Monday, August 29, 2011

Estonia: Demonstrates the suitability of a parliamentary appointed head of state

The Estonian Parliament has re-elected its head of state,  President Toomas Hendrik Ilves, demonstrating there is no need for a direct election of its president.  Estonia is a full Parliamentary democracy and it's head of state is elected by a two-thirds constitutional majority of Estonia 101 member Parliament. This process allows Estonia to avoid the high cost of expenditure that is required for conduct direct elections and for candidates to run campaigns.  It is a system that Ukraine should also adopt.  In 2009 Ukraine came close to doing just that but Vikor Yushchenko opposed this model.

The Estonian president's powers are largely ceremonial is modeled in the Finish Constitution which also has it's Parliament elect its head of state.

Estonia, which joined the eurozone on Jan. 1, now has one of the best performing economies in the debt-ridden 17-nation currency bloc.

Economic output increased 8.4 percent annually in the second quarter, and Estonia's public debt is the lowest in the eurozone.

"Little by little, we're becoming a boring Nordic country," Ilves told lawmakers after the vote, referring to the more prosperous welfare states across the Baltic Sea


Saturday, August 27, 2011

Ukraine's proposed new Parliamentary structure

Ukraine's Draft Law on the election of members of Parliament of Ukraine (Source: Venice Commission) will make things worst.

The MMP system does not work. It creates two levels of unequal mandates within the same chamber. It did not work before so what makes them think it will work now?

1. Under the draft proposal single member electorates will be decided by a first past the post voting system whoever wins the highest vote wins the seat. This means in a three cornered seat of say 34.0%, 33.5% and 32.5% the person with 34% of the vote wins, even though 66% are opposed to them.

2. The remaining seats are filled using a party list system but the threshold quota will be increased

If they MUST have a divided mandate (Local versus national interests) then create a bicameral parliament with the Senate elected on a national interest mandate and the legislative assembly (lower house) elected on a local mandate.

Any single member electorate MUST be decided by an absolute majority vote (50% or more) this can be achieved by adopting a preferential voting system (Instant Run Off voting) Each candidate is ranked in order of preference. If no candidate has 50% or more first votes then the candidate(s) with the lowest vote is excluded and their votes redistributed according to the voters choice. This process repeates until a candidate has 50% or more votes. Like the two round presidential system but One round of voting only.

A prefered more democratic model
Is to establish 45 to 50 local regional electorates of roughly similar size in numbers of voters. Each electorate would elect nine members of parliament using a Single Transferable Voting Proportional representation system. The quota for electing an candidate would be 10%. Those candidates that fall below the quota would not be disenfranchised as their vote would be transferred according to voters nominated preferences and used to make up and determine a successful Candidate's 10% quota. Method of counting the vote to be either Meek or Wright.

You get the best of all models. A single house, local electorates, equal mandates, and democratically elected representatives.


Thursday, August 25, 2011

Ukraine: Only 5,000 protestors protest on Ukraine's Independance day,

5,000 people protest on Ukraine's Independence day admist reports of minor clashes with police and protestors who played up for the cemeras.  This is a very small number even by Ukrainian standards.  It looks like Viktor Yushenko's detrayal has taken its toll and Ukraine is no longer willing to defend democratic values.  Such is the extent of Yuzhshenko's detrayal. No one will trust him or democracy again.

Two decades and Ukraine is still not a democracy. 
The main obstacle being the President.  Former President Viktor Yushchenko opposed Ukraine becoming a full parliamentary democracy which would have seen power removed from the office of the President. 

Yushchenko's term of office was a complete disappointment with what few positives there were being overshadowed by negativity, division and betrayal.

Viktor Yanukovych when Prime Minister advocated democratic reform but soon after wining the Office of the President sought to consolidate power and reverse the democratic reforms that were made in 2005.

Ukraine will never be a free independent democratic state as long as it is beholden and subjected to presidential authority.

If Ukraine wants to be free it needs to adopt European values and European models of parliamentary governance as recommended by PACE and the Venice Commission.


Wednesday, August 24, 2011

20 years: Ukraine's struggle for Independence denied

"In addition, Ukraine has successfully written its own constitution and established democratic mechanisms for the distribution of power and election of representative officials."  - Kyiv post opinion

Ukraine's Constitution unlike other successful former USSR states took 5 years to agree to and unfortunately retained the autocratic presidential system of "rule by decree" governance,

Ukraine has never been a democratic state.  It came close in 2004/5 not by design but as a compromise arising from the Orange Revolution,  Ukraine managed to adopt a Parliamentary system of government.  It was a step in the right direction but it did not go far enough.  It retained provisions that allowed Viktor Yushchenko to wreck havoc and deny Ukraine the rights of self governance.

