Friday, April 09, 2010

Constitutional Court ruling removes Ukraine's Imperative Mandate

The ruling of Ukraine's Constitutional Court on the question of the formation of the new Government has a major implication over Ukraine. It effectively removes Ukraine's Imperative mandate provisions. The ruling is at odds with Courts previous ruling and the wording of Ukraine's Constitution itself.

It most certainly will need to be reviewed by the European Venice Commission as it also has implications on their reports. Whilst the ruling has some standing in relation to decisions of the parliament it appears to ignore the fact that there is a limitation on the question of the formation of the governing coalition. It also means that the parliament can by regulation or basic law modify the intent of the Constitution itself.

Article 83 (Paragraph 6) 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 key question is the definition of "parliamentary factions".

Paragraph 9 states

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.
It is this clause that gives power and authority to the Parliament to establish laws and regulations pertaining to the formation of the government.

In most western democracies a minority government is possible provided they can maintain the support and confidence of a majority of the Parliamentary representatives. There is no question that the current government has the support of a majority of members of parliament, but its only has this support as a result of members of of parliament that have acted as individuals outside the determination of the faction  that elected them.

Article 81 of Ukraine's Constitution (Which only recovered a cursory mention in the Constitutional Courts latest ruling) limits a members of parliaments mandate and authority in that they must remain members of the the faction that elected them to office.

There are five factions that secured representation in Ukraine.  (Party of Regions, Bloc Tymoshenko, Our Ukraine-Peoples' Self Defence, the Communist Party of Ukraine and Bloc Lytvyn).

Only Party of Regions, The Communist Party and Bloc Lytvyn have formally resolved to join the coalition.  Together they do not represent a majority of the parliament.  It is only with the support of breakaways MP's that the current government can maintain a majority of the Parliament.

Article 83 requires that the formation of the governing coalition be made by factions that combined represent a majority of of the 450 member parliament.  The ruling of the Constitutional Court, which is final and can not be appealed, have ignored this provision and given it a much broader application then previously considered to exist.

In 2007 Viktor Yushchenko dismissed Ukraine's previous Parliament, in doing so he claimed that the support of the governing coalition was in breach of Ukraine's Imperative Mandate provisions.  Yushchenko acted to prevent the parliament from securing support to implement proposed amendments to Ukraine's Constitution  which require the support of 300 embers of parliament.  The previous Parliamentary government headed by Ukraine's (now President), Viktor Yanukovych, was formed with the support of three factions (Party of Regions, The Socialist Party and the Communist Party of Ukraine) which in turn reperesented a majority of the Parliament.

Decisions of the parliament are determined by an absolute majority of the parliament (226 out of 450).  Certain decision such as amendments to Ukraine's constitution require the support of a Constitutional majority of the parliament.  Decisions are not restricted to factions, a member of parliament can act independently in supporting any legislative initiative including Constitutional reform, legislation or votes of confidence in the governing coalition.

The latest ruling of the Constitutional Court has confirmed this fact, which brings Yushchenko's actions back in 2007 into question.   The problem is the ruling of the latest ruling of the Constitutional Court has gone beyond establishing the rights of MPs to caste their vote as individuals.,  It has nullified the provision that the formation of the governing coalition is to be made by parliamentary factions, something that all players including the Venice Commission had previous thought was required.  This has significantly changed the dynamics of party politics in Ukraine.

The provisions of Article 81 of Ukraine's Constitution has not been addresses and in theory Our Ukraine-Peoples Self defense and Bloc Yulia Tymoshenko can seek in enforce party/faction discipline by expelling those rebel members of Parliament who have acted outside the faction. A process which would be very destructive and paved with numerous obstacles not the least further court challenges.

The opposition factions could try and force fresh elections by resigning their mandate and cancelling their electoral lists. Article 82 second paragraph states
The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected

 It was on this basis that agreement was finally reached to allow the early 2007 Parliamentary election to take place although it was never tested in courts. There is no guarantee that mass resignation and cancellation of a party list would force parliamentary elections to be held, or that fresh elections would deliver a change in outcome.

The opposition is losing  ground,  Yulia Tymoshenko has claimed that the decision of the Constitutional Court is tainted by allegations of bribery and corruption.  Whilst the decision of the Court gives some conjecture to this allegation, Tymoshenko has to date not provided and solid evidence that this is the in fact true. She needs to substantiate her allegations beyond conjecture.

One possible option is for the decision of the Court to be reviewed by the European Venice Commission to determine if it complies with International standards of law   The Venice Commission is the most qualified body to undertake a review even though it has no legislative enforcement.  Its report would go a long way towards raising the overall acceptance of the Courts decision. However the Commission will be reluctant to be seen to undermine the sovereignty and Constitutional authority of a member state.

Had the Venice Commission reflected on the Constitutionality of Yushchenko's decision back in 2007 Ukraine may not have been in the current situation it now finds itself. This is one issue that the Venice Commission can not ignore as they will have to reflect on it at some stage,in the future, better sooner then later.

What is clear is that this latest ruling by Ukraine's Constitutional Court will be widely debated and will most likely be considered as part of any for proposed Constitutional reform