Sixth session: Parliament convenes regular session

February 2, 2010

The Ukrainian Parliament has convened its sixth regular session. It’s commencement has triggered a number of events.

Missing but not forgotten

Constitutional reform – Removal of parliamentary immunity from Criminal prosecution.

The main issue that should be before the parliament is the proposed amendments for Ukraine’s constitution that removes Parliamentary immunity for criminal liability.  Amendments to the Constitution were agreed to and forwarded to the Ukraine’s Constitutional Court for review.

Under the terms of Ukraine’s Constitution (Chapter XIII) the Parliament had to wait until the next regular session before it could finally pass the the proposed amendments.  With the commencement of a new session these amendments can not be passed.

Strangely enough there is no mention of the proposed amendments on the agenda papers and the constitutional Court has still not delivered its decision.  These amendments should have been before the parliament this week and adopted prior to Sundays final presidential ballot. 

The media have been silent and have not raised this issue. Why?

The forced dismissal of Ukraine’s parliament not an option until October

With the holding of the Sixth regular Session then provision of Article 90 of Ukraine’s Constitution can not be activated until October. The Parliament can only be dismissed if the 30 days following the failure of the parliament to convene it scheduled regular session.   Even if Party of Regions their mandate on mass and cancels their electoral list as did Tymoshenko back in in 2007, the parliament can not be dismissed until 30 days following the next regular Parliamentary session which is scheduled to start in September.

The only other option for early Parliamentary elections is if a motion of no confidence is passed in the government or the governing coalition is terminated according to the rules of the Parliament.

The next six months could prove to be another challenge to Ukraine’s political stability and constitutional order.

Extract from Ukraine’s Constitution

Article 83

The Verkhovna Rada of Ukraine works in sessions.

The Verkhovna Rada of Ukraine is competent on the condition that noless than two-thirds of its constitutional composition has been elected.

Article 83

Regular sessions of the Verkhovna Rada of Ukraine commence on the first Tuesday of February and on the first Tuesday of September each year.

Special sessions of the Verkhovna Rada of Ukraine, with thestipulation of their agenda, are convoked by the Chairperson of theVerkhovna Rada of Ukraine, on the demand of the President of Ukraine oron the demand of no fewer People’s Deputies of Ukraine than one-thirdof the constitutional composition of the Verkhovna Rada of Ukraine.

According to election results and on the basis of a common groundachieved between various political positions, a coalition ofparliamentary factions shall be formed in the Verkhovna Rada of Ukraineto include a majority of People’s Deputies of Ukraine within theconstitutional composition of the Verkhovna Rada of Ukraine.

A coalition of parliamentary factions in the Verkhovna Rada of Ukraine shall be formed withina month from the date of the first meeting of the Verkhovna Rada ofUkraine to be held following regular or special elections to the Verkhovna Rada of Ukraine, or withina month from the date when activities of a coalition of parliamentaryfactions in the Verkhovna Rada of Ukraine terminated.

Framework for forming, organising, and terminating activities of acoalition of parliamentary factions in the Verkhovna Rada of Ukraineshall be established by the Constitution of Ukraine and the Rules ofProcedure of the Verkhovna Rada of Ukraine.

Article 90

The authority of the Verkhovna Rada of Ukraine is terminated on theday of the opening of the first meeting of the Verkhovna Rada ofUkraine of a new convocation.

The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if:

(1) there is a failure to form within one month a coalition ofparliamentary factions in the Verkhovna Rada of Ukraine as provided forin Article 83 of this Constitution;

(2) there is a failure, within sixty days following the resignationof the Cabinet of Ministers of Ukraine, to form the personalcomposition of the Cabinet of Ministers of Ukraine;

(3) the Verkhovna Rada of Ukraine fails, within thirty days of a single regular session, to commence its plenary meetings.

The early termination of powers of the Verkhovna Rada of Ukraineshall be decided by the President of Ukraine following relevantconsultations with the Chairperson and Deputy Chairpersons of theVerkhovna Rada of Ukraine and with Chairpersons of Verkhovna Radaparliamentary factions.

The authority of the Verkhovna Rada of Ukraine, that is elected atspecial elections conducted after the pre-term termination by thePresident of Ukraine of authority of the Verkhovna Rada of Ukraine ofthe previous convocation, shall not be terminated within one year fromthe day of its election.

The authority of the Verkhovna Rada of Ukraine shall not beterminated during the last six months of the term of authority of theVerkhovna Rada of Ukraine or President of Ukraine.

Advertisements

Yushchenko veto’s referendum law

September 9, 2009

Ukraine’s President. Viktor Yushchenko, has vetoed the law on the conduct of referendums claiming that the revised law is unconstitutional. Presidential Secretariat representative Maryna Stavniychuk said that ” the law violated the Constitution as it empowers the Verkhovna Rada to schedule all-Ukrainian referendums on the new wording of the Constitution, when the parliament can only schedule referendums on the issues of the Ukrainian territory”.

