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18.07.2006 | V. P. Kolisnyk, F.V. Venislavsky, V.I. Kychun

Constitutional aspects regarding the formation of coalitions in the Ukrainian Parliament

   

V. P. Kolisnyk , Doctor of Law, Professor

F.V. Venislavsky, Candidate of Law, Associate Professor

V.I. Kychun , Candidate of Law, Associate Professor

1. The legal basis and procedures for forming a coalition, as well as those for terminating such coalitions of deputy factions in the Verkhovna Rada of Ukraine are set down in the Constitution of Ukraine (Article 83) and the Regulations of the Verkhovna Rada (Chapter 12). In accordance with Article 83 § 6 of the Constitution, a coalition of deputy factions is to be created “following the outcome of the elections and on the basis of agreement over political positions”.
Pursuant to Article 61 § 1 of the Regulations of the Verkhovna Rada “a coalition of deputy factions in the Verkhovna Rada (hereafter “coalition”) is a voluntary association of deputy factions which is formed in the Verkhovna Rada following the outcome of the elections and on the basis of agreement over political position.  Such a coalition is made up of a majority of State Deputies from the constitutional composition of the Verkhovna Rada. The coalition is formed by deputy factions, themselves created according to the rules and procedure established by these Regulations (Article 61 § 2 of the Regulations).  This means that the parties to the formation of the coalition of deputy factions are specifically the deputy factions, and not individual State Deputies (Article 83 § 6 of the Constitution of Ukraine).
How the decision is taken by a given deputy faction to join the coalition is not given normative specification.  At the same time, since a faction is created by a political party (or electoral bloc of political parties) which received deputy mandates as a result of the elections, this issue must be resolved in accordance with the Law of Ukraine “On political parties”.  Based on the principles of democracy and equal rights of the members of a political party enshrined in this Law, a decision of any given faction to join the coalition should be passed by a majority of the State Deputies belonging to the given faction.

The Regulations state that the coalition agreement shall record the agreed political positions which have formed the basis of the given coalition, with regard, in particular, to the principles of internal and external policy, as well as the political direction and principles for the activities of the coalition, and the rules and procedure for determining internal organizational issues pertaining to the working of the coalition and the rules and procedure for the said coalition’s termination. A list of the members of the deputy factions which have formed the coalition, with the personal signatures of their State Deputies, is added to the coalition agreement. The lists of members of the deputy factions are an integral part of the coalition agreement.

The text of the Agreement on the creation of the “Anti-crisis coalition in the Verkhovna Rada of Ukraine of the fifth parliamentary term between the factions of the Party of the Regions, the Socialist Party of Ukraine and the Communist Party of Ukraine shows that as well as State Deputies who are members of those factions, the given coalition agreement was signed by State Deputies who belong to the factions of the political party “Nasha Ukraina” [“Our Ukraine”] and the electoral bloc of Yulia Tymoshenko (BYuT).

The provisions of the Regulations of the Verkhovna Rada given above provide grounds for asserting that the signatures of State Deputies from those factions which have not taken the decision to join the “Anti-crisis coalition” should be declared invalid, and the procedure for the creation of this coalition should be recognized as contravening the normatively established rules and procedure.  Furthermore, the participation of a State Deputy in the activities of a coalition of deputy factions in the absence of a decision by his or her faction to join the coalition runs counter to the main idea set down in point 6 of Article 81 § 2 of the Constitution of Ukraine. The given point should be understood as meaning that a State Deputy must be a member of that political party (electoral bloc of political parties) as part of whose candidate list he or she was elected to office, and can similarly not independently withdraw his or her membership of a faction of a political party (electoral bloc of political parties).  Therefore, a State Deputy by placing his or her signature on the coalition.agreement where there has been no corresponding decision taken by the person’s faction, has effectively declared his or her withdrawal from that faction. There are thus actual grounds for the early termination of the authority of these State Deputies.

 

2. According to Article 65 § 2 of the Regulations a deputy faction has the right at any time to withdraw from the coalition having warned the leaders of the other deputy factions in the coalition of this in writing not less than ten days before the date of withdrawal.  During that period the deputy faction has the right at any time to revoke in written form its statement warning of its withdrawal. If the deputy faction has not revoked this statement, the Speaker shall, at the first plenary session after the expiry of the ten-day period, announce that the deputy faction has withdrawn from the coalition.

An analysis of the political and legal conditions for the creation of the “Coalition of democratic forces”, and the actual circumstances of its termination, as well as the process of the formation of the “Anti-crisis coalition” in the Verkhovna Rada lead one to conclude that there were serious violations of the above-mentioned requirements set down in the Regulations of the Verkhovna Rada of Ukraine. For example, the Socialist Party of Ukraine which on 22 June 2006, together with the factions of the political party “Nasha Ukraina” and the electoral block of Yulia Tymoshenko, had signed an Agreement on the creation of a Coalition of democratic forces, should have: 1) no later than ten days prior to its withdrawal notified the leaders of the other factions which had signed the Agreement of its plans; 2) after the expiry of this period of time asked the Speaker to announce the withdrawal of its faction from this coalition at the next  plenary session.  Only after this procedure had been adhered to, did the Socialist Party of Ukraine have the right to take the decision to form another coalition. This imperative requirement of the Regulations of the Verkhovna Rada of Ukraine was violated by the faction of the Socialist Party of Ukraine  since the latter’s representatives effectively announced at the same time that they were withdrawing from the “Coalition of democratic forces” and were joining the “Anti-crisis coalition”. These violations of specific requirements of the Regulations of the Verkhovna Rada thus provide every justification for concluding that the rules and procedure for the creation of the “Anti-crisis coalition” were infringed, and that the coalition is therefore illegitimate, and as a result, all of its actions and decisions are also illegitimate, first and foremost the decision to make a submission to the President of Ukraine to put forward V.F. Yanukovych as candidate for the position of Prime Minister of Ukraine.

 

 3.  With regard to the statements of certain politicians (in particular, O.O. Moroz and A.I. Martynyuk) that the government has not resigned, we would state the following.  On the basis of an interpretation of the Constitution of Ukraine, of the practice of the functioning of governments in other countries, as well as on sheer common sense, there can only be two possible states of a government: either it carries out its functions permanently, or it exercises its powers on a temporary basis, while having resigned until the new government is formed. There is no other state for a government in world practice, and there can indeed be no other. On the basis of this, the government, having rendered its resignation to the newly-elected Verkhovna Rada, is continuing to temporarily exercise its powers while having resigned.  Such a temporary state may not exceed sixty days. Otherwise, the sense of the constitutional norm, enshrined in point 2 of Article 90 § 2 of the Constitution of Ukraine is lost, since another interpretation of this norm would enable the newly-elected Verkhovna Rada  to not form a government over a lengthy period of time while not bearing any responsibility for such inaction.  And a government could temporarily exercise its duties over a period of 6 months, a year, or even the entire term of office of the parliament.

Furthermore, even if one assumes that the tendering of the resignation of the government to the newly-elected Verkhovna Rada of Ukraine does not constitute the resignation of the government, then in this case, one should bear in mind that back on 10 January 2006 the government headed by Yury Yekhanurov was dismissed by the previous formation of the Verkhovna Rada (although the constitutionality of such a decision by Parliament raises serious doubts, formally the decision is still valid).

Therefore in the fifth parliamentary term of the Verkhovna Rada of Ukraine the duty to form a government arose from the moment it came into office, that is, on the day of the opening of the first parliamentary session, and the swearing in of State Deputies.  And, consequently, the President’s right to dissolve parliament will take effect 60 days after the opening of the first session, i.e. on 25 July 2006.

 

P.S.  For a constitutional-legal analysis of the situation which has emerged, another aspect is also important. The point of the “political reform” was primarily to increase the responsibility of Parliament and of the Government for the state of affairs in the country. At the same time, in view of the fact that both coalitions (the “Coalition of democratic forces” and the “Anti-crisis coalition”) were either created extremely lethargically (“damp logs burning”) or with numerous violations, one can state that parliamentarians graphically demonstrated their total lack of responsibility, vision, their excessive ambitions, inconsistency, unscrupulousness and impotence. Aiming in the first instance to satisfy their own ambitions, they forgot about the fate of the country.  The experience of the work of Ukrainian parliamentarians over the last few months makes it possible to predict that the creation of artificial coalitions may continue, but it will hardly contribute towards overcoming the systemic crisis which has engulfed different spheres of Ukrainian society. Corruption, the notorious bribes, the misuse of VAT, the buying and selling of positions, the faking of tenders and other negative phenomena have taken on an unprecedented scale over the last ten – twelve years under the rule of those politicians who are now, with clever expressions teaching others just how it’s necessary to “run” the country, that supposedly they should live in another way completely, or boasting of their “stability”. These troubles are still continuing despite the numerous promises (in the opinion of some experts, positions, for example, are still continuing to be sold and bought even in some law enforcement agencies, although those in charge refuse, sometimes quite categorically, to believe this.  Promises were heard during the election campaigns of 2004 and 2006, as well as by the first “coalition partners” and the second, to overcome these negative features. However it is not difficult to predict that if, say, after a certain amount of time (half a year, a year) the activities of the government, created by a coalition, are seen as being inadequate, nobody will be held to answer.  Especially if the coalition of deputy factions proves to be excessively wide., because then, simulating some kind of recreating of the coalition, will again stay in power and will form a “new” government.  There you have all the responsibility. And there will be no formal grounds for entrusting the formation of the government to a new coalition.

Thus, the “political reform” was merely a kind of cover which made it possible for crafty politicians of the ilk of the leader of the socialists to remain in power and to satisfy their personal ambitions.  It was specifically this inadequate “political reform” that enabled the leader of a political force which gained only a little more than six percent of the votes and took only fourth place out of the five parties or blocs which crossed the three-percent threshold in the parliamentary elections, by means of a subtle political ruse and the disregard for basic democratic principles of political activities, to become the Speaker of Parliament. Incidentally, such behaviour did not arouse either condemnation, or even clearly expressed indignation from the overwhelming majority of politicians, this also testifies to the irresponsible attitude of the contemporary Ukrainian political stratum to the pressing problems of development of both state and society.

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