Legal Commentary on the New Procedure for the Formation of a Parliamentary Coalition in Ukraine
From the Editorial Board: In the Ukrainian media of late there has been something of an increase in the tone of political and legal commentary over the Judgment of the Constitutional Court from 8 April 2010 regarding the possibility of individual National Deputies taking direct part in the formation of a coalition of deputy factions in the Verkhovna Rada. Since this Judgment is complex, it is not surprising that it has not been viewed by all in the human rights community and Ukrainian civic society in the same way. It is for this reason that we are so bold as to present the legal commentary of V. Rechytsky on this Judgment
This commentary is in the form of “abstract” answers to two legally important questions:
- How the provisions of the Constitution and Parliamentary Regulations relate to one another in Ukraine and what follows from this in the political sense;
- Whether it is constitutionally justified in Ukraine for individual National Deputies who are not in the deputy factions which formed the given coalition to be in the parliamentary coalition.
With regard to the first question, the answer to it cannot be unequivocal since the general procedural rules and organizational forms of institutions of legislative power in the world are extremely varied. It is even customary to assume that there are no established models. One can therefore only speak of some specific, most important aspects.
The main thing here is that firstly, procedural norms for parliamentary work exist in virtually all parliaments and secondly, strict adherence to these norms is mandatory. One of the common definitions of democracy is that it provides unpredictable results on condition that entirely predictable procedures are observed.
In most constitutional democracies the main provisions relating to issues of parliamentary procedure are directly contained in the constitution. Furthermore regulations cannot change or modify procedural principles established by an act of higher juridical force.
Against this background one observes that paragraph nine of Article 83 of the Constitution which is blanket in its content, that is, it envisages reference to another separate norm, does not just entrust the Regulations not with the development or specification of the relevant constitutional norms. It states 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 Regulations of the Verkhovna Rada of Ukraine”.
It is clear that the given constitutional norm makes it possible for the legislators to stipulate via the Verkhovna Rada Regulations something considerably more important than merely the straight repetition of the Constitution in other words. Such an approach can be considered a specific feature of the normative regulation in the Ukrainian constitutional model.
With regard to practice in other countries of using something like the Regulations, this practice is more or less the same in Spain, Germany, Japan, Russia and the USA. In other developed countries there may not be regulations as a separate document, but then the rules for parliamentary procedure act as established legal custom or as separate written rules, established by parliament at different times and in different circumstances (Great Britain).
Thus the question of compliance (adequacy) of parliamentary regulations to the Constitution in various countries is resolved in different ways.
There is especially scrupulous constitutional control over the content of the regulations in France where even draft regulations of parliamentary chambers (as well as amendments and additions to them) must be sent to the Constitutional Council to establish (confirm) that they comply with the main law of the country. In other countries (Germany, Austria, Gabon, Kenya and Malta) the question of compliance of the parliamentary regulations to the Constitution is also determined by a body of constitutional control such as a Constitutional or Supreme Court.
We can thus state that the regulations are an important normative act which in some places is checked for their compliance with the Constitution according to special procedure.
When however we speak about the situation with the relationship between Ukraine’s parliamentary Regulations and the Constitution, the situation is additionally complicated by certain political circumstances. For example, the marvellously swift by Ukrainian standards creation of M. Azarov’s present government can be considered a violation of the Constitution, but also a return to commonsense. After all in 2004 Ukrainian constitutional legislation significantly diverged from organic normative requirements through the legally and procedurally unacceptable vote for constitutional amendments in a package with an ordinary law. The constitutional changes of 2004 were carried out with flagrant and open violation of the logic behind constitutional creation with this subsequently leading to systemic problems in the normative body of the Main Law. This is mainly connected with the fact that since 8 December 2004 the text of Ukraine’s Constitution has contained two mutually exclusive legal tendencies. One of them (confirmed by the Judgment of the Constitutional Court from 8 April 2010) is the absolutization of free mandate of a National Deputy, the second – the clear desire to subjugate parliamentary existence to strict corporate (party, factional, and in the future, coalitional) discipline.