Yushchenko continually undermined Ukraine's democratic development by refusing to allow Ukraine to complete the transition for autocracy to democracy. His hatred of democratic rule was so great that in 2007 he unconstitutionally dismissed Ukraine's arguably most democratically elected Parliament causing seven months of political and civil unrest.  The parliament that followed was even more unstable and riddled with conflict. By 2010 Victor Yushchenko was so disliked and distrusted by the Ukrainian population that his support rating had dropped to below 5%. The people of Ukraine had lost faith in Ukraine's pursuit of democracy the 5 years of Yushchenko only delivered division and discontent.

In 2010 Yushchenko lost his bid for re-=election and tireless worked to extract revenge against those who helped get him elected in the first place.  He betrayed Ukraine and they abandoned him.

One by one Viktor Yushchenko betrayed his allies.

Yushchenko first went after Tymoshenko but that failed.  Then in 2006 he refused to form a governing coalition and attacked the Socialist Party by refusing to share political power and appoin Olexandr Moroz to teh position of Parliamentary speaker. This resulted in the collapse of the Organge revolution and the allowed the formation of a new political alliance which saw Viktor Yanukovych elected to the position of Prime Minister.  For good or worst.  Ukraine achieved a decree of stability yet Yushchenko continued to oppose democratic rule and consistently destabilised Ukraine's internal and external relationships.

In 2007 Yushchenko's decision to dismiss Ukraine's Parliament was the beginning of Ukraine’s down fall.

The election that followed saw Ukraine even more divided and unstable.  Block Tymoshenko and a reformed alliance under the President's party "Our Ukraine" held a majority of the parliament by one vote. Even on the first day the parliament was unworkable with members of Our Ukraine threatening to cross the floor and support a vote of no confidence in the new government.

In the days months and years that followed Viktor Yushchenko continued to further destabilise Ukraine's Parliamentary democracy.  In 2008 a new alliance was reached between Block Tymoshenko the remnants of Our Ukraine that remained committed to a democratic future and Block Lytvyn lead by Vladimir Lytvyn who was elected speaker. (The same positioon that Yushchenko refused to offer Social Pafrty Leader Olexandr Morz back in 2006) This reduced Yushchenko's influence and effectiveness.

During 2008 and 2009 Yushchenko continued to wreck havoc on Ukraine. Blocking all efforts to have him removed from office. (Something that should have happened back in 2007 when he breach Ukraine's Constitution)  Yushchenko having lost office sought to extract revenge against those that he betrayed by supporting the election of Party of Regions, Viktor Yanukovych to the office of President.

Within the first year Yanukovch, who had previously supported Ukraine becoming a Parliamentary democracy, soon abandoned that ideal and proceeded to consolidate power and manipulating Ukraine's Constitutional Court to the dismantle Ukraine's parliamentary system and revert back to a presidential autocratic system.

It greatest mistake was not adopting a parliamentary system for day one as did Poland and the Baltic States.

Ukraine had never been given a real chance for self governance. It people have suffered as a result of the power struggle between the parliament and the president, democracy and autocracy.

Its second greatest mistake was electing Viktor Yushchenko to office.  Yushchenko caused more harm than good.  If it was not for Yushchenko and his consistent undermining of democracy in Ukraine the people of Ukraine would not have stood by and allowed Viktor Yanukoyvch to wind back Ukraine's push towards democracy.  It would not have allowed Yanukoych to assume absolute power or dominance. It only did so because Ukraine was so disillusioned by Yushchenko's term of office and the ongoing division and instability he created.

The presidential system has failed Ukraine. Ukraine will never be a true democratic state under presidential authority. Given the strangle hold over power that Yanukovych has managed to secure it is unlikely that Ukraine will be able to regain the momentum and opportunity to become a full parliamentary democracy based on European values and European models of governance. 

Opportunity lost opportunity denied. All thanks to one man Viktor Yushchenko, the betrayer.


Saturday, August 20, 2011

Worrying times and signs of repression: Ukraine faces international condemnation on its 20th anniversary

Ukraine is standing at the precipice with claims that the current administration is pursuing a policy of political retribution intimation and harassment.four members of the opposition are in detention and facing prosecution for decisions made whilst they were in government. The processes embarked on by the courts has violated the constitutional and human rights of those involved.  At the heart of the allegations is ex Ukrainian President Victor Yushchenko who himself has escaped prosecution for his abuse of power when he was in office. Yushchenko appears to have secured immunity from prosecution for himself and his family whilst extracting revenge from those who he had betrayed.

Foreignnotes has an excellent number of articles and commentary on the events surrounding this case including a link to a report by the Danish Helsinki Committee for Human Rights.  This report is a must read to try and understand some of the maneuvering that has been going on.

