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23.03.2010 | Halya Coynash

Unconstitutional, but just don’t do it again?

   

The amendments to Ukraine’s parliamentary regulations adopted and signed into law at record pace on 9-10 March continue to arouse concern.  The changes they brought in are breathtakingly far-reaching, with President Yanukovych now effectively controlling most branches of power. This is despite a seemingly evident clash with Article 83 of the Constitution and with a judgment handed down by the Constitutional Court [CCU] on 17 September 2008. 

The amendments and CCU judgment are discussed in more detail in The Dismantling of Ukraine’s Democracy, however briefly what is at issue is the question of how a coalition is formed. Article 83 of the Constitution envisages only a coalition of deputy factions.  The Law on Amendments to the Verkhovna Rada Regulations, adopted on 9 March and signed into law the very next day, adds a mere three words, but the difference is crucial.  The Regulations now state that a coalition is made up of deputy factions and National Deputies forming a majority of the National Deputies in the Verkhovna Rada.  With the system of proportional representation introduced in 2004, citizens vote for factions, not for individual Deputies.  The new law makes it possible for an entire faction in parliament to be against a particular coalition however if individuals within that faction can in some unidentified manner be persuaded to leave the party which they entered parliament as part of and join a coalition made up of their faction’s opponents, then it becomes immaterial that those factions would not otherwise have sufficient votes to form a coalition.  Just as immaterial from many Ukrainians’ point of view as all words about democratic choice since they have no impact on the factions’ candidate list nor on the political future of any deputy who thus goes against the faction they voted for.

As mentioned, this same issue was brought to the attention of the CCU in 2008 and the Court’s judgment was unequivocal: a coalition is formed by deputy factions.  This must have been known to the National Deputies who voted for a law changing parliament’s Regulations, and most definitely to the President, as Guarantor of the Constitution, when he ignored calls to veto the law.

In an article published on “Maidan”, lawyer Oleksandr Severyn discusses an extraordinary statement made on 17 March by the newly appointed Minister of Justice Oleksandr Lavrynovych.  Mr Lavrynovych is reported as having stated that “even if we assume hypothetically that the court finds the above-mentioned norm of the Regulations unconstitutional, the judgment of the Constitutional Court takes effect from the moment it is announced, not beforehand.  Thus, the CCU judgment will be taken into consideration in forming a new coalition”.

As Oleksandr Severyn rightly points out, while the chaos which could ensue if laws were made null and void with retrospective force cannot be disputed, we are dealing here with a law which is not only in breach of the Constitution, but flouts a CCU judgment from September 2008 which could not be clearer on the subject.  The Minister of Justice would seem remarkably relaxed about a situation whereby Ukraine’s legislators and Guarantor of the Constitution can knowingly act in breach of the Main Law of the land, but only be told that they mustn’t do it again. Judging by the radical changes to the balance of power and control over branches of power, they wouldn’t need to do it a second time.

It is worth noting that this statement from Mr Lavrynovych is hardly in keeping, either in substance or in spirit, with the reported message from Daniel Russell, Deputy Aide on Europe and Eurasia to the US Secretary of State.  The authoritative newspaper “Dzerkalo Tyzhnya” reports in its current issue that Mr Russell told a meeting of the Helsinki Commission in Congress last week about the situation in Ukraine. He apparently welcomed the fact “that the Party of the Regions had themselves initiated a submission to the Constitutional Court and had also promised to pass and implement any judgments from that body. However, if the Constitutional Court comes out against the new procedure, D. Russell said, Washington anticipates that the Party of the Regions will try to create a new coalition in accordance with the judgment of the Court, or will opt for early parliamentary elections”.

Given that Mr Lavrynovych is not only the newly-appointed Minister of Justice, but also a member of the parliamentary faction of the Party of the Regions, it would seem advisable for this new discrepancy regarding the coalition’s plans should CCU find the Regulations unconstitutional to be clarified as soon as possible. 

It might also be of interest to the honourable members of the US Congress and others feeling concern over the disputed amendments, to read one further prediction from Tetyana Sylina, the author of the article quoting Mr Russell.

“Before his meeting with his American colleague V. Yanukovych wants to receive from the CCU evidence of the legitimacy of the coalition created with the help of “bodies” and the government it has approved.

In addition, the Party of the Region are sick to the teeth of the Communists’ whims and would have no objection to “changing their speaking partner”. Recognition of the innovation in the procedure for forming a coalition as in keeping with the Constitution would in the first place make it easy for the Party of the Regions to exchange the communists for deputies from “Our Ukraine-People’s Self-Defence” and BYuT, and secondly patch up in the eyes of western partners the image of a party tarnished among other things by their collaboration with an offensive political force”.

It is a worrying sign of the demoralization of many Ukrainian voters that there has been so little active protest over amendments widely seen as unconstitutional, and little confidence that the Constitutional Court will rectify the situation, or that western countries will not turn a blind eye.  It is vital for Ukraine’s democratic future that citizens see their right to electoral choice firmly and unequivocally affirmed.

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