In other words, under the present circumstances the Constitution contains arguments in favour at once of two competing legal positions. From this there automatically follows a task for the Constitutional Court – to minimize the adverse consequences of such normative conflict. In order to carry out its mission, the Constitutional Court must first determine which of the two legal trends is legally organic and less risky.
It is customary to consider that the law must stand above human passions and emotions, however solely on condition that they are indeed embodiments of human reason. In the life however of a young democracy the laws not infrequently contain the most various forms of political searching. Articles 5, 38 § 1, 79 § 1 and 80 § 2 of the Constitution are subjugated to the logic of a politically weakly structured Verkhovna Rada. This approach guarantees National Deputies free mandate – ultimately broad freedom of choice of parliamentary behaviour. Yet if the mandate is truly free, then no factional or coalitional discipline can be considered absolute.
Under the given circumstances a parliamentary coalition based on collective and individual membership should (ideally) exist only up till and for the creation of a national government. As soon as the Cabinet of Ministers has been established, any prolongation of the coalition becomes redundant. Otherwise the position of several deputies (free to join and leave the coalition) could directly impact on the fact of the government and the political stability in the country.
Furthermore individual and collective (factional) membership in the coalition really cannot in any legal way prompt deputies to vote for or against any specific issue. It makes sense only as a democratic means of putting forward candidates as Prime Minister and members of the Cabinet of Ministers. Even the provisions are of fundamental importance since both established political ideology and moderate party or factional discipline in Ukraine are at the stage of painful initial formation. In Ukraine’s real life to a large extent they are artificial advantage-linked creations, a figment of the imagination.
It is for this reason that the effective return (through recognition of individual membership in the coalition) of Ukraine to a model for forming a Cabinet of Ministers based on a simple majority of National Deputies can be considered the return of Ukrainian constitutionalism to commonsense. If the existing political system in Ukraine is organically simple, then forced introduction of complex juridical rules for ensuring its functioning are not only premature, but harmful.
All of this de facto justifies the Judgment of the Constitutional Court from 8 April 2010 which found lawful the existence of a coalition based on the merging in it of faction and individual membership. However with such recognition, the Constitutional Court has heightened the risks for the country’s political stability in the future. After all individual membership in the coalition will help both to accelerate the creation of a coalition, and the fall of the Cabinet of Ministers.
Essentially permission for the formation of a coalition with the help of individual deputies means permission for the support of the Prime Minister and members of the government on the basis of personal liking and trust. Yet National Deputies had this possibility from the outset. One can in general say that the present situation demonstrates not so much a battle of “politicians” and “lawyers” in judges’ chairs, but the overly ambiguous state of the Ukrainian constitutional system.
Since Ukraine is still muddled in its choice of constitutional axioms, the formulation of legal theorems (the main task of Constitutional Court judges) sometimes leads in Ukraine to paradoxical results.
As mentioned above, overt corporativism and hypertrophied party discipline compete in Ukraine’s Constitution with a pronouncedly free deputy mandate since the paradigms of the already muffled socialism and still under-developed capitalism remain ideologically competing paradigms in Ukraine.
The sharply accentuated freedom of the National Deputy in Article 80 § 2 of the Constitution, the ban on imperative mandate are the buds of political liberalism of a western model and type. Clearly excessive, given the state of Ukraine’s political system, demands for party and factional discipline (Item 6 of paragraph two, paragraph six of Article 81 are a product of Soviet democratic centralism.
A typical manifestation and result of Ukraine’s “constitutional dualism” must be deemed the passing of the Law of Ukraine “On the Regulations of the Verkhovna Rada” from 9 March 2010. After all, the very name “Regulations of the Verkhovna Rada” is an indicator not so much of legal force as of the functional purpose of a normative act. That is, in itself the existence of a text with this name does not formally satisfy the requirements of Item 21 of Article 92 § 1 of the Constitution which states: “The following are determined exclusively by the laws of Ukraine <...> the organisation and operational procedure of the Verkhovna Rada of Ukraine, the status of National Deputies of Ukraine”.