As Ukraine is about to celebrate its 20th Anniversary pressure builds on the international community to speak out against this abuse of power and authority. Yanukoych may have dug himself a hole that he can not climb out of. A hole that has the potential to cave in on top of Ukraine already weakened by the global financial crisis.


Tuesday, August 16, 2011

Constitutional review: Venice Commission on Law 222 and Ukraine's Constitution

I thought it is worth while publishing a reference to a review by the Venice Commission. on the changes to Ukraine's Constitutional Order.  As usual the comments of the Venice Commission lie deep within the use of text.  but the message is clear for those that have a good command of the English legal language.

Some paragraphs of note:

26. As mentioned above, on 30 September 2010, the CCU (hereinafter, “the 30 September Judgment”) issued a Decision declaring Law No. 2222 unconstitutional “due to a violation of the constitutional procedure of its consideration and adoption”18. The main argument is that the Verkhovna Rada has overstepped its competences fixed in Article 159 of the Constitution, as it cannot amend the Constitution without a Constitutional Court opinion.
In fact, according to Article 159 of the Constitution, a draft law on introducing amendments to the Constitution can only be considered by the Verkhovna Rada “upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution”. In this context, the Constitutional Court may analyse three questions: are human and citizens’  rights abolished or restricted? Is the revision of the Constitution oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine? Have the amendments already been introduced?

IV Assessment of the present constitutional situation
A. Constitutional Court – The 30 September Judgment
29. It is not the task of the Venice Commission to review decisions by national constitutional courts, which are the institutions with the authority to provide a final interpretation of the Constitution. The Commission therefore refrains from taking a position on whether this Decision of the Court is justified or not . Nevertheless, some general remarks seem appropriate.
30. There is no generally accepted standard in comparative constitutional law regarding the participation of constitutional courts in the constitutional amendment process. In its recent Report on Constitutional Amendment, the Venice Commission noted that while some  European countries explicitly provide for such a possibility, the posterior judicial review of adopted constitutional amendments is a relatively rare procedural mechanism. In some countries, judicial review of constitutional amendments is in theory possible, but has never been applied in practice. In others, it has been rejected on the basis that the courts as state organs cannot place themselves above the constitutional legislator acting as constitutional power. A system which has firmly rejected judicial review of constitutional amendments is the French system, under which this is not considered within the competence of the Conseil Constitutionnel (or any other court), because the constitutional legislator is sovereign, therefore constitutional amendments cannot be subject to review by other bodies (themselves created by the Constitution)
31. While the Ukrainian Constitution (in its two versions, from 1996 and 2004) explicitly provides for a mandatory preliminary review of a draft law on constitutional amendments (see above, paragraph 24), it remains silent as to the possibility of the CCU to review the  constitutional amendments once they have entered into force. In 2006, an amendment to the Law on the Constitutional Court specifically excluded “laws of Ukraine on introducing amendments to the Constitution of Ukraine that entered into force” from the jurisdiction of the CCU.
As Constitutional Courts are bound by the Constitution and do not stand above it, such decisions raise important questions of democratic legitimacy and the rule of law.
37. It is clear that a change of the political system of a country based on a ruling of a constitutional court does not enjoy the legitimacy which only the regular constitutional procedure for constitutional amendment, and preceding open and inclusive public debate can bring.
In the Venice Commission’s opinion, the jurisprudence of a Constitutional Court has to be consistent and based on convincing arguments in order to be accepted by the people.  Changes in the case-law have to be well-founded and explained in order not to undermine legal certainty. The principle of legal certainty, being one of the key elements of the rule of  law, also requires that when declaring a constitutional amendment unconstitutional the time elapsed since its adoption is taken into account. Moreover, when a court’s decision is based on formal or procedural grounds only, the substantive effect of such a decision should also be taken into account. In other words, the final decision should be based on a proportionality test where the requirement of constitutionality should be balanced against the negative consequences of the annulment of the constitutional amendment in question.

The Venice Commission has rightly questioned the methodology and determination of Ukraine's Constitutional Court.  Its lack of consistency and reference to existing case law undermines the law itself.

The reports goes on to explain a number of issues that are left unaddressed. It is a report well worth reading BUT it needs to be stressed that the reader needs to look beyond the niceties of diplomatic review of a sovereign country.  It is this "Nicety" that has prevented the Venice Commission from speaking out.

The Venice Commission failed to speak out when Viktor Yushchenko, Ukraine's previous President beached Ukraine's Constitutional norms and illegally interfered with the independence of Ukraine's constitutional Court.  Its failure to speak out then and to hold Yushchenko to account has in a large extent contributed to the causal events that have unfolded in Ukraine since.    Sometimes it pays to just say exactly what they mean and place the principle of constitutional order above that of diplomatic niceties.  A stitch in time can save nine.