The statements by Ms Stavniychuk are not backed up by Ukraine’s Constitution.

The Constitutional Court of Ukraine has already ruled on the question related to the changes of Ukraine’s Constitution, which has been backed up by the Venice Commission’s interpretation, that the Constitution of Ukraine requires the consent of two-thirds majority of the parliament.

Article 72 “An All-Ukrainian referendum is designated by the Verkhovna Rada of Ukraine or by the President of Ukraine, in accordance with their authority established by the Constitution.”

Article 73 limits issues altering the territory of Ukraine to be resolved exclusively by an All-Ukrainian referendum (It does not limit the issues that can be decided by referendum)

Article 74 is the only limitation on the holding of a referendum. “A referendum shall not be permitted in regard to draft laws on issues of taxes, the budget and amnesty”

Article 85 states clearly that the The authority of the Verkhovna Rada of Ukraine comprises … (2)”instituting an All-Ukrainian referendum on issues referred to in Article 73 of this Constitution” and most important clause (20) “the organisation and procedure for conducting elections and referendums”

The President of Ukraine also has limited authority over the conduct of referendums in Ukraine. Article 106 The President … (6) “designates an All-Ukrainian referendum regarding amendments to the Constitution of Ukraine in accordance with Article 156 of this Constitution, proclaims an All-Ukrainian referendum on popular initiative”.

Article 156 relates to amendments to Ukraine’s Constitution Chapter I — “General Principles,” Chapter III — “Elections. Referendum,” and Chapter XIII — “Introducing Amendments to the Constitution of Ukraine” which is required to be approved by a referendum.

All other chapters require parliamentary consent.

Viktor Yushchenko has refused to fulfill his constitutional duty in holding a referendum on the question of Ukraine’s membership of NATO. Both the Ukrainian Constitutional and Administrative Courts have ruled that the President is obliged to conduct such a referendum which has been petitioned according to Article 72, by over four million Ukrainian citizens.

Clearly the President is in breach of his oath and Constitutional duties which he selectively interprets to suit himself.


Rule of Law US cone of silence as Yushchenko betrays democratic values

June 10, 2008

I found this extract on the Internet that I think should be noted. I have also posted it on ForiegnNotes, an excellent blog on Ukrainian politics, and well worth reading.

RULE OF LAW

Constitutions

The rock upon which a democratic government rests is its constitution–the formal statement of its fundamental obligations, limitations, procedures, and institutions. The constitution of the country is the supreme law of the land, and all citizens, prime ministers to peasants alike, are subject to its provisions. At a minimum, the constitution, which is usually codified in a single written document, establishes the authority of the national government, provides guarantees for fundamental human rights, and sets forth the government’s basic operating procedures.

Due Process

No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.

In every society throughout history, Frank points out, those who administer the criminal justice system hold power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, and been tortured, exiled and executed without legal justification–and often without any formal charges ever being brought. No democratic society can tolerate such abuses.

Judges may be either appointed or elected to office, and hold office for specified terms or for life. However they are chosen, it is vital that they be independent of the nation’s political authority to ensure their impartiality. Judges cannot be removed for trivial or merely political reasons, but only for serious crimes or misdeeds–and then only through a formal procedure, such as impeachment (the bringing of charges) and trial in the legislature.

Source USInfo.state.gov

US Government turns a blind eye.

Its interesting to note that the US embassy has remained quite as Ukraine’s Head of State, Viktor Yushchenko, clearly breaches his oath and obligations under Ukraine’s constitution. Some how I think had this been in Russia the US would have been singing out loud for all to hear.


Opposition’s Window of Opportunity Limited Early parliamentary elections can only be forced between September 2008 and February 2009

February 13, 2008

Party of Regions window of opportunity to force early parliamentary elections before the scheduled presidential elections is limited.

Published on Unian

According to the English version of Ukraine`s Constitution, as supplied by the Ministry of Justice and published by the European Venice Commission, the authority of the president to dismiss the parliament can not be made until 12 months into the term of office of the current parliament and the parliament must not be able to commence its regular parliamentary sessions. (Articles 82, 83 and 90 of Ukraine`s Constitution)

Regular parliamentary sessions are scheduled to commence in February and September of each year. A session can last for days, weeks or even months.

Article 90 (3) states that if a regular session of parliament is not commenced within 30 days from the scheduled date then the president has the authority to dismiss the parliament.

Once a session has commenced, as is the case with the current session, the 30 day limitation does not apply to that session.

That means that the earliest date the opposition can begin to force an election is September 2008 in anticipation of an October 2008 early 2009 parliamentary election.

If the September regular session is commenced then the last opportunity available is prior to the scheduled commencement of February 2009 session.

Article 90 also provides an additional limitation on the authority of the president to dismiss the parliament.

“The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine”

This would mean that the parliament can not be dismissed within six months of the scheduled presidential election (June 2009 in anticipation of a December 2009/January 2010).

