LJ user dibrov_s (Sergei Dibrov of Odesa, Ukraine) explains how the current crisis in Ukraine came to be and why he thinks the new election (and then some more) is absolutely necessary. This lengthy post (RUS) has received 366 comments so far and made it into the top 30 at Yandex Blogs portal:
Friends, what's happened was supposed to happen sooner or later: a bomb placed underneath the Verkhovna Rada [the Parliament] during the Orange Revolution has exploded.
At that time, on December 8, 2004, two laws were adopted by a package vote. One was about introducing changes to electoral law. The other was about introducing changes to the Constitution.
In other words, a deal was made: we're giving you the relatively fair election, without mass falsification that the Supreme Court discovered, and you're giving us the changes to the Constitution (“political reform”), which would deprive the newly-elected President of power and pass it on together with the paliament as a pay-off to political parties.
All in all, the political reform consists of two elements:
- the transfer of the Cabinet of Ministers (and the whole executive branch) under parliamentary control;
– MPs elected only by the party lists.
Political reform became a king's present to our, excuse me for the term, political parties. Excuse me for using this term because the word “politician” in our country is a synonym of the word “businessman,” and what we call “parties” are indeed lobby groups and business projects. And there's only one way into politics for all those eager to enter it: through the party's cashier's office. The thickness of the wallet, not some moral qualities or political convictions, play a decisive role during the casting of potential MPs. According to the media, an electable place on the biggest parties’ lists now costs up to tens of millions of dollars. People were looking for cheaper options and this sometimes led to funny episodes: often, the candidates’ lists included those who espoused views radically different from the views of “their” party or bloc. But no one cared about it: money doesn't smell.
The results of the spring 2006 election reflected the players’ positions more or less correctly: the three parties that supported Yushchenko's candidacy for the president's post won with insignificant advantage. Such a situation guaranteed certain stability and the lack of cardinal changes to the direction the country was moving in: to overcome the president's veto or to introduce changes to the Constitution is possible only when there is a consensus between all the major political forces of the country.
But because of the corrupted way of forming party lists, many MPs turned out to be political businessmen for whom the MP's mandates were nothing but investment projects worth many millions. Not contrained by the party discipline, political convictions and the imperative mandate, they quickly began to “solve their own problems” – which had little to do with their campaign promises and the programs of political forces they represented. This has led to the second wave of corruption, this time inside parliament. MPs elected on party lists began moving between factions. Not a single one of such moves was motivated ideologically, but there were always behind-the-scenes comments on how much every one of these “acquisitions” cost the parliamentary majority.
According to the logic of the political reform and the Constitution, it is impossible for an MP elected on a party list to move to another faction. After all, the voters voted not for some specific personalities, but for the pre-election program, and the MPs should either work for this program's fulfillment or resign. This is why, according to the Constitution, an MP who announces his departure from the faction automatically loses the mandate, and his place is taken by the person following him on the party list. But they found a loophole: MPs were not leaving their factions, but instead were simply [joining the ruling coalition – and were being accepted] – even though, according to the Constitution, coalition is formed not by individual MPs, but exclusively by parliamentary factions.
Obviously, such a way of forming the coalition is illegal. The Constitutional Court could have ended this situation by interpreting the corresponding segment of the [Constitution]. And while it was at it, the Constitutional Court could have cancelled all of the political reform, which, as I've already said, was adopted in violation of the Constitution. And this is why the parliament spent a year and a half blocking the [Court's] work by not swearing in the judges and not appointing them [in accordance with the quota system]. Now, after the president has applied some pressure and the judges have been appointed, [the Court] sort of began to work again, but in the eight months it has not passed a single verdict. And it looks like it's not going to.
Last summer, Yushchenko chose to ignore the fact that the parliamentary majority had been formed unlawfully. But [things grew much worse] when bribing of MPs [to get them to defect] became widespread. Representatives of the Party of the Regions did not try to conceal their plan for the nearest future: to buy as many MPs as was needed to achieve the constitutional majority – 2/3 of [PMs]. If their plan had been implemented, it would have allowed the political force that had received 32 percent of the votes to run the country on its own – and even introduce changes into the Constitution. […]
Without a doubt, parliamentary corruption threatens the president, too. If the coalition buys enough votes to reach the needed 300 [MPs], Yushchenko will lose what remains of his influence. Moreover, his post might be eliminated altogether, as something not needed. Under these circumstances, the president “suddenly” remembered about the fact that the coalition had been formed with some violations and decided to use his constitutional right to declare the early election and disband the parliament because the ruling coalition had not been formed within one month granted by the Constitution.
Now, on to what I think about the events.
