Saturday, June 13, 2009

The Devil is in the detail - Yushchenko's Undemocratic Constitutional Reform

Viktor Yushchenko's proposed Constitution for Ukraine has finally been published in English (Copy here)

Preliminary review of Yushchenko's proposed new Constitution gives rise for serious alarm.

Yushchenko's draft is a complete rewrite of Ukraine's Constitution. It seeks to amend provisions of Ukraine's Constitution that the Parliament is not allowed to change.

Hidden within the text of Yushchenko's proposals is a host of other undemocratic initiates which would diminish and remove Ukraine's democratic rights and equal representation. Rights that other European States take for granted.

Federation of Ukrainian Oblsats/Regions and creation of a an unrepresentative Senate

Yushchenko has proposed the formation of a Federation of Regions that would see Ukraine divided into electoral electoral regions that mirror Ukraine's oblasts and major cities such as Kyiv and Svestopol.

Yushchenko has proposed the creation of a bicameral parliament with the formation of a US styled Senate - A "body of review" that would wield significant power and control over Ukraine's parliament.

The proposed senate is made up of three representatives per electoral region/Oblasts. With one third of the senate facing election every two years elected to a term of office of six years. The lower house "Chamber of deputies" would be elected for a shorter term of four years.

Denial of democratic rights of one vote one value

Yushchenko's senate would create a serious imbalance in the representative structure which would see smaller Western Ukrainian Regions with less then a third of the number of constituents elect the same number of Senators as region that represent three times the number of constituents as the smaller regions.

Yushchenko's model would deny Ukraine the democratic right of one vote one value, giving an unfair and unrepresenatative advantage and added power to Western Ukraine's smaller regions.

The imbalance in power and mandate is further enhanced by Yuschhenko's proposed introduction of US style first-past-the=post voting where the highest polling candidates/parties will elect the regional Senates representatives. The same voters having dominance over electing all three Regional Senate representatives.

Smaller parties such as Bloc Lytvn, the communist party of Urkaine and Yatseniuk's new party will be denied representation in the proposed senate.

Absolute power unchecked - recipe for conflict

The senate would have absolute right of veto overall legislation. When added to the proposed restoration of absolute power of the President would be a recipe for disaster and ongoing division and social conflict.

The President would have absolute and unrestricted right to dismiss Ukraine's parliament establishing Ukraine as an Authoritarian Dictatorship.

President retains absolute immunity and never held accountable for breaches of his oath.

The President would retain absolute immunity from prosecution. Impeachment proceeding against the president would only be available in the event that the president is convicted of a serious crime. Given that the President holds absolute immunity the President would never be held to account as he would never be convicted of a serious crime. The President would not be subject to review or held accountable for breaches of oath or acts of disloyalty to Ukraine placing the President beyond the law.

President's Term of Office extended for life

Further the President of Ukraine would be appointed to the proposed senate with voting rights for life. Even if they are voted out of office.

The proposed Presidential representation for life is not limited to President's who serve two full terms of office. If Yushchenko loses the next presidential election, having only 2% of support he will still be appointed to hold a ex-offico senate position.

Venice Commission Review

The European Venice Commission has been asked to review Yushchenko's proposed draft Constitution. This review will be taken in isolation to other proposals which would also need to be reviewed by Ukraine's Constitutional Court

Given that Yushchenko's proposal seeks to amend provisions of Ukraine constitution that can not be amended by the Parliament his proposed amendments would require approval and support at an All-Ukrainian referendum.

Yushchenko's model for reform will not be well received. Without wide support it is unlikely that Yushchenko's constitution would be adopted.

1 Comment:

UkrToday said...

Yushchenko's Proposed Constitutional reforms does not meet modern democratic values

Yushchenko's draft constitution would see Ukraine become a Presidential autocracy with power concentrated in the hands of the President

Yushchenkos proposed establishment of a bicameral Parliament and the creation of a Senate would futher divide Ukraine and diminish Ukraine's democratic development

The proposed Senatorial model is undemocratic in that it seeks to give greater power and representation to smaller Western Ukrainian regions.

The electorate of Zakarpattia which has just under 600 thousand voters will elect three senators the same number as in Donetsk which has over 2.5 Million constituents.

The distortion in the Senatorial representation is made worst by the proposed implementation of first-past-the-post "Majority" voting where the highest polling candidate/party wins all seats.

Yushschenko's Party "Our Ukraine" based on analysis of the 2007 Parliamentary vote will elect all three Senators in Zakarpattia with 152,886 votes (32%) whilst Block Yulia Tymoshenko with 28% of the vote will go unrepresented.

Party of Regions in Donetsk, with 1.7 million votes, will elect only three Senators.

Further Yushchenko has proposed that past presidents (Including himself) will hold a Senate seat for life. President who are only elected for one tern and are voted out of office would continue to remain in office unelected for life.

The President will have absolute Power and right to dismiss the Chamber of deputies without checks and balances.

There is no provision for the dissolution of the Senate. Senators will hold a six year term of office with one third of the Senators facing election every every two years.

Ukraine would have to fund at least five National elections at a cost of over 100 Million dollars per round during the life of the term of office of the Senate. Simultaneous elections are prohibited.

The President will have absolute immunity and only the Senate can impeach the president if he is found guilty of having "Intentionally" committed a crime. Beaches of oath and Ukraine's constitution whilst grounds for dismissal of judges are not grounds for impeachment.

The President appoints all judges including all judges of the Constitutional Court.

Referendums on issues related to International Agreements such as NATO membership are prohibited.

The Chamber of Deputies right to hold an inquiry is limited to the authority of the Parliament and the Cabinet of Ministers. The Parliament can not review or hold inquires in relation to other issues such as the conduct of the President and Departments under his control.

Public prosecution and the Internal Police are all under the domination of the President with little to no checks and balances in place to prevent misuse and abuse of Presidential power.


Whilst supporters of the President may welcome the restoration of a n Presidential authoritarian state they should think twice before endorsing Yushchenko's proposed constitution.

Recent public opinion Polling indicates that Yushchenko will not be re-elected to a second term of office. Viktor Yanukovch has poll position and will most likely be elected Ukraine's next President

They need to ask themselves is Yushhenko's model for unchecked Presidential power really in Ukraine's best interest? Or is Ukraine better off adopting a Parliamentary democracy in line with other European States.

25 out of 27 member states of the European Union are Parliamentary democracies.

If Ukraine wants to be a member of the EU is it not in its best interest to adopt European standards and European Constitutions as their model for reform.

Once these changes are in place there is no going back as the Constitution will not be able to be readily corrected.