An election can be held within this period if the parliament is dismissed prior to the six month lead-up date.

If the opposition is to force a simultaneous presidential and parliamentary election it must resign its representative mandate and cancel its electoral list prior to the commencement of the September 2008 or February 2009 in order to deny the parliament competency and as such prevent the regular parliamentary session from commencing.

The opposition would need have broad public support for the calling of early presidential and parliamentary elections.

In view of the above limitations it would be a tactical mistake for the opposition to try and force an early election by making the parliament dysfunctional so soon after the last election.

The president is not required to dismiss the parliament if he so chooses

The president can refuse to hold simultaneous presidential and parliamentary elections and if he so decides can also refuse to dismiss the parliament. The provisions of Article 90 are not mandatory. If the president does not dismiss the parliament prior to May/June 2009 the president loses authority to call fresh parliamentary elections prior to the next presidential election .

The government would still remain in office but would be limited by the fact that it could not pass legislation. Ukraine would once again exist in a state of limbo for up to nine months before an election could be held. In the mean time the president and government would focus the blame for the latest political crisis at the opposition who, more the likely, would lose public support.

A protracted absence of the parliament would undermine Ukraine`s parliamentary democracy and would play into the hands of the president who continues to advocate a return to a presidential “rule by decree” autocracy.

The president during the non-functional period of the parliament would draft up proposed amendments to Ukraine`s Constitution and present them to the electorate for endorsement and adoption, speciously claiming that the revised constitutional amendments would address the ongoing problems of division and political crisis. under these circumstances the president with the support of the government would likely receive the public`s endorsement for any proposed amendments. Under normal circumstances Constitutional amendments without broad consensus and support would fail at a referendum.

The opposition is best waiting for the right time in the lead-up to the presidential elections and then take action to force a simultaneous Presidential and Parliamentary elections But it must be initiated prior to February 2009. In the meantime the opposition should continue to agitate by voicing its concerns and protest within the framework of the parliamentary system.

Alternative justification

It should be noted that the other option and justification for early elections is by agreement or the government losing support of a majority of the parliament.

A vote of no-confidence in the government would trigger other provisions under Ukraine’s constitution and the parliament could resolve to dissolve itself and call on the president to convene fresh parliamentary elections.

This tactic would be just as difficult to manage and would still have constitutional hurdles and obstacles to navigate. A divided parliament would work more in favor of the opposition as it would be harder for the president and government to directly attribute blame to the opposition. In any event either option within the first 12 months period would run the risk of wrongfully placing the cause of Ukraine`s ongoing political conflict on the parliamentary system.

It is not the parliamentary system that is at fault but more the failure of the president.

Victor Yushchenko’s unconstitutional dismissal of Ukraine`s firth parliament has only exacerbated the political divisions, undermining trust and destabilized Ukraine`s democratic development.

The September 2007 parliamentary elections failed to provide a stable governing majority. Our Ukraine and Yulia Tymoshenko together represent only 45% of the electorate and a majority of two is not a vote of confidence for their policies of reform.

In a state where Constitutional rule of law does not apply anything can happen.

What is clear is that until there is a fresh election, both for the president and parliament, the divisions and distrust in Ukraine will continue to be exacerbated.

Discussion on provisions on Ukraine`s constitution

According to the version submitted by the Justice Ministry to the Venice Commission

Article 90 (3) only applies if a regular session (defined by Article 82 and 83) has not commenced within 30 days from the scheduled date. There are two regular parliamentary sessions, one starts in February and the other in September. A session commences at its opening and can last for one days weeks or even months until its close.

Parliament has commenced its February 2008 “Regular session” therefore the thirty day rule does not apply to the current regular session. The next regular session is scheduled to commence in September.

If parliament has not commenced its proceeding on or after the scheduled date (Article 83) for a period of 30 days then Article 90 (3) applies, but not before.

It is the words “Regular Session” (Article 82 and 83) and the word “commenced” that is the key to its interpretation. It does not refer to a 30 day absence of the parliament sitting.

Once a regular session has commenced Article 90 (3) does not apply to that session.

The other aspect, which has not been widely discussed, is that it is not mandatory for the president to dismiss the parliament under any provision (other then a vote of no confidence). The parliament can continue to exist, as was the case in 2007, in suspension pending the resolve of the head of state.

Article 90 also prevents the president from dismissing the parliament within six months of the scheduled date for the next presidential election.

In summary:

1. Article 90 (3) does not apply to the current Parliamentary Session as the session has already commenced.

2. Article 90 also states … “The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election” .. limits the options of the president in dismissing the parliament for a period of 12 months

3. Article 90 prevents the dismissal of the parliament within six months of the date for the next presidential election.

4. The provisions of Article 90 are not mandatory it just gives the president the authority to dismiss the parliament. (Authority under the circumstance Viktor Yushchenko did not have in 2007)

Extracts from Ukraine’s Constitution

Article 82

The Verkhovna Rada of Ukraine works in sessions.

