Sunday, June 21, 2009

Venice Commission not an expression of approval or endorsement of Yushchenko's proposed Constitution

The Venice Commission's comments and review of President Yushchenko's proposed Draft Constitution is not an endorsement or statement of approval.

It has correctly stated and criticised the fact that the proposed draft does not address the fundamental issue of conflicts between the various powers

The Venice Commission appears to have brushed over a number of issues, most importantly is the question of competence of Yushchenko's proposed Senate and the fact that the composition and representative model of the Senate does not conform to modern democratic values.

One vote one value denied

The imbalance in Yushchenko's Senate mandate is significant as Western Ukraine under Yushchenko's proposal would have a significant advantage, disproportionally, over Eastern Ukraine. Whilst the commission has touched slightly on this issue it failed to highlight fully the problems and disparity in the proposed model.

The Commission did question the merit and justification of the creation of a federalist bicameral system. (The cost alone of holding a national election every two years is prohibitive and unjustified)

Other issues that the Commission skimmed over where the question of competence and authority of the parliament versus the president.

Yushchenko's proposed Constitution centralises power back in the hands of the president. The president though a serious of vague clauses wields absolute power with limited to no checks and balances.

The limitations on the President's impeachment, which is made somewhat harder if not outright impossible, further prevents and removes the main check and balance of Presidential authority.

Impeachment of the President, under Yushchenko's model, is limited to conviction of an "intentional crime" and can only be enacted by the proposed new Senate, a Senate that is skewed and bias towards giving power and more representation to Western Ukraine (Yushchenko's perceived strong hold)

Foreign Policy vacuum

Yushchenko's proposals raises some interesting questions over the formation of Ukraine's Foreign Policy. Whilst the President has a "leadership role" in foreign affairs it is unclear as to who and what process and how Foreign policy is adopt.

Under Yushchenko's proposals, citizens of Ukraine will be denied a say on foreign Policy formation. Issues such as Ukraine's membership of NATO will not be subject to a National referendum as International treaties are prohibited topics for a referendum.

The other problematic issue in Yushchenko's constitution is the reduction of autonomy given to Crimea. This along with the obvious undemocratic nature of the Senate will give cause for the rejection of Yushchenko's Constitutional reform.

Whilst there are some positives in Yushchenko's draft (Namely some of the changes in the administration of the Judiciary) there are still many issues not address.

The main issue being the divisions of power and the concentration of power in the hands of one individual.

Yushchenko's model is a one way street. Once adopted it will never be changed. There is no turning back

It is unlikely that Yushchenko's constitutional reforms will see the light of day as the current constitution requires the approval of two-thirds of the Parliament in order for it to be adopted. A fact that is clearly stated by the Venice Commission.

If Yushchenko tries to push ahead with his reforms by taking it to referendum, without broad political support it will never be adopted. Even if it he could managed to secure support for the restoration of presidential rule (A fact that is highly unlikely) Ukraine would never be united in its acceptance. Ukraine would be even more divided and unstable as a result.

The way forward.

Ukraine needs to abandon the Presidential system and adopt a full European Parliamentary system in line with other European States taking onto consideration the various issues raised by the Venice Commission not only ion considering Yushchenko's proposed agenda but also the previous revisions that have been reviewed.

The challenge is for the parliament (Most notably Block Yulia Tymochenko and Party of Regions) to adopt those changes that are held in common and to remove the provisions that are unacceptable and do not conform to modern democratic values.

Yushchenko's senate needs major reappraisal and review. There is no real justification for a Senate which is more problematic and cumbersome providing little to no benefit. Ukraine is not a Federation of Oblasts. It does not need or merit a bicameral parliament.

Whilst there is room and the need for reform in Ukraine's Parliamentary representative model, the possible introduction of local multi-member electorates and the introduction of preferential voting should be seriously considered.

One vote one value MUST be the prime goal and principle of any representative model.

Any proposed model MUST be equal in mandate and representation. Fifty electorates each electing nine members of Parliament on a 10% quota an option well worth considering.

See review of Yushenko's proposed constitutional changes