Sixth session: Parliament convenes regular session

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.

President’s party falls below 4% Our Ukraine takes a dive

Support for Victor Yushchenko’s Politcial party Our Ukraine has fallen to below 4% as the President seeks to hold on to power by dismissing his second parliament in as many years.

The poll undertaken by the Institute of Sociology of the National Academy of Sciences of Ukraine indicates that 5 Polictial Parties would be elected to parliament if fresh elctions were held between August 15-27.

Party of Regions (26.6%) 189 Seats
BYuT (22.2%) 158 Seats
CPU (5.4%) 38 Seats
Lytvyn’s Bloc (5.1%) 36 Seats
Our Ukraine (3.9%) 28 Seats *

Other parties in contention but below the 3% representation threshold include

Progressive Socialist Party (1.9%)
The People’s Self-Defense Bloc (1.8%)
The Socialist Party of Ukraine (1.1%)
The United Center party (0.5%)

Others parties and blocs would receive 2.6%.

9.1% of those polled would vote against all, and 19.7% refused to respond.

The poll also reported that 68.5% of respondents would take part in the snap poll with 24.7% stating they wouldnot partipate with 6.7% unable answer the question.

* It is unkown if Peoples’ Self-defence will remain a faction partner with Our UkraineThey could stand alone or seek to join Block Yulia Tymoshenko, it isunlikely they will remain a partner with Our Ukaine

Presidential elections.

The same poll indicated that if the presidential elections were held:
Victor Yanukovych PoR (27.8%)
Yulia Tymoshenko -BYuT( 22.5%)
Petro Symonenko – CPU (5%)
* Victor Yushchenko (4.7%)
Volodymyr Lytvyn (3.8%)
Arseniy Yatseniuk – OU (2.7%)
Natalya Vitrenko – PSPU (1.7%)

* Incumbent

President’s party falls below 4% Our Ukraine takes a dive

Support for Victor Yushchenko’s Politcial party Our Ukraine has fallen to below 4% as the President seeks to hold on to power by dismissing his second parliament in as many years.

The poll undertaken by the Institute of Sociology of the National Academy of Sciences of Ukraine indicates that 5 Polictial Parties would be elected to parliament if fresh elctions were held between August 15-27.

Party of Regions (26.6%) 189 Seats
BYuT (22.2%) 158 Seats
CPU (5.4%) 38 Seats
Lytvyn’s Bloc (5.1%) 36 Seats
Our Ukraine (3.9%) 28 Seats *

Other parties in contention but below the 3% representation threshold include

Progressive Socialist Party (1.9%)
The People’s Self-Defense Bloc (1.8%)
The Socialist Party of Ukraine (1.1%)
The United Center party (0.5%)

Others parties and blocs would receive 2.6%.

9.1% of those polled would vote against all, and 19.7% refused to respond.

The poll also reported that 68.5% of respondents would take part in the snap poll with 24.7% stating they wouldnot partipate with 6.7% unable answer the question.

* It is unkown if Peoples’ Self-defence will remain a faction partner with Our UkraineThey could stand alone or seek to join Block Yulia Tymoshenko, it isunlikely they will remain a partner with Our Ukaine

Presidential elections.

The same poll indicated that if the presidential elections were held:
Victor Yanukovych PoR (27.8%)
Yulia Tymoshenko -BYuT( 22.5%)
Petro Symonenko – CPU (5%)
* Victor Yushchenko (4.7%)
Volodymyr Lytvyn (3.8%)
Arseniy Yatseniuk – OU (2.7%)
Natalya Vitrenko – PSPU (1.7%)

* Incumbent

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

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

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

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

Tymoshenko PM by one

Yulia Tymoshenko appointed Prime-minister of Ukraine for a second time.

In what was a laborious, tedious and marginally victorious event Yulia Tymoshenko was declared elected with a majority of one.

226 out of 450 members of Ukraine’s parliament one by one raised their hand and voted for Tymoshenko.

The roll call and show of hands was required in order to ensure that members of her own coalition who are opposed to her appointment towed the party line. Proposals to hold a secrete ballot having been rejected by parliamentary coalition.

Yulia Tymoshenko failed to achieve the required absolute majority one week a go. Yulia Tymoshenko and others falsely claimed the Parliamentary electronic voting system malfunctioned or was subject to sabotage. An investigation by Ukraine’s Security forces (SBU) ruled out malfunction or sabotage stating that the system was in correct working order.