The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

The Verkhovna Rada of Ukraine assembles for its first session no later than on the thirtieth day after the official announcement of the election results.

The first meeting of the Verkhovna Rada of Ukraine is opened by the eldest People’s Deputy of Ukraine.

Article 83

Regular sessions of the Verkhovna Rada of Ukraine commence on the first Tuesday of February and on the first Tuesday of September each year.

Article 90

The authority of the Verkhovna Rada of Ukraine is terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation.

The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if:

(1) there is a failure to form within one month a coalition of parliamentary factions in the Verkhovna Rada of Ukraine as provided for in Article 83 of this Constitution;

(2) there is a failure, within sixty days following the resignation of the Cabinet of Ministers of Ukraine, to form the personal composition of the Cabinet of Ministers of Ukraine;

(3) the Verkhovna Rada of Ukraine fails, within thirty days of a single regular session, to commence its plenary meetings.

The early termination of powers of the Verkhovna Rada of Ukraine shall be decided by the President of Ukraine following relevant consultations with the Chairperson and Deputy Chairpersons of the Verkhovna Rada of Ukraine and with Chairpersons of Verkhovna Rada parliamentary factions.

The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election.

The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine.

By UkrToday for UNIAN


Opposition’s Window of Opportunity Limited Early parliamentary elections can only be forced between September 2008 and February 2009

February 13, 2008

Party of Regions window of opportunity to force early parliamentary elections before the scheduled presidential elections is limited.

Published on Unian

According to the English version of Ukraine`s Constitution, as supplied by the Ministry of Justice and published by the European Venice Commission, the authority of the president to dismiss the parliament can not be made until 12 months into the term of office of the current parliament and the parliament must not be able to commence its regular parliamentary sessions. (Articles 82, 83 and 90 of Ukraine`s Constitution)

Regular parliamentary sessions are scheduled to commence in February and September of each year. A session can last for days, weeks or even months.

Article 90 (3) states that if a regular session of parliament is not commenced within 30 days from the scheduled date then the president has the authority to dismiss the parliament.

Once a session has commenced, as is the case with the current session, the 30 day limitation does not apply to that session.

That means that the earliest date the opposition can begin to force an election is September 2008 in anticipation of an October 2008 early 2009 parliamentary election.

If the September regular session is commenced then the last opportunity available is prior to the scheduled commencement of February 2009 session.

Article 90 also provides an additional limitation on the authority of the president to dismiss the parliament.

“The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine”

This would mean that the parliament can not be dismissed within six months of the scheduled presidential election (June 2009 in anticipation of a December 2009/January 2010).

An election can be held within this period if the parliament is dismissed prior to the six month lead-up date.

If the opposition is to force a simultaneous presidential and parliamentary election it must resign its representative mandate and cancel its electoral list prior to the commencement of the September 2008 or February 2009 in order to deny the parliament competency and as such prevent the regular parliamentary session from commencing.

The opposition would need have broad public support for the calling of early presidential and parliamentary elections.

In view of the above limitations it would be a tactical mistake for the opposition to try and force an early election by making the parliament dysfunctional so soon after the last election.

The president is not required to dismiss the parliament if he so chooses

The president can refuse to hold simultaneous presidential and parliamentary elections and if he so decides can also refuse to dismiss the parliament. The provisions of Article 90 are not mandatory. If the president does not dismiss the parliament prior to May/June 2009 the president loses authority to call fresh parliamentary elections prior to the next presidential election .

The government would still remain in office but would be limited by the fact that it could not pass legislation. Ukraine would once again exist in a state of limbo for up to nine months before an election could be held. In the mean time the president and government would focus the blame for the latest political crisis at the opposition who, more the likely, would lose public support.

A protracted absence of the parliament would undermine Ukraine`s parliamentary democracy and would play into the hands of the president who continues to advocate a return to a presidential “rule by decree” autocracy.

The president during the non-functional period of the parliament would draft up proposed amendments to Ukraine`s Constitution and present them to the electorate for endorsement and adoption, speciously claiming that the revised constitutional amendments would address the ongoing problems of division and political crisis. under these circumstances the president with the support of the government would likely receive the public`s endorsement for any proposed amendments. Under normal circumstances Constitutional amendments without broad consensus and support would fail at a referendum.

The opposition is best waiting for the right time in the lead-up to the presidential elections and then take action to force a simultaneous Presidential and Parliamentary elections But it must be initiated prior to February 2009. In the meantime the opposition should continue to agitate by voicing its concerns and protest within the framework of the parliamentary system.

Alternative justification

It should be noted that the other option and justification for early elections is by agreement or the government losing support of a majority of the parliament.

A vote of no-confidence in the government would trigger other provisions under Ukraine’s constitution and the parliament could resolve to dissolve itself and call on the president to convene fresh parliamentary elections.

