Monday, November 01, 2010

Exit Polls show minority wins

Independent Exit polls conducted by Research and Branding and published in Kyiv Post show Party of Regions ahead in local elections

What's interesting to note is that with the exception of Donetsk all other regions the highest polling party did not poll over 50%. The election of Mayor being won by candidates that do not have majority support. This is a major shortfall of the first-past-the-post voting system.

A better option would be to introduce preferential "Alternative voting where candidates/parties are ranked in order of preference. If no candidate has 50% or more votes then the candidates with the least votes are excluded and their votes distributed according to the voters order to preface, This process continues until a candidate has 50% or more support.  More information www.fairvote.org


The other interesting outcome is that Svoboda have out polled all other parties including Tymoshenko and Our Ukraine in Western Ukraine.  If this was repeated in a Parliamentary election Sovoda would most likely be represented in Ukraine's Parliament. Lytvyn and Our Ukraine would lose representation and Tymoshenko would be significantly reduced in numbers.

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Saturday, October 30, 2010

Girl who cried wolf - Credibility or Liability?

There has been a lot of speculation and allegations about Ukraine's local elections which are being held this weekend.  Normally local elections would not rate much attention but in Ukraine the word election and corruption go hand in hand.

Former Prime-Minster come self declared opposition leader in exile (She is not a member of parliament) Yulia Tymoshenko, has come out and declared the election fraudulent with another round of allegations of vote rigging and illegal printing of ballot papers.

Tymoshenko last week took the media with her to expose a illegal printing of ballot papers in Lviv.  Problem was when they got there there was no signs or evidence of any ballot papers.  Similar allegation were made in Kharkiv region but it turned out the factory was authorised to publish ballot papers.

The real problem facing Tymoshenko is credibility.

During the 2010 Presidential elections Tymoshenko also made allegations of vote fraud and declared that the elections in which she lost by a margin of 3 percent were fraudulent.  This in spite the fact that the result of the elections had been endorsed by all International observer groups and was backed up by public onion polls and exist polls all which confirmed the official results.  On review there was no evidence to back up the claims made by Tymoshenko.  Tymoshenko never the less stated that she would pursue her allegations and challenge the results in the courts and if need be would appeal to the International Community. Weeks went by and Tymoshenko failed to provide any evidence of any serious wrong doing or any facts that substantiated her claim that the elections was fraudulent. Faced with growing criticism and lack of international backers and a serious loss of confidence Tymoshenko withdraw her challenge against the results of the election.


Nine months later Ukraine is back in a new election cycle and Tymoshenko is again alleging election fraud.  It is not that there is no concern about the election, there is, but Tymoshenko has to date not provided any substantial evidence to support her claims.

The International community concerned about the need for open transparency and confidence in the internal elections has set a delegation of observers.  Many who have a bias agenda . Most are reluctant to be seen to back Tymoshenko's allegations and there is growing concern that she may have lost all credibility to such an extent that no-one is prepared to take her seriously.

It has become a situation where even if there is voter fraud no one will come to her aid or believe her, such is the loss of her credibility.  The polls are also showing a corresponding loss of Tymoshenko's support in the electorate.

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Wednesday, October 27, 2010

Debate: Ukraine's Future Governance

Semi-Presidentialism, Political Reform, and the Future of Ukrainian Democracy

by Andreas Umland

Source: Foreign Policy Journal.

 
The current public controversy about what division of power Ukraine should have in the future is overdue. 