The Constitutional Court previously found the “Regulations” (as a Resolution of the Verkhovna Rada) unconstitutional, since according to the Constitution they needed to be a fully-fledged law. Did the Regulations become a fully-fledged law after 9 March 2010? One feels that the answer is negative since after all any law of Ukraine which affirms other normative act does not turn the latter into a part of the law. For example, the Constitution of the Autonomous Republic of the Crimea is specifically a constitution, and not a law of Ukraine, just as the international agreements ratified by the Verkhovna Rada are not laws of Ukraine. Such acts have a specific level of stability and juridical force. For example, the Constitution of the Autonomous Republic of the Crimea does not require a majority of the constitutional makeup of the Verkhovna Rada, while international agreements ratified by law remain legally higher than Ukrainian laws. Moreover such sources of law are not subject to the classical rules of the legislative process, and amendments and additions to them follow separate procedure.
All of that yet again proves that at the level of current legislation the inconveniences of the Constitution can only be partly eliminated. If Item 15 of Article 85 of the Constitution, changed in 2004, adds to the powers of the Verkhovna Rada the “passing of Regulations of the Verkhovna Rada of Ukraine”, while Item 21 of Article 92 § 1 states that the Regulations should be a law, then the simple “approval of the “Regulations” by law can only formally resolve the clash.
In answering the second question which we articulated at the beginning of this commentary, we should begin with an analysis of specific norms of Article 81 of the Constitution. For example, Item 6 of Article 81 states that “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” leads to the early termination of his or her powers. I am convinced that this conflicts in its idea with Articles 5, 38, 69, 79 and 80 of the Constitution which in no way envisage “disciplining mediation” of National Deputies via parties, blocs, factions or coalitions as a whole in the relations of citizens with those they have elected;
In the spirit and letter of the Constitution, the mandate received at the parliamentary elections by a National Deputy is not subject to political checks after the elections have taken place. Political choice and control of candidates for National Deputy according to the dominant logic of the constitutional norms should be carried out only at the stage of formation (inclusion in) candidate lists. Subsequently, that is for the entire parliamentary term the fate of the National Deputies does not depend on their party.
Unfortunately this mode of relations between National Deputies, parties and the people of Ukraine was deformed by the amendments made to Articles 81 and 83 of the Constitution. It was on the basis of these amendments that Ukrainian parties at parliamentary level obtained the right to terminate the powers of a National Deputy early for activities which free mandate effectively and legally guaranteed him or her – Article 80 § 2 of the Constitution.
It must be acknowledged that heightened party discipline of deputies within the walls of parliament is one of the trends for the development of contemporary constitutional legislation of Western European countries. For example, the British model for such relations does not allow for the free expression of will of rank and file (in the party sense) deputies on basic political issues. On the contrary, considerably more freedom of political manoeuvre is given to US congressmen. It is customary to consider that the American model of representation of the people allows parliamentarians to be fairly free in their political preferences.
However even under conditions of heightened party discipline, parliamentary deputies in western countries are not subject to mandatory loss of their mandate for dissident voting, political declarations or acts. If a deputy cannot be recalled by the people (the prohibition of imperative mandate is a norm and principle in the West), then any party has even less grounds for this.
Punishment in most such cases is the refusal to give political support to dissident deputies at the next elections. Therefore the norm, enshrined in Item 6 of Article 81 § 2 of the Constitution on the possibility of terminating deputy powers at the decision of the party (bloc) is unwarrantedly strict and is little in keeping with the overall spirit of the Constitution. On the one hand, constitutional norms make National Deputies individually free, on the other they impose strict corporate loyalty.
All of this has negative consequences not only because organic parliamentary life should involve real discourse, i.e. be based on the art of achieving difficult compromises. What is even more important is the fact the strict factional discipline in Ukraine is unwarranted due to the merely formally structure and immature state of its political system.
As we know, parliamentary republics as a prerequisite for their existence envisage a high level of political culture of parties. Ukrainian political parties do not share such culture. Their very number demonstrates the excessive vanity and petty intransigence of the Ukrainian political elite. In Ukraine basic versions of political ideology (conservatism, liberalism, moderate nationalism) remain almost unformed. Since these failings may only be overcome through long-term evolution, a parliamentary republic in Ukraine remains problematical also in the practical sense.