This tactic would be just as difficult to manage and would still have constitutional hurdles and obstacles to navigate. A divided parliament would work more in favor of the opposition as it would be harder for the president and government to directly attribute blame to the opposition. In any event either option within the first 12 months period would run the risk of wrongfully placing the cause of Ukraine`s ongoing political conflict on the parliamentary system.

It is not the parliamentary system that is at fault but more the failure of the president.

Victor Yushchenko’s unconstitutional dismissal of Ukraine`s firth parliament has only exacerbated the political divisions, undermining trust and destabilized Ukraine`s democratic development.

The September 2007 parliamentary elections failed to provide a stable governing majority. Our Ukraine and Yulia Tymoshenko together represent only 45% of the electorate and a majority of two is not a vote of confidence for their policies of reform.

In a state where Constitutional rule of law does not apply anything can happen.

What is clear is that until there is a fresh election, both for the president and parliament, the divisions and distrust in Ukraine will continue to be exacerbated.

Discussion on provisions on Ukraine`s constitution

According to the version submitted by the Justice Ministry to the Venice Commission

Article 90 (3) only applies if a regular session (defined by Article 82 and 83) has not commenced within 30 days from the scheduled date. There are two regular parliamentary sessions, one starts in February and the other in September. A session commences at its opening and can last for one days weeks or even months until its close.

Parliament has commenced its February 2008 “Regular session” therefore the thirty day rule does not apply to the current regular session. The next regular session is scheduled to commence in September.

If parliament has not commenced its proceeding on or after the scheduled date (Article 83) for a period of 30 days then Article 90 (3) applies, but not before.

It is the words “Regular Session” (Article 82 and 83) and the word “commenced” that is the key to its interpretation. It does not refer to a 30 day absence of the parliament sitting.

Once a regular session has commenced Article 90 (3) does not apply to that session.

The other aspect, which has not been widely discussed, is that it is not mandatory for the president to dismiss the parliament under any provision (other then a vote of no confidence). The parliament can continue to exist, as was the case in 2007, in suspension pending the resolve of the head of state.

Article 90 also prevents the president from dismissing the parliament within six months of the scheduled date for the next presidential election.

In summary:

1. Article 90 (3) does not apply to the current Parliamentary Session as the session has already commenced.

2. Article 90 also states … “The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election” .. limits the options of the president in dismissing the parliament for a period of 12 months

3. Article 90 prevents the dismissal of the parliament within six months of the date for the next presidential election.

4. The provisions of Article 90 are not mandatory it just gives the president the authority to dismiss the parliament. (Authority under the circumstance Viktor Yushchenko did not have in 2007)

Extracts from Ukraine’s Constitution

Article 82

The Verkhovna Rada of Ukraine works in sessions.

The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

The Verkhovna Rada of Ukraine assembles for its first session no later than on the thirtieth day after the official announcement of the election results.

The first meeting of the Verkhovna Rada of Ukraine is opened by the eldest People’s Deputy of Ukraine.

Article 83

Regular sessions of the Verkhovna Rada of Ukraine commence on the first Tuesday of February and on the first Tuesday of September each year.

Article 90

The authority of the Verkhovna Rada of Ukraine is terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation.

The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if:

(1) there is a failure to form within one month a coalition of parliamentary factions in the Verkhovna Rada of Ukraine as provided for in Article 83 of this Constitution;

(2) there is a failure, within sixty days following the resignation of the Cabinet of Ministers of Ukraine, to form the personal composition of the Cabinet of Ministers of Ukraine;

(3) the Verkhovna Rada of Ukraine fails, within thirty days of a single regular session, to commence its plenary meetings.

The early termination of powers of the Verkhovna Rada of Ukraine shall be decided by the President of Ukraine following relevant consultations with the Chairperson and Deputy Chairpersons of the Verkhovna Rada of Ukraine and with Chairpersons of Verkhovna Rada parliamentary factions.

The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election.

The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine.

By UkrToday for UNIAN


Opposition’s Window of Opportunity Limited Early parliamentary elections can only be forced between September 2008 and February 2009

February 13, 2008

Party of Regions window of opportunity to force early parliamentary elections before the scheduled presidential elections is limited.

Published on Unian

According to the English version of Ukraine`s Constitution, as supplied by the Ministry of Justice and published by the European Venice Commission, the authority of the president to dismiss the parliament can not be made until 12 months into the term of office of the current parliament and the parliament must not be able to commence its regular parliamentary sessions. (Articles 82, 83 and 90 of Ukraine`s Constitution)

Regular parliamentary sessions are scheduled to commence in February and September of each year. A session can last for days, weeks or even months.

Article 90 (3) states that if a regular session of parliament is not commenced within 30 days from the scheduled date then the president has the authority to dismiss the parliament.

Once a session has commenced, as is the case with the current session, the 30 day limitation does not apply to that session.