My position is very simple. Everything that's taking place is the result of the unlawful political reform. […]
By the way, the coalition is currently planning the so-called “second stage of the political reform,” which would transfer all local power to the local councils and would turn the councils of all levels into a total [house of ill repute] similar to what Verkhovna Rada is.
As for the current situation: Rada has to be disbanded. […] It's impossible to live in a country where there are no doubts about the highest legislative organ's corruptedness. […] Let them have reelection three or four more times, and then maybe it'll become so unprofitable to invest into the “MP mandate” project that it will no longer interest the serious [thuggish] guys.
Sometimes you hear: “to announce the reelection is usurping power.” It's ridiculous. The power in the country belongs not to the President, not to the Cabinet of Ministers, not even to the Verkhovna Rada. All power in Ukraine belongs to the Ukrainian people. And to set a date for the reelection isn't usurping but returning the power to its lawful owner. The power that some were trying to usurp by the shameless bribing of MPs who had not received a single individual vote.
The last question. Friends are wondering about what's going on on Khreshchatyk and whether there'll be “Maidan-2.” Here's my answer:
In 2004, people who gathered at Maidan were protesting against falsification of the election results. They were demanding a re-vote, to avoid having their votes bought or stolen shamelessly.
In 2007, people who are at Maidan are protesting against holding the popular election. That is, these people have come out to the square because they don't want to go to the polls.
Here's the difference, with all the implications.
One more thing. It's obvious that serious political forces aren't afraid of the election. There'll be no parliament without them – and they know it well. Mainly, it's the political marginals of the bloody hues who are making all the noise – Communists and Socialists. Both forces may remain outside parliament. Communist – due to natural causes, because of the unstoppable shrinking of their traditional elecrorate. And Socialists because in this whole brothel of a parliament they played the most corrupted violin and were selling out wholesale. And those who voted for them a year ago remember this very well, so their chances of getting back into the parliament are minuscule.
And this is good.
Viktor Yushchenko, Ukraine’s President, having sacked the democratically elected parliament in the process has created Ukraine’s first major Constitutional Crisis since its independence.
At the heat of the matter is the question of separation of powers between the Office of the President and the Parliament. The Parliamentary majority has claimed that the actions of the President is unconstitutional in that the President does not have power granted by the constitution to dismiss the parliament.
Ukraine’s Constitution outline 3 specific conditions (article 90) in which the President has the authority to dismiss the parliament. Not one of these conditions relates to the existing political conflict.
The President claims that the Parliamentary majority has exceeded its authority in securing individual support form members of the opposition who have separated from their party/.faction and decided to support the government. Yushchenko claims that the Constitution envisages a Parliamentary majority established by the formation of political factions/parties and not composed of individuals. This is a mute point but one that is outlines in the constitution.
If we assume that the President was right and the formation of the parliamentary majority comprising individuals is unconstitutional does that warrant the President dismissing the parliament and more important does the president have the authority to act and to sack the Parliament.
This is a very quite point and one that relies on the Constitutional Court broadening the provisions of Ukraine’s Constitution to determine if there is an implied authority of the President who has an obligation to uphold the Constitution. Can you exceed the limited authority on order to protect the authority of the constitution itself.
There are other alternatives to resolving the issues identified by Yushchenko as being unconstitutional. one was to have the issue to the formation of the Parliamentary majority referred to the Constitutional Court and have them determine the issue. The President has done just that but clearly the President felt that he could not wait for the Constitutional Court to determine its position.
Those who have been following events in Ukraine would be sceptical and question whether the President is acting in good faith. There is nothing in the constitution that prevents individual members of Parliament from deciding to support the initiatives of the government, whether they or their parties are member of the governing coalition.
The President in collusion with the Parliamentary Opposition had embarked on a campaign of destabilisation where the President indicated that he would veto all legislation that he did not agree with. In the absence of a constitutional majority the President had the ability to hold the parliament to ransom, “Agree with me or else I will veto your initiatives” This is an abuse of power and authority and many members of the Parliament did not support this approach and as such many decided to split from the opposition benches and support the government. As a result the governing coalition was on the verge of obtaining a constitutional 2/3rds majority of 300 members of parliament which would have allowed the parliament to override the President’s authority and even consider issues of further constitutional reform.
Much of the current conflict is due primarily to the actions and policies of the President. A president who is trying to hold on to power at all costs.
Ukraine in 2006 made a transition from a Presidential ‘rule by decree’ dictatorship in favour of a parliamentary ‘rule of law democracy in line with other European States.
The president having lost the election and having failed to successfully negotiate a posting in the governing coalition has been at odds with the democratically elected parliament ever since.
If the President was supportive the need for rule of law he would wait until the Constitutional Court rules as to what authority and under what conditions the President can dismiss the parliament. A parliament that maintains the confidence of the majority of elected members.