The various political crises of the past fifteen years have amply shown that the Ukrainian Constitution, whether in its 1996 or 2004 versions, needs revision. However, the arguments made in Ukrainian mass media today concerning constitutional reform mostly ignore what political science has to say about the appropriateness of various forms of presidential rule for post-communist transition states. For this reason, many of the current public exchanges about the division of power that Ukraine supposedly requires miss the point. These discussions are mainly about the amount of prerogatives that Ukraine’s future more or less powerful President should have. The arguments thus remain within the realm of a comparison between the “Kuchmism” of 1996-2004, and the dual rule of 2006-2010 – neither very successful periods in recent Ukrainian political history. Sometimes, Ukraine’s semi-presidential proto-democratic system is even compared to Russia’s pseudo-presidential authoritarian regime.
Comparative political research suggests that, instead, the country needs a serious discussion about of the range and structure of the prerogatives of parliament. Ideally, such a revision of the Ukrainian Constitution would lead to the establishment of a political system dominated by the Verkhovna Rada, and with a weak President. Or it would mean the creation of a de jure parliamentary republic with a non-elected figurehead President. At least, this is what the results of recent investigations by political scientists into the political systems in the post-communist space prescribe.

Most of the deliberations concerning a modification of the Constitution currently shown on Ukrainian TV channels are about whether Ukraine should have a presidential-parliamentary or parliamentary-presidential form of government. These are two versions of the semi-presidential form of government — the necessity of which is taken for granted by many, if not most discussants. The first presidential-parliamentary version refers, in the Ukrainian case, to the original regulations of the 1996 Constitution of Ukraine. It implies an, in fact, super-presidential system where the Prime-Minister is reduced to the role of an assistant to, scapegoat for, and whipping boy of the President. The second, parliamentary-presidential version, instead, refers to the real division of government that has come into force on January 1st, 2006. Since then, the Ukrainian state’s executive prerogatives have been divided between President and Prime-Minister. Arguably, only since 2006 has the term “semi-presidentialism” actually come to make sense in describing Ukraine’s political system. Before that, the substantive powers of the President where closer to a purely and strongly presidential system of government rather than reminiscent of a divided executive like that of contemporary France.

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Tuesday, October 26, 2010

Nationalism versus Citizenship

Much of the debate in Ukraine is about the perceived notion of "Nationalism" and  ethnicity, the  us versus them argument.

Russia is not a threat to Ukraine, it is Ukrainians and their political leaders that undermine Ukraine's stability and prosperity.  Their political leaders. sadly, have failed to represent their Citizens. Instead they seek to promote division  based on ethnicity. 


The concept of Nationalism more often then not divides a nation as opposed to uniting its people.  One mans notion of National values is another mans vilification. Exactly who is  Ukrainian and who is not?  And should it matter?  No more is this divide greatest then in the Language debate.  Nationalism is more often than not used to rally the troops when those that promote it as a political tool have nothing else to unite the nation or offer as an alternative policy to secure support.  It is for this reason Ukraine remains divided.

Ethnically Ukraine encompasses many nationalities and ethnic groups. It is the centre of the European continent after all.  The various ethnic groups include: Tatars, Hungarians, Polish, Romanians, Swedish, Germans, Austrians, Russian and Hutzals.  In many ways it is its diversity that makes Ukraine and should be what unites Ukraine. Nationalism is good for promoting various culture but it is dangerous when used as a political tool.

What Ukraine today needs is to develop a sense of Citizenship and the values that come with a democratic society that engages and seeks to unit all its citizens.  I'ts Citizenship that is the most important and from a sense of Citizenship and National pride comes recognition of cultural values which includes all languages.

Democracy is not based on nationalism it is based on universal suffrage, Citizenship and representative governance.

The sooner the political debate in Ukraine can begin to focus on Citizenship  the sooner Ukraine can put and end to division and move forward as one nation. one state with a reverence for human rights and democratic values.

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Monday, October 25, 2010

Now is the time for all good men to come to the aid of the Country

Ukraine democratic coalition needs a common policy for reform.

Where to?  Whats next?
Ukraine needs to form a "Democratic coalition" with a single goal of getting the foundation for a true independent democratic state right

Ukraine needs to rebuild the foundation stones of democracy.

It has to make a stand for set the agenda for reform.  

Get the foundations right and the rest should follow.  Get it wrong and the state will fall.

If the democratic coalition fails to come up with a united position then democracy in Ukraine will be a lost cause.

The coalition does not have to agree to support each other in government but it must be united in its position for democratic constitutional reform. 