That means that the earliest date the opposition can begin to force an election is September 2008 in anticipation of an October 2008 early 2009 parliamentary election.

If the September regular session is commenced then the last opportunity available is prior to the scheduled commencement of February 2009 session.

Article 90 also provides an additional limitation on the authority of the president to dismiss the parliament.

“The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine”

This would mean that the parliament can not be dismissed within six months of the scheduled presidential election (June 2009 in anticipation of a December 2009/January 2010).

An election can be held within this period if the parliament is dismissed prior to the six month lead-up date.

If the opposition is to force a simultaneous presidential and parliamentary election it must resign its representative mandate and cancel its electoral list prior to the commencement of the September 2008 or February 2009 in order to deny the parliament competency and as such prevent the regular parliamentary session from commencing.

The opposition would need have broad public support for the calling of early presidential and parliamentary elections.

In view of the above limitations it would be a tactical mistake for the opposition to try and force an early election by making the parliament dysfunctional so soon after the last election.

The president is not required to dismiss the parliament if he so chooses

The president can refuse to hold simultaneous presidential and parliamentary elections and if he so decides can also refuse to dismiss the parliament. The provisions of Article 90 are not mandatory. If the president does not dismiss the parliament prior to May/June 2009 the president loses authority to call fresh parliamentary elections prior to the next presidential election .

The government would still remain in office but would be limited by the fact that it could not pass legislation. Ukraine would once again exist in a state of limbo for up to nine months before an election could be held. In the mean time the president and government would focus the blame for the latest political crisis at the opposition who, more the likely, would lose public support.

A protracted absence of the parliament would undermine Ukraine`s parliamentary democracy and would play into the hands of the president who continues to advocate a return to a presidential “rule by decree” autocracy.

The president during the non-functional period of the parliament would draft up proposed amendments to Ukraine`s Constitution and present them to the electorate for endorsement and adoption, speciously claiming that the revised constitutional amendments would address the ongoing problems of division and political crisis. under these circumstances the president with the support of the government would likely receive the public`s endorsement for any proposed amendments. Under normal circumstances Constitutional amendments without broad consensus and support would fail at a referendum.

The opposition is best waiting for the right time in the lead-up to the presidential elections and then take action to force a simultaneous Presidential and Parliamentary elections But it must be initiated prior to February 2009. In the meantime the opposition should continue to agitate by voicing its concerns and protest within the framework of the parliamentary system.

Alternative justification

It should be noted that the other option and justification for early elections is by agreement or the government losing support of a majority of the parliament.

A vote of no-confidence in the government would trigger other provisions under Ukraine’s constitution and the parliament could resolve to dissolve itself and call on the president to convene fresh parliamentary elections.

This tactic would be just as difficult to manage and would still have constitutional hurdles and obstacles to navigate. A divided parliament would work more in favor of the opposition as it would be harder for the president and government to directly attribute blame to the opposition. In any event either option within the first 12 months period would run the risk of wrongfully placing the cause of Ukraine`s ongoing political conflict on the parliamentary system.

It is not the parliamentary system that is at fault but more the failure of the president.

Victor Yushchenko’s unconstitutional dismissal of Ukraine`s firth parliament has only exacerbated the political divisions, undermining trust and destabilized Ukraine`s democratic development.

The September 2007 parliamentary elections failed to provide a stable governing majority. Our Ukraine and Yulia Tymoshenko together represent only 45% of the electorate and a majority of two is not a vote of confidence for their policies of reform.

In a state where Constitutional rule of law does not apply anything can happen.

What is clear is that until there is a fresh election, both for the president and parliament, the divisions and distrust in Ukraine will continue to be exacerbated.

Discussion on provisions on Ukraine`s constitution

According to the version submitted by the Justice Ministry to the Venice Commission

Article 90 (3) only applies if a regular session (defined by Article 82 and 83) has not commenced within 30 days from the scheduled date. There are two regular parliamentary sessions, one starts in February and the other in September. A session commences at its opening and can last for one days weeks or even months until its close.

Parliament has commenced its February 2008 “Regular session” therefore the thirty day rule does not apply to the current regular session. The next regular session is scheduled to commence in September.

If parliament has not commenced its proceeding on or after the scheduled date (Article 83) for a period of 30 days then Article 90 (3) applies, but not before.

It is the words “Regular Session” (Article 82 and 83) and the word “commenced” that is the key to its interpretation. It does not refer to a 30 day absence of the parliament sitting.

Once a regular session has commenced Article 90 (3) does not apply to that session.

The other aspect, which has not been widely discussed, is that it is not mandatory for the president to dismiss the parliament under any provision (other then a vote of no confidence). The parliament can continue to exist, as was the case in 2007, in suspension pending the resolve of the head of state.

Article 90 also prevents the president from dismissing the parliament within six months of the scheduled date for the next presidential election.

