A Constitutional Trap for the Opposition

2014/02/14 • News

By Mustafa Nayem, Ukrainska Pravda

Two weeks after settling on a conditional truce in the street, the struggle over political positions has spilled over into high office. Both the government and the opposition have almost forgotten about Maidan’s urgent requirements to have the perpetrators of violence punished and to hold early presidential elections.

Vitaliy Klitschko is the only one who keeps bringing up the second point. According to the sources of Ukrainska Pravda, the other participants in the negotiations, both from the opposition and the government, have stopped even paying attention to it. It has become a tradition, a ritual of sorts, to remind Yanukovych that people are demanding his resignation and then to continue to discuss high politics.

At the negotiating table, the demands of the street have resulted in two concrete issues: forming a new government and amending the Constitution. As for the make-up of the new Cabinet of Ministers, the process has been suspended for now since none of the parties has reached a final decision.

Vitaliy Klitschko and his partners are actively pushing for Arseniy Yatseniuk to join the government in order to remove him as a competitor or, if that fails, to call him a traitor and the regime’s accomplice. Yatseniuk, who is aware of the risks, is trying to involve all oppositional forces in the process of his promotion. However, after the mysterious recent letter from Yulia Tymoshenko, even these attempts have ceased.

Even Viktor Yanukovych has not yet decided on the new head of government. The candidacy of Serhiy Arbuzov appears to be less and less transitional. And any day now, a new faction in the Party of Regions code-named Democratic Platform will emerge, led by Serhiy Tygipko and attracting all those looking for concessions within the new Cabinet.

Meanwhile, still to come are meetings in Moscow, where obviously the main issue to be discussed is which candidate for head of Ukraine’s government Vladimir Putin can entrust with the lion’s share of the promised USD 15bnn.

According to Ukrainska Pravda sources, as soon as next week the Party of Regions plans to call an extraordinary session of the Verkhovna Rada, during which a new head of government is likely to be proposed.  Andriy Kluyev is the expected candidate.

Thus, the only topic of continuing negotiations revolves around changes to the Constitution. For two weeks now the opposition has been trying to invent a quick method for reducing Viktor Yanukovych’s full powers by undermining his majority in the Rada.

Meanwhile, the administration of President Yanukovych is doing all it can to postpone any changes to the Constitution by referring the issue to a constitutional commission that can delay the process for another six months, until the autumn session of the Rada.

In the event that negotiations reach a dead end and the opposition refuses to continue, the President’s lawyers have prepared two traps for the opposition: the possible dissolution of the Rada or, in an even more cynical scenario, the submission of constitutional amendments proposed by the opposition to a long examination by the Venice Commission (European Commission for Democracy through Law).

In reality, the opposition is already following these two scenarios. Ukrainska Pravda has in its possession changes to the Constitution proposed by the Batkivshchyna Party and to some extent  by the UDAR faction. Sources also have revealed a detailed plan by the presidential administration for a possible dissolution of the Rada.

The divorce process to dissolve the Parliament

The Constitutional Act, prepared by the opposition to bring back the Constitution of 2004, will remain unaddressed. From the very beginning, this document had limited chances. Not only did the opposition lack the necessary votes, but it could not even have it placed on the agenda. Parliamentary procedures provides an exhaustive list of documents that could be submitted for consideration. Such a thing as a constitutional act is not listed, and its inclusion on the agenda was absurd even at that stage.

However, the mere appearance of the Constitutional Act really frightened the presidential administration. Not because there was any chance for its implementation, but because it could have undermined the majority and provided for a theoretical constitutional process that would bypass the president. Even if the unfeasibility of this plan is an absolute certainty, its very nature as a precedent could have stricken a blow and created a legal conflict.

In response, government lawyers began looking into the possibility of the dissolution of the Rada. Moreover, the administration has already made inquiries to the Central Election Commission on the estimated costs of possible early elections. The Commission responded that 900 million hryvnia would be required. These funds can be accessed at any time without the consent of the Rada and without changes to the state budget because, according to the elections law, the financing of early elections comes from the government reserves.

According to information received by Ukrayinska Pravda, the presidential administration already prepared two draft decrees for the dissolution of the Rada, with two different schemes for legal justification. The first one argues that Viktor Yanukovych already has the unconditional right to call early parliamentary elections. The lawyers recommend that the administration ignore Article 90 of the Constitution, which provides that the President of Ukraine can dissolve the parliament early if plenary sessions do not take place within thirty days.

