliamentary elections before the scheduled presidential elections is limited.

Published on Unian

According to the English version of Ukraine`s Constitution, as supplied by the Ministry of Justice and published by the European Venice Commission, the authority of the president to dismiss the parliament can not be made until 12 months into the term of office of the current parliament and the parliament must not be able to commence its regular parliamentary sessions. (Articles 82, 83 and 90 of Ukraine`s Constitution)

Regular parliamentary sessions are scheduled to commence in February and September of each year. A session can last for days, weeks or even months.

Article 90 (3) states that if a regular session of parliament is not commenced within 30 days from the scheduled date then the president has the authority to dismiss the parliament.

Once a session has commenced, as is the case with the current session, the 30 day limitation does not apply to that session.

That means that the earliest date the opposition can begin to force an election is September 2008 in anticipation of an October 2008 early 2009 parliamentary election.

If the September regular session is commenced then the last opportunity available is prior to the scheduled commencement of February 2009 session.

Article 90 also provides an additional limitation on the authority of the president to dismiss the parliament.

"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"

This would mean that the parliament can not be dismissed within six months of the scheduled presidential election (June 2009 in anticipation of a December 2009/January 2010).

An election can be held within this period if the parliament is dismissed prior to the six month lead-up date.

If the opposition is to force a simultaneous presidential and parliamentary election it must resign its representative mandate and cancel its electoral list prior to the commencement of the September 2008 or February 2009 in order to deny the parliament competency and as such prevent the regular parliamentary session from commencing.

The opposition would need have broad public support for the calling of early presidential and parliamentary elections.

In view of the above limitations it would be a tactical mistake for the opposition to try and force an early election by making the parliament dysfunctional so soon after the last election.

The president is not required to dismiss the parliament if he so chooses

The president can refuse to hold simultaneous presidential and parliamentary elections and if he so decides can also refuse to dismiss the parliament. The provisions of Article 90 are not mandatory. If the president does not dismiss the parliament prior to May/June 2009 the president loses authority to call fresh parliamentary elections prior to the next presidential election .

The government would still remain in office but would be limited by the fact that it could not pass legislation. Ukraine would once again exist in a state of limbo for up to nine months before an election could be held. In the mean time the president and government would focus the blame for the latest political crisis at the opposition who, more the likely, would lose public support.

A protracted absence of the parliament would undermine Ukraine`s parliamentary democracy and would play into the hands of the president who continues to advocate a return to a presidential "rule by decree" autocracy.

The president during the non-functional period of the parliament would draft up proposed amendments to Ukraine`s Constitution and present them to the electorate for endorsement and adoption, speciously claiming that the revised constitutional amendments would address the ongoing problems of division and political crisis. under these circumstances the president with the support of the government would likely receive the public`s endorsement for any proposed amendments. Under normal circumstances Constitutional amendments without broad consensus and support would fail at a referendum.

The opposition is best waiting for the right time in the lead-up to the presidential elections and then take action to force a simultaneous Presidential and Parliamentary elections But it must be initiated prior to February 2009. In the meantime the opposition should continue to agitate by voicing its concerns and protest within the framework of the parliamentary system.

Alternative justification

It should be noted that the other option and justification for early elections is by agreement or the government losing support of a majority of the parliament.

A vote of no-confidence in the government would trigger other provisions under Ukraine's constitution and the parliament could resolve to dissolve itself and call on the president to convene fresh parliamentary elections.

This tactic would be just as difficult to manage and would still have constitutional hurdles and obstacles to navigate. A divided parliament would work more in favor of the opposition as it would be harder for the president and government to directly attribute blame to the opposition. In any event either option within the first 12 months period would run the risk of wrongfully placing the cause of Ukraine`s ongoing political conflict on the parliamentary system.

It is not the parliamentary system that is at fault but more the failure of the president.

Victor Yushchenko's unconstitutional dismissal of Ukraine`s firth parliament has only exacerbated the political divisions, undermining trust and destabilized Ukraine`s democratic development.

The September 2007 parliamentary elections failed to provide a stable governing majority. Our Ukraine and Yulia Tymoshenko together represent only 45% of the electorate and a majority of two is not a vote of confidence for their policies of reform.

In a state where Constitutional rule of law does not apply anything can happen.

What is clear is that until there is a fresh election, both for the president and parliament, the divisions and distrust in Ukraine will continue to be exacerbated.

Discussion on provisions on Ukraine`s constitution

According to the version submitted by the Justice Ministry to the Venice Commission

Article 90 (3) only applies if a regular session (defined by Article 82 and 83) has not commenced within 30 days from the scheduled date. There are two regular parliamentary sessions, one starts in February and the other in September. A session commences at its opening and can last for one days weeks or even months until its close.

Parliament has commenced its February 2008 "Regular session" therefore the thirty day rule does not apply to the current regular session. The next regular session is scheduled to commence in September.

If parliament has not commenced its proceeding on or after the scheduled date (Article 83) for a period of 30 days then Article 90 (3) applies, but not before.

It is the words "Regular Session" (Article 82 and 83) and the word "commenced" that is the key to its interpretation. It does not refer to a 30 day absence of the parliament sitting.

Once a regular session has commenced Article 90 (3) does not apply to that session.

The other aspect, which has not been widely discussed, is that it is not mandatory for the president to dismiss the parliament under any provision (other then a vote of no confidence). The parliament can continue to exist, as was the case in 2007, in suspension pending the resolve of the head of state.

Article 90 also prevents the president from dismissing the parliament within six months of the scheduled date for the next presidential election.

In summary:

1. Article 90 (3) does not apply to the current Parliamentary Session as the session has already commenced.

2. Article 90 also states ... "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" .. limits the options of the president in dismissing the parliament for a period of 12 months

3. Article 90 prevents the dismissal of the parliament within six months of the date for the next presidential election.

4. The provisions of Article 90 are not mandatory it just gives the president the authority to dismiss the parliament. (Authority under the circumstance Viktor Yushchenko did not have in 2007)



Extracts from Ukraine's Constitution

Article 82


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.

The Verkhovna Rada of Ukraine assembles for its first session no later than on the thirtieth day after the official announcement of the election results.

The first meeting of the Verkhovna Rada of Ukraine is opened by the eldest People’s Deputy of Ukraine.

Article 83

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

...

Article 90

The authority of the Verkhovna Rada of Ukraine is terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation.

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.


By UkrToday for UNIAN

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