In summary:

1. Article 90 (3) does not apply to the current Parliamentary Session as the session has already commenced.

2. Article 90 also states … “The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election” .. limits the options of the president in dismissing the parliament for a period of 12 months

3. Article 90 prevents the dismissal of the parliament within six months of the date for the next presidential election.

4. The provisions of Article 90 are not mandatory it just gives the president the authority to dismiss the parliament. (Authority under the circumstance Viktor Yushchenko did not have in 2007)

Extracts from Ukraine’s Constitution

Article 82

The Verkhovna Rada of Ukraine works in sessions.

The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

The Verkhovna Rada of Ukraine assembles for its first session no later than on the thirtieth day after the official announcement of the election results.

The first meeting of the Verkhovna Rada of Ukraine is opened by the eldest People’s Deputy of Ukraine.

Article 83

Regular sessions of the Verkhovna Rada of Ukraine commence on the first Tuesday of February and on the first Tuesday of September each year.

Article 90

The authority of the Verkhovna Rada of Ukraine is terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation.

The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if:

(1) there is a failure to form within one month a coalition of parliamentary factions in the Verkhovna Rada of Ukraine as provided for in Article 83 of this Constitution;

(2) there is a failure, within sixty days following the resignation of the Cabinet of Ministers of Ukraine, to form the personal composition of the Cabinet of Ministers of Ukraine;

(3) the Verkhovna Rada of Ukraine fails, within thirty days of a single regular session, to commence its plenary meetings.

The early termination of powers of the Verkhovna Rada of Ukraine shall be decided by the President of Ukraine following relevant consultations with the Chairperson and Deputy Chairpersons of the Verkhovna Rada of Ukraine and with Chairpersons of Verkhovna Rada parliamentary factions.

The authority of the Verkhovna Rada of Ukraine, that is elected at special elections conducted after the pre-term termination by the President of Ukraine of authority of the Verkhovna Rada of Ukraine of the previous convocation, shall not be terminated within one year from the day of its election.

The authority of the Verkhovna Rada of Ukraine shall not be terminated during the last six months of the term of authority of the Verkhovna Rada of Ukraine or President of Ukraine.

By UkrToday for UNIAN


Retrograde Step Presidential Law on Cabinet of Ministers seeks to unconstitutionally usurp power and authority from Ukraine’s parliament

January 16, 2008

There is no rush for this new law to be passed. It can and should be deferred pending the review of the Courts and recommendations for proposed constitutional reform

The proposed new law on the Cabinet of Ministers, as outline in the article below, clearly is in breach of the constitution in that the President is seeking to usurp power and authority of the parliament by making the office of the president the sole authority to appoint the Prime-Minster, Defence Minister and Foreign affairs Minster.

“The provisions that stipulate that proposals on a candidate for the post of Prime Minister can be submitted by a coalition of parliamentary factions is withdrawn. This right remains exclusively with the President, as stipulated in the Constitution,» Shlapak said.

Moreover, according to him, the draft law clearly stipulates the reasons for which the President can reject a candidate for the post of Prime Minister. “

The statement above is false and misleading as the authority of appointment of Prime Minster, defence Minister and the Foreign Affairs does not lie with the President. The President has only the authority to make a submission on the appointment.

Yulia would be well advised to delay passing of the new Law on the Cabinet of Ministers pending the outcome of

1) the Constitutional Court review of the law as referred to the Court by Yushchenko in 2007.

2) review by the European Council’s Venice Commission. Then and only then should parliament consider support for the proposed new law.

If this law is passed then undoubtedly it will be referred to the Constitutional Court for review by no less then 45 members of parliament. In the meantime the new law will be in force be it unconstitutional. Yulia should wait for the initial ruling before signing her own political death warrant.

In the absence of a detailed copy of the proposed law and based on the comments contained in the article below the President’s proposed Law on the Cabinet of Ministers could very much be challenged and subject to review by Ukraine’s Constitutional Court. (Assuming Yushchenko will not act to pervert the course of justice and interfere with the independence of Ukraine’s Constitutional Court

The proposed law on the Cabinet as outlined below would see the President have sole authority in the nomination and appointment of who holds what position.

Currently the president only has the right of nomination or right to make a submission but the appointment is constitutionally the responsibility of the Parliament. Yushchenko’s proposed Law seeks to usurp that power and authority and place absolute control back into the hands of the president. Such a Law would see Yulia Tymoshenko once again subject to dismissal and the appointment as the president’s nominee.

The definition of what is and what is not constitutional ultimately can only be decided by Ukraine’s Constitutional Court. The President specious claims that the current law on the Cabinet is unconstitutional has not been established. It is most likely that the proposed new law put forward by Yushchenko is unconstitutional.

Article 83 paragraph 8 of Ukraine’s Constitution states:

A coalition of parliamentary factions in the Verkhovna Rada of Ukraine submits to the President of Ukraine, in accordance with this Constitution, proposals concerning a candidature for the office of the Prime Minister of Ukraine and also, in accordance with this Constitution, submits proposals concerning candidatures for the membership of the Cabinet of Ministers of Ukraine.