According to their logic, since Article 90 is missing the word “only,” the President has every right to dissolve the Parliament at his own discretion. According to Ukrainska Pravda sources, in the first scheme for dissolving the Rada Viktor Yanukovych would refer to Article 77 of the Constitution of Ukraine, which deals with the president’s right to call for early parliamentary elections.

However, aware of the legal vulnerability of this scheme, the administration has developed another model for dissolving the Rada which they plan to implement if the Rada meets to approve amendments to the Constitution that would bypass the Constitutional Court and the presidential administration.

The author of this procedure is said to be the deputy head of the presidential administration Andriy Portnov who, together with his subordinates, tracked down in the archives of the Constitutional Court a ruling of May 8, 1997 regarding an appeal of a Ukrainian citizen as part of his divorce proceedings in 1983!

The essence of the case is that a Lutsk resident Mykola Romanchuk, unsatisfied with a court ruling in the case of divorce from his wife, appealed to the Constitutional Court, asking it to explain why the President of Ukraine had not responded or intervened in the lawsuit and had not protected his rights.

For obvious reasons, the Constitutional Court rejected Romanchuk’s appeal. However, in its ruling the court inadvertently attempted to explain presidential powers and noted that in order to eliminate a threat to the state and to its citizens the president may “directly intervene in critical situations.”

Therefore, if the Rada attempts to vote for the new Constitution or to reinstitute its 2004 version, Viktor Yanukovych will declare that this is an usurpation of power that directly threatens the rights of citizens. Then he will sign a decree to dissolve the Parliament, referring to the decision of the Constitutional Court regarding a divorce case.

Batkivshchyna strikes first

Meanwhile, the opposition has become aware of the administration’s plans and has started preparing its own version the Constitution. Two teams of lawyers, one from Batkivshchyna and another from UDAR, immediately began to prepare the Amendments to the Constitution. Ukrainska Pravda already has in its possession the proposals from Batkivshchyna. A comparison table of the two versions has been transmitted to the Party of Regions and President’s administration. Meanwhile, UDAR members began to prepare their own comments on this bill. Presently, both factions are negotiating their positions.

Back to the coalition

First of all, Batkivshchyna wants to restore the concept of a parliamentary coalition consisting of  a majority of national MPs in the constitutional composition of the Rada. However, in contrast to the Constitution of 2004, it introduces the possibility to form a majority based on individual membership of MPs rather based on factions.

At present such reasoning by the opposition is understandable, individual membership will give them the possibility to undermine the Party of Regions majority more effectively. But back in 2006-2007 Batkivshchyna was against individual MPs joining the coalition and even referred this matter to the Constitutional Court.

At that time, Yulia Tymoshenko claimed that individual membership would result in a government majority through “fraud, blackmail and betrayal,” since a government created by a majority could find it cheaper to bribe individual deputies than entire factions.

In the Batkivshchyna proposal, the regulation prohibiting people with criminal records to be elected to the Rada is excluded. Obviously, this statute was adapted for Yulia Tymoshenko in case she is released from jail. The removal of disqualification for prior convictions would allow her to run without waiting for rehabilitation by a court and the expungement of her criminal record.

Other innovations include a proposal to simplify the process of parliamentary voting by reducing the number of required votes to pass a resolution. A simple majority of those present in a session hall would suffice, not the majority of the total constitutional composition as is the case now. Thus, 226 deputies would constitute a quorum, while the minimum number of votes for adopting any decision would be reduced to 113 votes.

Also proposed is a ban on moonlighting in the Rada while pursuing other professional activities. If a deputy fails to resolve this such conflict of interest within 20 days, he would lose his seat. It is important to note that this regulation already exists in Ukrainian legislation but only as a law.

The Batkivshchyna plan also proposes the complete elimination of vertical government administration by transferring all power in the regions and oblasts to executive structures created by locally elected councils. However, the biggest changes in Batkivshchyna’s draft regard presidency.

President without authority and simplified impeachment

It is noteworthy that nowhere in the Batkivshchyna proposal is there any mention of the Maidan’s main demand for the removal of Yanukovych and early presidential elections. This item is not even included in the transitional provisions of the bill, even though, for example, it is stated that the next election to the Rada are to be held on the last Sunday in October 2017.

There is only one mention that the next presidential election in Ukraine is to be held on the last Sunday in March of the fifth year of the presidency. In fact, this means that Batkivshchyna may abandon any rhetoric of early elections since the proposed date for the next election for head of state remains unchanged, March 2015.

Of course this is relevant only if Viktor Yanukovych fails to resign. (Besides, the Rada has already voted in similar changes to the Constitution in February 2011.) However, among the proposed changes is a significantly simplified process for impeaching the president. Under the current Constitution, the parliament initiates the impeachment process but the decision can be passed by 337 votes only after a conclusion by the Constitutional and Supreme courts.