There is not need to act in haste. The Constitutional Court has indicated that it will make a decision on the current legality of the President’s actions on April 11.
At the same time the President has a deadline for the Government to authorise the expenditure for the holding of fresh parliamentary elections and if the government do not comply with the presidents decree Yushchenko with the support of the National Security Council will declare a state of emergence and implement martial law without waiting for the constitutional Court to rule. Effectively installing a dictatorship and seriously dividing the nations by undermining Ukraine’s democratic development.
If the Constitutional Court is allowed to rule on the validity of the Presidents actions then the Court will decide The President future.
If the Constitutional Court rules in favour of the president then the Government would have no alternative but to comply within the presidents decree and to proceed with a new election.
If the Court rules against the President then Yuchenko will have no other option but to resign. This is a may or break move for the president who has backed himself into a corner. The odds are that if a fresh election is held then the results will not change. Which begs the question why hold an election if the results will not differ.
Too many ifs and not enough rule of law…
PACE representative: If decree on dissolving parliament ruled unconstitutional, Yushchenko will have to resign
PACE monitoring committee co-reporter Renate Wohlwend believes that the Ukrainian president had not enough legal grounds to dissolve the parliament. She said this in an interview to 2000 newspaper (Ukraine).
“The main cause of the presidential decision [to dissolve the parliament] was his attempt to cease MPs changing their factions. I am afraid, legally, it is not enough to dissolve the parliament,” Renate Wohlwend said. The PACE co-reporter expressed hope that Ukraine’s Constitutional Court would speed up its consideration of the question whether Yushchenko’s decree was constitutional. “I am afraid, if it takes months for the Constitutional Court to rule whether the president was right or wrong, clashes in the streets can start between those, who support the opposition, and those, who support Yanukovich,” Renate Wohlwend believes.
According to her, early elections will not help in settling the problem. “If the Constitutional Court decides to support the elections, they must be conducted. After the elections, Ukraine will be brought back to 2-3 years backwards in development of its democratic institutions and establishment of the rule of law,” Ms. Wohlwend said. “If the decree is pronounced unconstitutional, President Yushchenko will have to resign,” the PACE co-reporter believes.
On April 2, the power crisis in Ukraine developed into a new stage. President Viktor Yushchenko signed a decree to dissolve the Supreme Rada and appointed a date for the early elections, May 27. The parliament and the government agreed to obey the decree, only if the Constitutional Court decides the decree does not breach the constitution. On April 5, Ukraine’s Constitutional Court confirmed that it opened the case on determining whether President Viktor Yushchenko’s decree to dissolve the Supreme Rada was constitutional and pronounced the case urgent.
The crux of the matter here is whether Ukraine will strive for the rule of law or not. Clearly Yushchenko has failed to follow up on his promises of reform made during the Orange Revolution, but it would be a sad indictment of Ukrainian society, and, indeed, world opinion, if people took that to mean that Ukraine cannot or should not strive for a more open society. We have all seen the steady backtracking on democractic norms that has occurred since Yanukovich was invited back into power in 2006, which has taken the form of using the judiciary to pursue political vendettas (Lutsenko etc), encouraging self-censorship by allowing media outlets to be attacked and threatened, and finally buying off MPs who were elected on opposition party lists. The assassination of a top Russian mafia boss with the apparent cooperation of law enforcement agents two weeks ago as he was leaving court after pleading for his life highlights this rising tide of lawlessmess that threatened to return Ukraine to the squalid apathy of the Kuchma years. This is all linked to the constitutional reforms passed while nobody was paying much attention during the hysteria of 2004, but more than that it is about the direction the country will take for the forseeable future. The irony is that Yushchenko has played his trump card dissolving parliament at arugably his weakest moment, but it may still prove enough. Whatever the court decides, talk of civil confrontations and the division of Ukraine is deeply irresponsible.
Sergei Dibrov certainly makes a few interesting points. However, it is far from clear how article 83 of the constitution should be interpreted. Is it about building a coalition to form the basis of a government or should it be seen as a whip on parliamentary deputies to stay loyal to their parties or fractions. Still, even if one would agree with the president that deputies should stay loyal with their fractions throughout a parliamentary session, there simply is no way to hinder them from voting however they want, as long as they nominally belong to the fraction they once signed up for. Article 83 cannot motivate calling for new elections.
As for the Constitutional Court, I believe that it was the Verkhovna Rada that referred the question of legality of the presidential decree on elections to it.
Still, the Court has 15 days to decide whether they at all will want to address the matter, and is in no way bound to the 5 days within which parliament urged them to decide the issue. So, even if they would consider making a ruling, they have lots of time to think the matter through whether they at all would want to meddle into the conflict.
Judging from the composition of the 18 member Court, Yushchenko may well have a majority behind him for turning down even considering the issue. Then the question of a state of emergency may become a reality, following the Constitution.
That Yushchenko did not follow article 90 of the Constitition is quite clear. Consequently, there is no formal constitutional support for president Yushchenko’s decree to disband parliament and call for new elections – either by articles 83 or 90.
Still, one might well argue that he acted in the “spirit of the Constitution” – to uphold the constitutional order. This is a much stronger case, which may explain his statement that it was not only his right – it was his obligation.
I cannot exactly recollect how the rules on constitutional changes are since the 8 December 2004 amendments, but I recollect that there were some prerequisites for a plebiscite confirming constitutional changes. Still, is this an amendment made then – in 2004 – or is it something new? If not, it would appear that a qualified majority (300 out of 450) of MPs may make constitutional changes as they see fit – at least if judging from the changes made in 2004.
If 2/3 of a parliament may make changes in the constitution without arepeated confirmation after another election, it would be an exception to most democratic constitutions. Still, the home of parliamentary democracy, namely Great Britain, has no such bars for constitutional changes. All in all, it is quite an interesting case of the philosophy of law and constitutional law in itself, so it would be very interesting to see a ruling from the Constitutional Court of Ukraine. Still, its 6+6+6 composition of judges, parliamentarians, and presidential representatives, will most probably prevent any real discussion on the “spirit of the Constitution”. If such a discussion and consequent ruling would take place, based on a true reasoning on the foundation of the constitution, it might actually strengthen Ukraine as a democracy. This is however not at all realistic, so regrettably the crisis seems to be continuing without really addressing the legal issues at hand.
The constitutional Court has just deferred consideration of the Governments appeal. it will not be considered on April 17.
This plays into the hands of the President who does not want the Court to consider the appeal. The longer the Court tales to decide on the matter the worst the situation gets. IN visiting friends at one of the law institute here in Ukraine all the students and faculty are of the view that the President’s decree is unconstitutional. A view shared by PACE representatives.
This is akin to using a missile to kill a rouge bull.
There is no proven connection between the assignation of a Russian mafia boss and the current crisis or the Ukrainian Government. the comments above are pure speculation pandering to ongoing stereotypes.
This is not a pro West versus pro Russian war. this is a battle for power between the President and the Parliament. give me a Parliamentary democracy any day. All European Union Countries are parliamentary democracies. the Government over the last year has made considerable strides in bringing Ukraine in line with European Standards. the Government was committed to a policy of standardisation and interrogation with Europe. it is possible to be pro Ukrainian and pro Europe and not anti Russian at the same time. They are not exclusive of each other.
An Appeal for Balanced and Truthful Information from Renate Wohlwend
“I would like here to fully endorse the position taken by my colleague, Hanne Severinsen and published on the Maidan website: (http://eng.maidanua.org/node/711).
“Comments I made recently in a telephone interview to a Ukrainian journalist would appear to have been distorted in so far as they suggest a categorical tone and that I am taking sides in the present issue. Since these comments were reported and embellished in various publications (including the newspaper “2000” and the official site of the Party of the Regions), I would like to stress that any other opinions and statements regarding the present situation in Ukraine made in those publications did not originate from me. I would also suggest that the conclusions and general tone of all of these publications bore little resemblance to what I did in fact say.”
Full statement at http://eng.maidanua.org/node/712
Comments attributed by “Ukraine today” above are inaccurate and untrue.
Thank you Terry H. for this factual post, unlike those by ‘Ukraine Today”, as Mr. Wohlwend says, “I would respectfully suggest that any further distortions of what I or any other official has said should lead you only to draw conclusions about those making such irresponsible claims.” This says it all……..
I’m very impressed with this article which so well depicts the current atmosphere in Ukraine. You have shed some light on some reforms that many of us weren’t familiar with, that occurred in 2004, regarding the reforms “- MPs elected only by the party lists.” I wasn’t aware that it was a reform and not already in the constitution. Or am I mistaken. I’d like to get into if further, but time limits me. I’ll be in Kyiv around May 25th for a meeting with some other people from around the globe. I’d like to know if you’re available to speek at our meeting on 26th of May or 27th of May. It would be a great pleasure to have you at our meeting. Thank you for your intelligent views.
Hmmm Comments have gone missing… and not been publihsed.
Tuesday, April 17, 2007
pro-Western and pro-Russian steroeotype offensive to Wisdom of Ukraine
Unity of Ukraine is crucial for unity of Europe – PACE President
Dividing Ukraine into `pro-Western` and `pro-Russian` is an offence to the wisdom of the people of Ukraine,” said Council of Europe Parliamentary Assembly President René van der Linden.
How true. The sooner the Western and Ukrainian media cease promoting this false stereotype the better off Ukraine and the world will be.