One cannot ignore the fact that in the historical perspective Ukrainian parliamentarianism was not successful. The actions of the Central Council, the “collegiate dictatorship” of the Directorate and later decisions of the Congress of the Working People excelled in abuse of political rhetoric, eclecticism, and overt populism. Although the Central Council observed democratic procedure and its leader M. Hrushevsky was not afflicted by authoritarianism, in the general analysis Ukrainian parliamentarianism proved to have catastrophic consequences. Whether good or bad, since the time of Khmelnytsky up till Hetman Skoropadsky, the only effective form of democracy was that based on strong centralised power (“sole leadership”).
Furthermore, the ethno-cultural divide in Ukraine into East and West constantly creates a pendulum effect at parliamentary and government levels. Moderate fluctuations of priorities in parliament are normal, yet in Ukraine they threaten to become fluctuation at the level of state strategies.
Decision-taking in presidential republics is distinguished by dynamism, while in parliamentary republics it is of a relatively slowed down nature. This pattern is also important for Ukraine since its political parties and parliamentary factions are extremely intransigent and selfish. All of this carries the danger that Ukrainian parliamentarianism risks chronic stagnation in its reactions to the challenges of the time.
The above arguments should also somehow be considered in their judgments by the Constitutional Court. The choice before it is fairly complex however it is specifically on this choice that a considerable percentage of that progress which the young State of Ukraine aspires to.
From the formal-juridical point of view (Article 83 of the Main Law), those forming a parliamentary coalition in Ukraine are deputies of a faction.
As for individual National Deputies, they can express their solidarity with the founders of the coalition through free votes (Article 80 § 2 of the Constitution). On the other hand, it is the very possibility of free which makes them potential participants of any constituent procedure.
If we bear in mind that National Deputies represent the nation as a whole and do not have imperative mandate, that they are elected by the people not to the coalition, but to the Verkhovna Rada, that both party members and non-members have the right to be added to the candidate lists, that after their vow National Deputies have the right to freely vote on any issue, that the sole function of a coalition is to form a government, then the question of individual National Deputies being part of the makeup of a coalition is virtually automatically resolved. In summary one sees a rule – principle: the coalition is formed by corporate subjects – parliamentary factions, however individual National Deputies may join it.
Put more simply, permission for individual National Deputies to be part of the coalition is no more than permission to support through personal voting the candidacy of Prime Minister and members of the government. This unqualified right is enjoyed by National Deputies from the moment that they make their oath. The forms of deputy activity are verbal and textual argumentation, as well as voting for or against any issue. And no faction may have any imperative power to influence the use of these forms.
Furthermore, even the “classic” membership of a National Deputy in a coalition through a faction does not oblige him or her to automatically vote according to the coalition choice. Even being in a faction which is a part of the coalition, a deputy has the right to not vote for a specific candidate for Prime Minister. However if that is the case, the right to join the coalition to promote the creation of the government should be enjoyed by each parliamentarian.
Otherwise the formation of a government can become either impossible altogether or excessively dependent on corporate agreements of only the “influential” National Deputies. This is illogical since according to the Constitution each National Deputy with relation to the people of Ukraine has the equal rights as other National Deputies. For this reason the Constitution envisages that decisions be taken through individual deputy choice.
A really achievable level of development of Ukraine’s political system inclines the national constitutional model to a relatively simply form of people’s representation (without excessive passions and ambitions). This is sufficient argument to legally formalize individual members in the coalition through norms of the Verkhovna Rada Regulations. All the more so since as we noted at the beginning, the Constitution places the responsibility on the Regulations for not only specifying but also determining the principles of activity of a coalition of parliamentary factions. Of course for this it would be highly expedient to turn the Regulations into a classic law.
A strict corporate model for forming the government without recognizing the possibility of individual membership in the coalition should be deemed dangerous for Ukraine’s progress. The arguments for this have been presented above.
10 May 2010
As well as in the links below, there are responses to the above arguments under Point of View