IT MUST ADVOCATE FROM A POSITION OF UNITY 

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Monday, October 11, 2010

Food for Thought

In attempt to attract media attention supporters of Yulia Tymoshenko went on a hunger strike. The hunger strike, of course, was just a publicity stunt and no one expected it would last let along have any impact or influence world opinion.

Yanukovych's team have won one over Tymoshenko.   In what can only be seen as a brilliant tactic on their behalf the Ukrainian authorities organised a food and agriculture display to be held on the site that Tymoshenko supporters had chosen to stage their hunger strike.

The strike lasted no more then seven days before Yulia called it off.

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Saturday, October 09, 2010

Which part of PACE reform does Yanukovych not understand?

There is growing concern being expressed in the corridors of power in Europe with representatives of the Parliamentary Assembly of the Council of Europe (PACE)  discovering that Yanukovych has misunderstood the recommendations and directions that Europe wants to see Ukraine take.

The changes that saw Ukraine revert back to the provisions of the 1996 version of its Constitution following the determination of Ukraine's Constitutional court has set off alarm bells that Ukraine is taking a backward step.

PACE whilst critical of certain provisions of the 2004 Constitutional Amendments were not opposed to them in fact they were supportive.  Their main criticism of the 2004 amendments were the Imperative Mandate provisions and the apparent unworkable divisions of power between the Office of the President and the Parliament, divisions that often brought the two into conflict and at odds to each other, divisions that made government in Ukraine unworkable.  PACE was not opposed to the transition of power from the President to the Parliament.  In fact it was in favour of the proposed shift.

In 2007 PACE's Explanatory Report called on Ukraine to adopt a Full Parliamentary System in line with other European States and European Standards  The report stated "It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Similar concerns are being expressed today.

One of the criticism levelled at the way in which Ukraine's parliament is structured was centered around the Imperative Mandate provisions which PACE has always considered to be problematic and unworkable.  In its previous reports PACE had called for Ukraine to abandon the restrictive Imperative mandate provisions. Provisons that Ukraine's Constitutional Court had in effect ruled unconstitutional when it ruled that members of parliament had a right to vote as individuals and could break away from the faction that elected them and support the formation of a new governing coalition. It was this ruling that saw the collapse of the Tymoshenko government as members of the previous government crossed the floor to support the formation of a new government lead by Yanukovych's Party of Regions.

The PACE report of 2010 went one step further and recommended that "electoral reform should not only entail the adoption of a new election code but also of a new electoral system, and reaffirms its recommendation that an electoral system be adopted that consists of a proportional system based on open lists and multiple regional constituencies"

Somewhere along the line something was lost in translation.

Viktor Yanukovych who reassured the European Community that it was actively pursuing an European integration agenda had released a policy statement indicating that Ukraine was going to take a further backward step and introduce majoritarian :first-past-the post voting system in electing the parliament and President. Such a police shot ignores the PACE recommendation outline above and if implemented would see the dynamics of Ukraine take a turn for the worst.  No longer would Parliament be representative of the people of Ukraine. the party that was able to secure the most votes in any election would win.  Even of that Party did not represent a majority of the electorate.

One of the criticism of the majoritarian "first-past-the-post" voting system is in its name. The Majoritarian system does no actually represent a majority but the highest vote. Of course in the past elections the President's Party of Regions has been the highest polling party and presumably that would translate into a sure win for the President's team at the expense of the other parties.  Exactly how this new policy which runs contrary to the PACE recommendations will play out is dependent on the detail of its implementation.

Yanukovych is not the only one that has considered and recommended that Ukraine abandon the democratic proportional voting system.  Ukraine's previous President Viktor Yushchenko also tried to implement such a policy in his model reform.  A model that was rightly rejected by Ukraine's parliament at the time.