Having failed to secure support first time around for appointment of the President’s nominee Viktor Yushchenko, following threats and intimidation against dissident members of the coalition,resubmitted Yulia’s Tymoshenko’s nomination. The required show of hands was a way and means of ensuring that those disident members support Yulia’s appointment or face dismissal.

Under Ukraine’s constitution the Parliament may with the support of a majority of the parliament pass a resolution of no confidence in the prime-minister forcing the dismissal of the prime-minster and the government. One vote is all that is required.

Yulia is on tender hooks as Ukraine enters a period of political instability.

Political commentators anticipate fresh parliamentary elections will be held within 12 months with the opposition in a position to emulate the actions of the governing coalition by resigning their mandate and forcing fresh parliamentary elections at a time of their choosing.

Many believe that a move on Yulia Tymoshenko will occur soon after Ukraine’s President and Our Ukraine manage to secure agreement winding back the democratic reforms that saw Ukraine transforemd from a presidential dictatorship to a parliamentary democracy more in line with European standards.

It is unknown if Party of Regions, the largest political party in Ukraine, will support the president’s proposals to turn back the clock and reinstate presidential rule.

Unless Yulia can secure the support of bloc Lytvyn her tenure as prime minister will once again be cut short.

Tymoshenko PM by one

Yulia Tymoshenko appointed Prime-minister of Ukraine for a second time.

In what was a laborious, tedious and marginally victorious event Yulia Tymoshenko was declared elected with a majority of one.

226 out of 450 members of Ukraine’s parliament one by one raised their hand and voted for Tymoshenko.

The roll call and show of hands was required in order to ensure that members of her own coalition who are opposed to her appointment towed the party line. Proposals to hold a secrete ballot having been rejected by parliamentary coalition.

Yulia Tymoshenko failed to achieve the required absolute majority one week a go. Yulia Tymoshenko and others falsely claimed the Parliamentary electronic voting system malfunctioned or was subject to sabotage. An investigation by Ukraine’s Security forces (SBU) ruled out malfunction or sabotage stating that the system was in correct working order.

Having failed to secure support first time around for appointment of the President’s nominee Viktor Yushchenko, following threats and intimidation against dissident members of the coalition,resubmitted Yulia’s Tymoshenko’s nomination. The required show of hands was a way and means of ensuring that those disident members support Yulia’s appointment or face dismissal.

Under Ukraine’s constitution the Parliament may with the support of a majority of the parliament pass a resolution of no confidence in the prime-minister forcing the dismissal of the prime-minster and the government. One vote is all that is required.

Yulia is on tender hooks as Ukraine enters a period of political instability.

Political commentators anticipate fresh parliamentary elections will be held within 12 months with the opposition in a position to emulate the actions of the governing coalition by resigning their mandate and forcing fresh parliamentary elections at a time of their choosing.

Many believe that a move on Yulia Tymoshenko will occur soon after Ukraine’s President and Our Ukraine manage to secure agreement winding back the democratic reforms that saw Ukraine transforemd from a presidential dictatorship to a parliamentary democracy more in line with European standards.

It is unknown if Party of Regions, the largest political party in Ukraine, will support the president’s proposals to turn back the clock and reinstate presidential rule.

Unless Yulia can secure the support of bloc Lytvyn her tenure as prime minister will once again be cut short.

Ukraine’s Parliament convenes Autumn Session amidst Constitutional Crisis

Ukraine’s Parliament today (September 4) convened its Autumn session according to the requirements in Ukraine’s constitution (Article 83).

The session was attended by 269 members of parliament.

The Autumn Session of Parliament was held under controversy in the midst of a constitutional crisis and power struggle between the President and Ukraine’s democratically elected parliament

An agreement was struck in late May between the The President, the Prime Minster and the Speaker of the Parliament that early parliamentary election could be held subject to the determination of the president complying with Ukraine’s’ Constitution.

Under Ukraine’s Constitution (Article 90)The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if: ..,
(s3) the Parliament fails, within thirty days of a single regular session, to commence its plenary meetings.

In July members of the opposition resigned their parliamentary positions and canceled their respective party lists reducing the member of elected representatives in the parliament to below two-thirds of the total 450 parliamentary seats.

According to Ukraine’s constitution (Article 82) The Verkhovna Rada (Parliament) of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

Following the resignation of opposition members it is argued that the parliament is no longer competent and as such the holding of the plenary session on September 4 could not be convened.