Currently, the opposition proposes to initiate the question of impeachment with a third of the Rada, 150 votes. The actual removal of the president would require 300 votes instead of the 337 required now. Furthermore, the Batkivshchyna proposal would completely eliminate any involvement by the Constitutional and Supreme courts, requiring only the conclusion by a special Inquiry commission. Meanwhile, according to the Batkivshchyna version, a future president would be deprived of a range of significant powers and transformed into a master of ceremonies.

Specifically, Batkivshchyna also proposes to limit the president’s right to dissolve the Rada. He would be permitted to sign the required decree only in one instance: if the new government is not formed within 60 days after the resignation of the Cabinet. Accordingly, the president would not be able to influence the Rada even if it remains inactive for 30 days, as is the case in both the current Constitution and the 2004 version.

The president would be completely removed from any real influence on the composition of the Constitutional Court. Currently, and even in the 2004 Constitution, the head of state has the right to appoint one third of the Constitutional Court judged, 6 out of 18. Batkivshchyna is proposing that the Constitutional Court be formed only by the Verkhovna Rada and the Congress of Judges of Ukraine, each one appointing 9 judges.

Additionally, the head of state would be divested of the right to appoint and dismiss the Attorney General and the Head of the Security Service. According to the Batkivshchyna proposal, candidates for Attorney General and the head of Security Services would be proposed by parliamentary coalitions and the president would only have the right to present these candidates for Rada’s review.

The president also would be deprived on any influence on the formation of the boards of the National Bank of Ukraine and the National Television and Broadcasting Council of Ukraine. Currently the president appoints half of the members in the two bodies. Batkivshchyna also proposes removing the president’s sole right to declare war. Henceforth, the president would need to seek the consent of the parliament.

Batkivshchyna also proposes to eliminate the statute requiring that the Rada consider any unscheduled bills proposed by the president as urgent and to simplify the process of sending requests to the president. Currently, MPs and committees must have 150 votes in the assembly before they can send requests to the president. In the future, no vote would be required, and requests would be directed to the president immediately.

UDAR’s Commentary

At the time of publication of this article, Vitaliy Klitschko’s aides had commented only on the first section of Batkivshchyna’s proposed amendments to the Constitution, nanely those dealing with the work of the Verkhovna Rada. Currently, UDAR proposes to reject any return of the term “coalition” and instead transfer all authority to the majority. In other words, they want to avoid regulating the process of creating parliamentary majorities.

UDAR also opposes the adoption of resolutions in the Rada by a majority of MPs present in the assembly hall. However, in a separate sentence, it proposes to ban any voting for absent MPs.

In addition, UDAR believes the following points are essential:

– To prohibit the election to the Verkhovna Rada of citizens convicted of grave crimes.

– To transfer the right to call early parliamentary elections from the president to the Central Election Commission.

– To allow law enforcement agencies to hold MPs criminally responsible (in other words, to initiate criminal proceedings), but to forbid their arrest without a court order.

– To require 270 votes to approve agenda in the Rada.

The UDAR faction promised to prepare a complete version of their proposals shortly.

Venetian trap

The final version of the opposition’s amendments to the Constitution could be ready in the coming weeks. Currently both factions are planning either to prepare some more or less agreed upon text, or to propose a comparative table of the three proposals to the Rada in order to reach an agreement in the session hall.

What happens next remains an open question. According to the sources of Ukrainska Pravda, the administration is preparing a stalemate option for the opposition.  This would involve the argument that to work together the opposition and government need to proceed “the right way, the European way” and hand over the proposed amendments to the Constitution for expertise of the Venice Commission, as required by the Parliamentary Assembly of the Council of Europe.

However, it is well known that this commission is not the most expeditious European organization. Furthermore, if we consider that the representative for Ukraine at the Venice Commission is MP Volodymyr Pylypenko, who is close to Andriy Portnov, then we can confidently expect that conclusions on the opposition’s version of the Constitution will not be made before autumn this year. This means that the new Constitution will not be available in Ukraine before the next presidential election, since the process of passing amendments to the Constitution is expected to require two sessions of the parliament.

The only thing we can hope for is that time will not work for Viktor Yanukovych. Apart from the opposition’s negotiations with the government, the Street remains a significant factor. After all, the Maidan forced both sides to begin negotiations in the first place.

© 2000-2014 Ukrainska Pravda

 

Translated by Anna Mostovych

Edited by Mariana Budjeryn

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