First-past-the-post voting   is outdated and undemocratic. It was designed in the 8tth century at a time when voters could not read or write. In most parts of the world it has already been replaced. Britain is in the processes of abandoning it, Canada earlier on tried to replace it and the USA still uses it.  It is widely open to manipulation and the main tactic is to run  candidates that hold similar policies to that of your main opposition., dividing their support and in the process reducing their prime vote.  As long as the opposition remain divided and your party united you hope to come out on top and have the highest vote.  The highest vote does not translate into the majority vote.  You can be elected with as low as 34% of the vote so long as your opponents do not get more then you,  they could have 32% and would lose out.

This is the problem Ukraine now faces in its local government elections due to be held on October 31.

Countries like Australia recognised the problem associated with first-past-the-post voting  were more often than not the party elected is opposed by more people then who support them.  In Australia they implemented what was referred to as Preferential voting or Instant Run-Off voting in the United States.  Organisation such as Fair vote are advocating adopting such a system in the United States,  It is a system that guarantees that the person elected has the support of the majority of the electorate. It is a system that Ukraine should also consider adopting and it can be used in multi=member proportional representation ballots where it is referred to by the name "Single transferable vote" which is what is used to elect the Scottish Local government councils

A model system that would meet the requirements an recommendation outlined in the PACE 2010 report.

Instead of introducing first past-the-post voting to elect Ukraine's Parliament Ukraine could establish 50 local electorates of roughly equal size in terms of the number of constituents with each electorate electing nine members of parliament using a single transferable proportional voting system and quota of 10% to elect representatives to Ukraine's Parliamentary body.

Such a system would be fair, equitable and representative of Ukraine’s diverse community without implementing a undemocratic voting system. No one party would have an unfair advantage.

In establishing local electorates and open lists the nature of politics will change in Ukraine.  Representatives would be held accountable to the electorate and members of parliament will be engaged with the community. 


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Wednesday, October 06, 2010

Notes: On the PACE of Democratic Reform

I would not hold out much hope coming out of PACE.  They have in the past seriously compromised their position and in doing so have contributed to much of the instability and situation facing Ukraine today. (Most notably was their silence on the abuse and violation of Ukraine's Constitutional order in 2007 when Yushchenko illegally interfered with the independence of the Courts to prevent them from overturning his attack on Ukrainian democracy and the dismissal of Ukraine previous parliament)

Much of what PACE has stated is worthy of serious consideration BUT will PACE follow through with these issues or will they like last time turn a blind eye top the misuse and abuse of authority.


Other issues they need to serious consider but not mentioned is the need for the EU to free up visa restrictions imposed on Ukraine (A closer and integrated association with the EU is long overdue,

Freeing up the Visa requirements is fundamental to building a closer relationship between the EU and Ukraine the other issue they should implement is the drafting of a model constitution that they think should be used as a precondition for consideration of EU membership.  Such a model could also be used for existing member states to reflect on when they pursue constitutional reform and standardisation of EU laws and regulations.


With that in mind the following points are of interest and worth noting. (Read into them what you will)


2. The Assembly reiterates that the only manner in which lasting political stability can be ensured is through constitutional changes that establish a clear separation of powers, as well as a proper system of checks and balances between and within the executive, legislative and judicial branches of power.

3. Noting the concerns expressed with regard to the concentration of power by the new authorities in Ukraine, the Assembly considers that the consolidation of power by a newly established administration is understandable, and in many cases even desirable, but warns that such consolidation should not lead to the monopolisation of power by a single political force, as this would undermine the democratic development of the country.

...


