Friday, March 05, 2010

New President makes first mistake: Does outcome justify the means?

Ukraine's new President, Viktor Yanukovych, has sought to bypass Ukraine's constitution by passing legislation that seeks to side step Ukraine's Constitutional Imperative mandate provisions.

In what is seen as a test of will and integrity Yanukovych and his party wants to allow individual MP's, not factions, to decide the makeup of Ukraine's governing coalition thus allowing small groups of MP's to be poached and agree to a formation of a new coalition in order to avoid fresh parliamentary elections.

Article 83 of Ukraine's Constitution states:

According to election results and on the basis of a common ground achieved between various political positions, a coalition of parliamentary factions shall be formed in the Verkhovna Rada of Ukraine to include a majority of People’s Deputies of Ukraine within the constitutional composition of the Verkhovna Rada of Ukraine

The proposed rule change is designed to allow renegade members of Our Ukraine -Peoples Self Defense bloc to breakaway from their faction to support the formation of a new coalition with Party of Regions and the possibility of Viktor Yushchenko being appointed Ukraine's next Prime Minister..

In 2007 Yushchenko dismissed the previous Parliament which was lead by Victor Yanukovych arguing at the time that the governing coalition was in contravention to Article 83. Now it appears that he has had a change of heart and is prepared to forsake Ukraine's Constitution.

Bloc Tymoshenko and other members of Our Ukraine-People's Self Defence bloc have rightly argued that the proposed legislation is unconstitutional and has vowed to challenge the law in Ukraine's Courts and appeal to the International community and the Venice Commission to help uphold Ukraine's Constitution. Something they did not do back in 2007 .

This will be Yanukovych's a test of will and process and the legitimacy of the new government.

Members of parliament in Ukraine are elected on the basis of a party/factional bloc lists and not as individuals. By seeking to allow individual MP's to decide who will form a government will leave the parliament in tatters and a state of anarchy with individuals members of parliament acting alone and contrary to the wishes of a majority of their own faction.

Any government appointed under these conditions will not havelegitimacy until Ukraine's Constitutional Court has ruled on the legalityof the proposed law. It is difficult to see under what circumstances the Constitutional Court can support the proposed new law which should only be enacted via a Constitutional amendment and not regulatory legislation.

This will also be another test for the Parliamentary Assembly Council of Europe and the Venice Commission who in 2007 remained silent as Ukraine's past President, Viktor Yushchenko, breached Ukraine's Constitution in dismissing the previous parliament in order to force fresh parliamentary elections. Elections which elected the current parliament. PACE also turned a blind eye to Viktor Yushchenko's illegal interference in the operation and independence of Ukraine's Constitutional Court. The Court never ruled on the question of legality of Yushchenko's actions.

Expediency is no excuse for actions that are unconstitutional. If Yanukovych can not form a new coalition in accordance with Ukraine's Constitutions then he should either seek to amend the Constitution or hold fresh elections. In 30 days time he will have the authority to act and seek a mandate for reform.


Anonymous said...

I do not agree that this article 83 calls for imperative mandate. The election results are manifest in the seating of the individual deputies. After all, each of the blocs and parties have lists, with an order given of candidates. This causes individuals to be elected, members of blocs, some of whom are members of parties that are part of blocs. That this is so is part of the election result also. Nowhere does it say that if Deputy X leaves Faction X that Deputy X can and should be replaced by the leadership of Faction X. This would reverse the election result in the sense that this person got the seat based on his or her position in the list and this would be changed to someone else. Some say that people voted for a bloc, but who is to say that when a party joins a bloc that supporters of that party vote for the bloc's boss and not for their favourite party's boss.

If a bunch of deputies leave BYUT or leave NU they can. The Article 83 however can be said to require them to form a new faction or factions that would then commit themselves to the new coalition.

A real imperative mandate in my opinion would state clearly the right of the leader of a bloc to shuffle the deputies elected under his or her bloc at will, that the deputies are the creatures entirely of the bloc's leadership. That if you vote for a faction, you vote for its leader, and thus the leader controls all the deputies in his or her bloc. Article 83 does not say this nor does it say that anywhere else.

UkrToday said...

I suggest you read the reports published by the Venice Commission and the previous ruling of the Constitutional Court

Article 83 states

"According to election results and on the basis of a common ground achieved between various political positions, a coalition of parliamentary factions shall be formed in the Verkhovna Rada of Ukraine to include a majority of People’s Deputies of Ukraine within the constitutional composition of the Verkhovna Rada of Ukraine."
"Framework for forming, organising, and terminating activities of a coalition of parliamentary factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and the Rules of Procedure of the Verkhovna Rada of Ukraine"

The election list is what determines the faction. A member of Parliament must join and remain a member of the faction that appointed him/her.

Article 81 states
"Where a People’s Deputy of Ukraine, as having been elected from a political party (an electoral bloc of political parties), fails to join the parliamentary faction representing the same political party (the same electoral bloc of political parties) or exits from such a faction, the highest steering body of the respective political party (electoral bloc of political parties) shall decide to terminate early his or her authority on the basis of a law, with the termination taking effect on the date of such a decision."

The "People's party" as they have called themselves were not elected as part of the "Our Ukraine-Peoples self defense faction" There is no provision for sub factions .

This is of course subject to further review and inpterp[reation by the Constitutionbal Court., There is an unknown factor in that the formation and dissolution of factions is determined by law but it can not apply retrospectively. Given that they were not elected as the "People Party" they have no mandate as such.

My interperatation and that expressed by the Venice Commissions is that there is nothing preventing them from voting as indivduals but they can not be considered a faction in their own right.

We will have to wait for the ruling of the Constitutional Court which will take months I am sure. In the meantime the "new government remain in office"

It's never boring when it comes to Ukrainian Politics. There is a good argument for the Westminster system where Ministers can be elected from members of the parliament who remain MP's.

CCU said...

Summary to the Decision of the Constitutional Court of Ukraine no.12-rp/2008 dd. June 25, 2008 on the case upon a constitutional petition of 50 national deputies of Ukraine concerning compliance with the Constitution of Ukraine of Articles 13.5 and 13.6 of the Law of Ukraine “On the Status of a National Deputy of Ukraine”, Article 61.4 of the Rules of Procedure of the Verkhovna Rada of Ukraine and official interpretation of the provisions of Articles 81.2.6, 81.6, 83.6 of the Constitution, Article 13.4 of the Law “On the Status of a National Deputy of Ukraine” (case on stay of a national deputy of Ukraine in a deputy faction)

More information

CCU said...

CCU Document Link: 16-rp-2008.doc

Summary to the Decision of the Constitutional Court of Ukraine no.16-rp/2008 dated September 17, 2008 on the case upon the constitutional petition of 105 People’s Deputies of Ukraine concerning official interpretation of provisions of Articles 83.6, 83.7 and 83.9 of the Constitution of Ukraine (case on coalition of deputy factions in the Verkhovna Rada of Ukraine)