The president’s earlier decrees seeking to dismiss the parliament has been subject to an appeal in Ukraine’s Constitutional Court including the current decree scheduling election for September 30

The basis of the appeals to the constitutional court is that the president has usurped power in that his decrees do not conform to the requirements of Article 90 of the constitution.

The session of parliament held to day holds two points of interest in terms of provisions of constitutional law which is open to augment and interpretation which can only be determined by the Ukraine’s Constitution Court which has been muted since the president interference in the operation and composition of the court.

First Question: Can the Parliament convene its parliamentary session given that it does not maintain the requisite number of elected representatives? The parliament could be skating on thin ice and the court could very well rule the session invalid accordingly.

Second Question: Does the president have the authority to dismiss the Parliament. If the September 4 session is considered invalid then the president under Article 90 can within 30 days from today (October 5) terminate the authority of the parliament but not before.

Prior to today the president had no grounds or authority in which he can dismiss the parliament. The government maintains the support and confidence of a majority of elected parliamentary representatives, there is no division and there is no vote of no-confidence which would normal be a pre-condition for a parliaments dismissal.

For the sake of 30 days the president has placed the legality of the September 30 election and undermined confidence in Ukraine’s constitutional rule of law having himself breached the provisions of the constitution.

Ukraine’s Constitutional Court

The current division questions of legality hinges on the the ability and willingness of Ukraine Constitutional Court to fulfill its duty which following the president’s intervene in the operation of the court has failed to rule on the appeals before it.

Back in April this year the Parliamentary Assembly of the Council of Europe passed a resolution in which it stated

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution. and has not allocated the required funding for these elections”.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected.

Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.“

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that

“Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat.” (item 67)
”
In emphasis the report (item 68) stated

“This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions”

Ukraine’s Parliament convenes Autumn Session amidst Constitutional Crisis

Ukraine’s Parliament today (September 4) convened its Autumn session according to the requirements in Ukraine’s constitution (Article 83).

The session was attended by 269 members of parliament.

The Autumn Session of Parliament was held under controversy in the midst of a constitutional crisis and power struggle between the President and Ukraine’s democratically elected parliament

An agreement was struck in late May between the The President, the Prime Minster and the Speaker of the Parliament that early parliamentary election could be held subject to the determination of the president complying with Ukraine’s’ Constitution.

Under Ukraine’s Constitution (Article 90)The President of Ukraine may terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if: ..,
(s3) the Parliament fails, within thirty days of a single regular session, to commence its plenary meetings.

In July members of the opposition resigned their parliamentary positions and canceled their respective party lists reducing the member of elected representatives in the parliament to below two-thirds of the total 450 parliamentary seats.

According to Ukraine’s constitution (Article 82) The Verkhovna Rada (Parliament) of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected.

Following the resignation of opposition members it is argued that the parliament is no longer competent and as such the holding of the plenary session on September 4 could not be convened.

The president’s earlier decrees seeking to dismiss the parliament has been subject to an appeal in Ukraine’s Constitutional Court including the current decree scheduling election for September 30

The basis of the appeals to the constitutional court is that the president has usurped power in that his decrees do not conform to the requirements of Article 90 of the constitution.

The session of parliament held to day holds two points of interest in terms of provisions of constitutional law which is open to augment and interpretation which can only be determined by the Ukraine’s Constitution Court which has been muted since the president interference in the operation and composition of the court.

First Question: Can the Parliament convene its parliamentary session given that it does not maintain the requisite number of elected representatives? The parliament could be skating on thin ice and the court could very well rule the session invalid accordingly.

Second Question: Does the president have the authority to dismiss the Parliament. If the September 4 session is considered invalid then the president under Article 90 can within 30 days from today (October 5) terminate the authority of the parliament but not before.

Prior to today the president had no grounds or authority in which he can dismiss the parliament. The government maintains the support and confidence of a majority of elected parliamentary representatives, there is no division and there is no vote of no-confidence which would normal be a pre-condition for a parliaments dismissal.

For the sake of 30 days the president has placed the legality of the September 30 election and undermined confidence in Ukraine’s constitutional rule of law having himself breached the provisions of the constitution.

Ukraine’s Constitutional Court

The current division questions of legality hinges on the the ability and willingness of Ukraine Constitutional Court to fulfill its duty which following the president’s intervene in the operation of the court has failed to rule on the appeals before it.

Back in April this year the Parliamentary Assembly of the Council of Europe passed a resolution in which it stated

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution. and has not allocated the required funding for these elections”.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected.

Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.“

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that

“Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat.” (item 67)
”
In emphasis the report (item 68) stated

“This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions”