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09.05.2007 | Vsevolod Rechytsky

Legal commentary on the Second Presidential Decree dissolving parliament from 26 April 2007

   

As we know, on 2 April 2007 President Yushchenko issued Decree No. 264 “On the early termination of the powers of the Verkhovna Rada of Ukraine” which pointed to and at the same time significantly exacerbated the intense political crisis in Ukraine. It was this which prompted my first legal analysis.

Not so very much time has passed, and the President has made a second attempt to resolve the political confrontation in a legal manner. On 26 April he issued a second Decree “On the early termination of the powers of the Verkhovna Rada of Ukraine and the setting of new elections”.

This Decree No. 355 (hereafter the Decree) states: “the refusal by the Cabinet of Ministers to provide the appropriate funding, and effective inaction of the Central Election Commission make it impossible to hold the early elections to the Verkhovna Rada on 27 May 2007”.  Therefore, “in order to create the proper conditions for all participants in the electoral process, and bearing in mind the fact that pursuant to Article 77 § 2 of the Constitution the date of the early elections is directly linked with the date on which the decision regarding the early termination of the powers of the Verkhovna Rada, the President’s Decree No. 264 of 2 April 2007 ... must be considered to have lost legal force.”

It has not, furthermore, remained unnoticed that the new Decree is not merely a juridical copy of the first, legally speaking entirely inept document dissolving the Verkhovna Rada. The latest Decree not only sets a new date for the early elections, but also significantly changes the entire chain of juridical argument behind the President’s actions.

Unlike the first attempt, the second Decree on dissolving parliament contains important references to Article 90 § 2.1 and Article 83 § 6 of the Constitution*. Both references are not only important, but also necessary since Article 106 § 1.8, which gives a list of Presidential powers, categorically and unqualifiedly affirms that the President of Ukraine shall “terminate the authority of the Verkhovna Rada of Ukraine in cases stipulated by this Constitution:  (my italics – V.R.). In the juridical sense this means that the President may dissolve the Verkhovna Rada solely on the grounds of three groups of circumstances, listed in separate points of Article 90 § 2 of the Main Law. He is prohibited from behaving otherwise also by Article 19 of the Constitution.

It is precisely Articles 19 and 106 which prevent the President from dissolving the Verkhovna Rada directly on the basis of Article 102 § 2, this being the dramatic conclusion which many supporters of the President tried to argue in the national media and on the Internet. The most notable here were the analytical discussions and interviews with M. Riabchuk, B. Futey, O. Merezhko, N. Petrova, O. Severyn and F. Venislavsky.

Instead, in the President’s new attempt, the logic behind the juridical grounds is considerably more cogent. For example, the second Decree maintains that “on 11 July, at a plenary session of the Verkhovna Rada the formation was announced of a coalition of deputy factions which included National Deputies who were not members of the factions forming the coalition. In March 2007 this practice took on a mass nature. Due to this the preconditions arose for the exercising by the President of Ukraine of his right to terminate the powers of the Verkhovna Rada early on the basis of Article 90 § 2.1 of the Constitution given that the coalition of deputy factions in the Verkhovna Rada had not been formed in accordance with Article 83 of the Ukrainian Constitution”.

Indeed, according to Article 90 § 2.1, “The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada if: 1) the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions in compliance with Article 83 of this Constitution within one month;

This means that in order to comply with Article 90 § 2.1, the prior adherence by all relevant parties to the requirements of paragraphs six and seven of Article 83 is needed. Given that the norms of the Constitution often function in whole groups together, this type of juridical interrelatedness should be regarded as natural.

If we analyze the general content of Article 83 of the Constitution, it is not difficult to conclude that its norms create a constitutional institution. In the legal sense this means that individual paragraphs of the article act as independent normative guides which, although they do not have autonomous sanctions, are equipped with their own scope and conditions. Moving away from legal language, this means that the main material and procedural points related to the formation of a coalition of deputy factions in the Ukrainian parliament is fully outlined in paragraphs six and seven of Article 83.

For example, Article 83.§ 6 states that “A coalition of deputy factions comprising a majority of people’s deputies of Ukraine in the constitutional membership of the Verkhovna Rada of Ukraine shall be formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms”. Arithmetically speaking, this means that the critical number for the creation of a properly functioning faction of deputy factions is 226. Furthermore, this figure is achieved via group membership.

Article 83 § 7, in turn, stipulates that “A coalition of deputy factions in the Verkhovna Rada of Ukraine shall be formed within one month from the date of opening of the first meeting of the Verkhovna Rada of Ukraine held upon regular or extraordinary elections to the Verkhovna Rada of Ukraine or within one month after the date of termination of the activity of a coalition of deputy factions in the Verkhovna Rada of Ukraine.

From the legal point of view, it is these norms which are crucial for providing evidence and general juridical justification for the second Presidential Decree.  Although Article 83 § 9 says that “The basis for the formation, organisation, operation, and termination of activities of coalition of deputy factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and Rules of Procedure of the Verkhovna Rada of Ukraine”, in fact the Constitutional Court, in judging whether the President’s Decree was constitutional will not be guided by the Rules of Procedure, but solely by the provisions of the Ukrainian Main Law.

It thus follows from the logic of the Constitution that a coalition of deputy factions must be finally formed within a month, and its parties must exclusively be deputy factions. Furthermore, the overall number of Deputies in the factions which have decided to join the coalition cannot be less than 226. Effectively this is all that Ukraine’s Main Law stipulates. All else is the juridical attributes of the Rules of Procedure, that is, a statement of the will of a majority of National Deputies which does not require (since the Rules of Procedure are not a law), the official consent of the President.

Maybe it was for this reason that the Ukrainian parliament chose a free (and then unconstitutional) path for forming a coalition on the basis not only of group, but also individual membership, while extending the period of its formation indefinitely. In other words, the Verkhovna Rada, having formed an initial majority within a month, deliberately forgot after this to close the coalition doors. This step, as we know, led to permanent additions to the coalition from further – individual and group – intakes.

At first glance such practice seems reasonably innocent however its juridical subtext holds a potential risk for the political stability of the country. If one considers that the coalition is all the time functioning and permanently open, then the government which it forms is permanently open for dismissals and reappointments. Let us assume that during a particular period of time this permanently functioning and open coalition is made up of 226-227 Deputies.  The government can then fall at any moment if even the smallest faction leaves the coalition.

Furthermore, if the doors to the coalition are permanently open, then is it possible to consider it formed in the juridical sense at all?  That is, is it formed in the sense envisaged by paragraphs six and seven of Article 83 of the Constitution?  Any increase in the coalition outside the month time frame stipulated by the Constitution for its creation shows that it is in a state of constant turbulence. After all, if one can freely join the coalition at any moment, then one can just as freely withdraw from it. The latter means that the coalition can collapse or be made up independently of the time frame set by the Main Law for its organization formation.

Although the Constitution does not say anything on this subject it would seem fitting to assume that its creators’ intentions were by no means so thoughtless.  Whatever politicians may say on the capital’s squares, a coalition which is permanently functioning and open for joining and leaving is reminiscent of a Verkhovna Rada permanently open for re-election. It is therefore logical to assume the opposite: according to the logic of the Main Law, the people vote for parliament once every five years and parliament once every five years creates, via a coalition, a government.

What is more, if the coalition is permanent and individuals can join it, they can also individually leave it. And this automatically leads to the fate of the government depending not only on the smallest coalition faction, but on any two or three National Deputies. And these can be Deputies from the makeup of the coalition, or from the opposition, i.e. from outside. Is this not a classic scenario for political blackmail? The difference between renegade Deputies in the given case will lie only in the fact that some are the participants, and others the objects of desperate political deals. If the coalition consists of 226 National Deputies, and any can join or leave whenever they please, this will mean the renewal of the Polish liberum veto in a Ukrainian variant. In today’s reality, such a set up could lead to corrupt scenarios the likes of which we could never have imagined..

While the Constitution does not contain a direct prohibition on such Deputy coming and going with respect to the coalition, nor does it actually permit such moves outside the month’s time frame. Such permission is not envisaged ether for individual parliamentarians, or for deputy factions. As we know, on the basis of Article 19 of the Constitution, bodies of State power and their officials do not have substantial, that is, strategic freedom. The Main Law deliberately avoids giving real discretionary powers to public officials and parliamentarians.

At least a doctrinal analysis of the provisions of the Ukrainian Constitution suggests that its rationale is such. On the issue of the formation of a coalition, this logic is seen in the coalition of deputy factions being created under normal circumstances only once and exclusively within a month, after which the coalition’s doors remain closed for the entire term in office of the newly-elected Verkhovna Rada. The ongoing readjustment of the coalition’s ranks can take place only where the number of National Deputies has become less than 226 for natural reasons. For example, a legitimate reduction in the size of the coalition could occur not through the permitted withdrawal from its ranks of factions or individuals, but only for the reasons foreseen in Articles 81, 87 and 115 of the Constitution.

Such circumstances can arise as the result of the resignation of a National Deputy; the coming into legal force of a conviction against a specific Deputy; a Deputy’s being declared incapable of looking after him/herself, or missing; the suspension of the Deputy’s Ukrainian citizenship or his/her departure from Ukraine for permanent residence abroad; a breach in the incompatibility requirements of a Deputy’s mandate with other activities; withdrawal from his/her faction, as well as due to his or her death. In addition, a coalition must be re-formed as a result of the dismissal (Article 87 § 1 of the Constitution) or resignation (Article 115 § 2 of the Constitution) of the Cabinet of Ministers.

It should also be noted that under the Constitution, a coalition of deputy factions is created by the Verkhovna Rada only as a means of forming a government – the Cabinet of Ministers of Ukraine. The Main Law does not speak of any other functions or possible uses for a coalition. Of course critics of such a point of view can refer to the Rules of Procedure which give considerably more attention to the coalition, as though in this way broadening its range of possible applications. However we do not in fact know whether the Rules of Procedure in this aspect are constitutional. Although the Rules of Procedure of the Verkhovna Rada of Ukraine are not a law, on the basis of Article 150 § 1.1 of the Main Law they can also be examined as to whether they are constitutional.

Some may also point to the fact that according to Article 83 § 8 of the Constitution “A coalition of deputy factions in the Verkhovna Rada of Ukraine shall… present candidates for the Cabinet of Ministers of Ukraine”. This means, they suggest, that isolated changes of ministers in the government during the entire term of office of the Verkhovna Rada take place through the mediation of the parliamentary coalition.

However, prior to an interpretation of this point by the Constitutional Court, one can insist that isolated changes of ministers in the Cabinet of Ministers take place not on the basis of Article 83, but in accordance with Article 114 § 4 of the Constitution. The latter states that “The candidate for office of Prime Minister of Ukraine is submitted by the President of Ukraine on the suggestion of the coalition of deputy factions”, while “other members of the Cabinet of Ministers are appointed by the Verkhovna Rada upon the submission of the Prime Minister.”

There are thus grounds for considering that under the Constitution, a coalition of deputy factions submits proposals regarding the replacement of posts of “ordinary” ministers to the Prime Minister, and with regard to the post of Prime Minister – to the President of Ukraine. However even in this case there are no convincing grounds for asserting that proposals regarding individual ministers can be submitted by the coalition as well as beyond the “sixty days after the resignation of the Cabinet of Ministers of Ukraine” (Article 90 § 2.2 of the Constitution). This can suggest that outside the time frame given by the Main Law for the formation of the government, a coalition does not, in a constitutional sense, exist at all. If this be the case, then any changes in its composition beyond the time limit for its formation must be recognized as unconstitutional.

The thesis regarding a permanently functioning coalition seems extremely dubious from the point of view of Article 80 § 2 of the Main Law. If “National Deputies of Ukraine are not legally liable for the results of voting … in Parliament and in its bodies”, then what kind of coalition unity, and therefore, coalition at all, is it possible to consider?

The possibility cannot be excluded that for specially this reason the Constitution of Ukraine does not require the early resignation of the Prime Minister or Cabinet of Ministers where there has been a natural reduction (on the basis of Article 81 of the Constitution) in the number of deputies who formed a coalition below the critical level. In fact in the majority of cases a serious crisis with a parliamentary majority leads to the dismissal of the government following a vote of no confidence. However, although Article 83 § 7 of the Constitution requires that a coalition be formed not after the resignation of the government, but “within one month after the date of termination of the activity of a coalition of deputy factions in the Verkhovna Rada of Ukraine”, in fact we don’t actually know whether this norm refers to termination of the activity of a permanently functioning coalition, or only to the crisis over the parliamentary majority which has arisen due to a parliamentary vote of no confidence in the Cabinet of Ministers.

One way or another, the above suggests that the second Presidential Decree creates a real intrigue for the professional activity of the Constitutional Court. In itself the content of the Decree does not predetermine a court judgment in favour of President Yushchenko, nor in favour of his opponents. However it makes it possible to build a constitutional analysis of the President’s initiative on serious arguments pro and contra and this markedly distinguishes the present juridical position from the political situation with the first attempt by President Yushchenko to dissolve the Verkhovna Rada.

 

 

*   Most of the Articles cited above can be found below.  Only those relevant paragraphs are, in most cases, given.

Article 19

The legal order in Ukraine is based on the principles according to which no one shall be forced to do what is not envisaged by legislation.

Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.

Article 81

The powers of the people’s deputies of Ukraine shall terminate with the termination of the powers of the Verkhovna Rada of Ukraine.

The powers of a people’s deputy of Ukraine shall be subject to early termination in the event of:

1) resignation by virtue of a personal statement;

2) guilty verdict against them entering into legal force;

3) court declaring them legally incapable or missing;

4) termination of his citizenship or his departure from Ukraine for permanent residence abroad;

5) failure of the deputy to remedy the circumstances causing a breach in the incompatibility requirements of his mandate with other activities within twenty days after the commencement of such circumstances;

6) failure of the deputy elected as a member of a political party (or an electoral block of parties) to join a deputy faction of such political party (or an electoral block of parties) or the termination of the membership of such deputy in such faction;

7) his/her death.  …

Article 83

... A coalition of deputy factions comprising a majority of people’s deputies of Ukraine in the constitutional membership of the Verkhovna Rada of Ukraine shall be formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms.

A coalition of deputy factions in the Verkhovna Rada of Ukraine shall be formed within one month from the date of opening of the first meeting of the Verkhovna Rada of Ukraine held upon regular or extraordinary elections to the Verkhovna Rada of Ukraine or within one month after the date of termination of the activity of a coalition of deputy factions in the Verkhovna Rada of Ukraine.

A coalition of deputy factions in the Verkhovna Rada of Ukraine shall, in accordance with this Constitution, present to the President of Ukraine for his approval a candidate for the position of the Prime Minister of Ukraine as well as in accordance with this Constitution shall present candidates for the Cabinet of Ministers of Ukraine. 

The basis for the formation, organisation, operation, and termination of activities of coalition of deputy factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and Rules of Procedure of the Verkhovna Rada of Ukraine.

The deputy faction of the Verkhovna Rada of Ukraine, comprising the majority of the constitutional membership of the Verkhovna Rada of Ukraine, shall have the rights of a coalition of deputy factions in the Verkhovna Rada of Ukraine envisaged by this Constitution.

Article 90

…  The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada in the following cases:

the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions in compliance with Article 83 of this Constitution within one month;

no new Cabinet of Ministers of Ukraine has been formed within sixty days after the resignation of the Cabinet of Ministers of Ukraine ;

plenary sessions fail to commence within thirty days of a single regular session.

A decision on an early termination of the powers of the Verkhovna Rada of Ukraine shall be taken by the President of Ukraine upon consultations with the Chairman of the Verkhovna Rada of Ukraine, vice-chairmen, and leaders of deputy factions in the Verkhovna Rada of Ukraine.

The powers of the Verkhovna Rada of Ukraine elected at extraordinary elections held after the early termination of powers of the Verkhovna Rada of Ukraine of the previous convocation by the President of Ukraine shall not be terminated within one year from the date of its election.

The powers of the Verkhovna Rada of Ukraine may not be subject to an early termination at the initiative of the President of Ukraine within the last six months of the term of powers of the Verkhovna Rada of Ukraine or the President of Ukraine.

Article 106

The President of Ukraine shall:

ensure the independence, national security, and legal succession of the State;  …

designate extraordinary elections to the Verkhovna Rada of Ukraine within the period determined by this Constitution;

terminate the authority of the Verkhovna Rada of Ukraine in cases stipulated by this Constitution;

submit, on the basis of a proposal made by the coalition of deputy factions in the Verkhovna Rada of Ukraine, formed in compliance with Article 83 of the Constitution of Ukraine, the proposal regarding the appointment by the Verkhovna Rada of Ukraine of the Prime Minister of Ukraine within fifteen days after a receipt of such proposal;  …

revoke acts of the Cabinet of Ministers of Ukraine on the ground of their non-compliance with this Constitution and simultaneously appeal to the Constitutional Court of Ukraine for the verification of the constitutionality of such acts;

…  appoint and remove from the office one-third of  the membership of the Constitutional Court of Ukraine;

…  exercise other powers determined by the Constitution of Ukraine.

The President of Ukraine shall not delegate his powers to other persons or bodies.

The President of Ukraine shall issue decrees and directives mandatory for the execution on the territory of Ukraine on the basis and in pursuance of the Constitution and laws of Ukraine.

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