The above article clearly states that the Parliament is the body that makes a submission/nomination/proposal concerning the candidature for Prime-Minster and Cabinet Ministers

The authority to make the appointment as stated in Article 85 section (12) is the right of the parliament with the President maintaining the right to make a submission only : The decision of appointment is the Parliaments authority not the president’s.

The authority of the Verkhovna Rada of Ukraine comprises:

(12) appointing to office – upon the submission by the President of Ukraine – the Prime Minister of Ukraine, the Minister of Defence of Ukraine, the Minister of Foreign Affairs of Ukraine; appointing to office – upon the submission by the Prime Minister of Ukraine – other members of the Cabinet of Ministers of Ukraine, the Chairperson of the Antimonopoly Committee of Ukraine, the Head of the State Committee on Television and Radio Broadcasting of Ukraine, and the Head of the State Property Fund of Ukraine; dismissing from office the officials mentioned above; deciding on the resignation of the Prime Minister of Ukraine and of members of the Cabinet of Ministers of Ukraine;

Clearly it is the Parliament that makes the appointment of the Prime Minister ad members of the Cabinet 9I;including the Foreign Affairs Minister and Defence Ministers. The parliament can also dismiss members of the cabinet.

Article 106 clause 9 requires the president to perform certain administrative functions within a fifteen day period, in recognition of the authority and nomination of the parliament submitted under Article 83 as outlined above.

The President of Ukraine

(9) puts forward, upon the proposal by the parliamentary coalition formed in the Verkhovna Rada of Ukraine as provided for by Article 83 of the Constitution of Ukraine, the submission on the appointment by the Verkhovna Rada of Ukraine of the Prime Minister of Ukraine, no later than fifteen days after the receipt of such a proposal;

Article 106 clause 10

Again states that the President has the right to make a submission on the appointment of Minster for defence and Minister of Foreign Affairs

It does not give the president the right to make the appointment which is clearly the prerogative and constitutional authority of the Parliament not the President

(10) puts forward to the Verkhovna Rada of Ukraine the submission on the appointment of the Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine;

Ukraine is a constitutional parliamentary democracy

The current law on the Cabinet of Ministers codifies the administrative procedures that govern the president’s submission and the parliament’s appointment. It does not takeaway the constitutional rights or obligations of the President. Howwver the new law as proposed by the office of the President most certainly appears to remove the rights and obligations of Ukraine’s parliament.

Yushcheko’s proposed new law seeks to reinstate presidential authority over government where the president has no power or authority to do so.

Extract from article

President Viktor Yushchenko has proposed that the parliament adopt a new Law on Cabinet of Ministers.

Oleksandr Shlapak, the Presidential Secretariat’s first deputy head and presidential representative in the Cabinet of Ministers, announced this.

According to him, Yushchenko sent the relevant draft law to the parliament on January 10 for urgent consideration.

Shlapak said that this draft law provides for abrogating the current Law on Cabinet of Ministers because some of its provisions violate the Ukrainian Constitutions.

In particular, Shlapak explained that the draft law outlines procedures for forming a government in accordance with the requirements of the Constitution.

These procedures deal with submission of candidacies for the post of Prime Minister to the parliament.

«The provisions that stipulate that proposals on a candidate for the post of Prime Minister can be submitted by a coalition of parliamentary factions is withdrawn. This right remains exclusively with the President, as stipulated in the Constitution,» Shlapak said.

Moreover, according to him, the draft law clearly stipulates the reasons for which the President can reject a candidate for the post of Prime Minister.

The draft law also stipulates that the Defense Minister and the Foreign Affairs Minister are to be appointed exclusively at the initiative of the President and not at the initiative of the Prime Minister.

According to Shlapak, the draft law also provides for a mechanism according to which a candidate for the post of Prime Minister is to present the action program of his/her future government, and this mechanism stipulates that such a program should be based on political positions and programmatic tasks agreed by a coalition of parliamentary factions and that the program should be approved simultaneously with presentation of the Prime Minister.

The draft law also provides for improving the mechanism for interaction between government ministries and territorial agencies.

Moreover, it provides for changing the procedures for nominating candidates for posts of deputy minister: the current law stipulates that deputy ministers are to be appointed at the recommendation of the Prime Minister while the proposed law stipulates that deputy ministers are to be nominated by the relevant ministers at meetings of the Cabinet of Ministers.

Furthermore, Shlapak said that the draft law provides for restoring the President’s power to raise the issue of the Cabinet of Ministers’ responsibility with the parliament.

The draft law also regulates the issue of co-signing of presidential acts by the Prime Minister and individual ministers.

It also provides for the possibility of including members of the government and heads of other executive government organs in working groups set up by the President. The current Law on the Cabinet of Ministers prohibits this.