7. The different areas that are covered by the recent reform initiative have already been extensively addressed by the Assembly in previous resolutions dealing with Ukraine. Reaffirming its position on these reforms, the Assembly, with regard in particular to:

7.1. Electoral reform:

...
7.1.2. considers that electoral reform should not only entail the adoption of a new election code but also of a new electoral system, and reaffirms its recommendation that an electoral system be adopted that consists of a proportional system based on open lists and multiple regional constituencies;
...
7.3. Reform of the justice system:

7.3.1. considers that the reform of the judiciary and justice system is essential for the consolidation of the rule of law in Ukraine and welcomes the priority given by the authorities to these reforms;


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Parliamentary Assembly of the Council of Europe: The functioning of democratic institutions in Ukraine

Report1

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Co-rapporteurs: Mrs Renate WOHLWEND, Liechtenstein, Group of the European People's Party, and MrsMailis REPS, Estonia, Alliance of Liberals and Democrats for Europe


Summary

The Monitoring Committee welcomes the increase in legislative activity in Ukraine in the wake of the 2010 Presidential election, and especially the priority given by the new authorities to honouring Ukraine’s remaining accession commitments. However, the committee is concerned that the current relative stability is fragile, as the underlying systemic causes of the instability that has plagued the country in recent years have not been addressed. Moreover, it is concerned that the hasty manner in which the authorities are implementing the reforms could negatively affect respect for proper democratic principles and, ultimately, the quality of the reforms themselves.

In support of the efforts of the authorities to honour Ukraine’s remaining accession commitments, the committee has outlined a series of recommendations for the reforms, which in its view are crucial to ensure that the reforms will meet European standards and principles.In that respect, the committee stressed that it will not be possible for Ukraine to implement the reforms necessary for the country to fulfil its accession commitments without first reforming the constitution. It therefore calls upon the authorities and opposition to jointly implement a constitutional reform package that addresses the current constitutional shortcomings.

Lastly, the committee expresses its concern about the increasing number of allegations that democratic freedoms, such as freedom of assembly, freedom of expression and freedom of the media, have come under pressure in recent months. It therefore calls upon the authorities to investigate all allegations of infringements of rights and freedoms and remedy any violations found, and stresses that any regression in the respect for or protection of democratic freedoms and rights would be unacceptable.

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Tuesday, October 05, 2010

Perpetual Constitutional Crisis The chorus begins to sing louder

Yulia Tymoshenko has joined what has become a chorus of voices calling for spill of all positions and the holding of fresh Parliamentary and Presidential elections in the wake of the Constitutional Court's October 1 ruling.
 She joins the Rukh Party and the Socialist party of Ukraine in calling for a renewal  both  tiers of government.

The Constitutional Courts ruling has left many questions unanswered, the most important being how do you reconcile the mandate given to the Parliament an the President  given that both bodies of power were elected under a different system of government and a different Constitutional authority.  Ukrainian's voted them into office on the understanding that the divisions of power were different than what they are today.

This leaves Ukraine with only two valid options .

1. Reinstate the 2004 amendments nn pursue reform though proper process o consultation an reviie or
2. Declare a spill in the Office of the president and members of Parliament and hold fresh Parliamentary and Presidential elections in March 2011.

The question is will Yanukovych have teh courage and convcitions to put matters right and if need be face the people of Ukraine in a fresh presidnetial ballot.  Yushchenko when presented with a similar option back in 2007 refused to renew his mandate. The other issue of course is if fresh presidnetiaal elections are held and  Yanukovych won he would be deamed to have served two terms and as such could not run for a further term of office.  This leaves option one the front door approach.   Reinstate the 2004 amendments and then seek further amendments to Ukraine's Constitution.




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Rukh calls for snap parliamentary and presidential elections

Rukh calls for snap parliamentary and presidential elections
The People's Movement of Ukraine party has called for holding new parliamentary and presidential elections simultaneously in March 2007.

 Interfax-Ukraine  Source: Kyiv Post
The People's Movement of Ukraine (Rukh) in the wake of the Constitutional Court ruling on political reform, has called for snap parliamentary and presidential elections, as well as the mobilization of the Ukrainian people.

"The only way out of this situation is to 'reboot' the authorities, and this means holding snap parliamentary and presidential elections. The voters who went to elections in 2007 and 2010 gave a mandate for an entirely different set of powers to the representatives of the authorities," reads a statement by Rukh that was posted on the Web site of the party.

In addition, the party said that all members of the Constitutional Court who voted for this "contract ruling" should be dismissed.

The authors of the document also added that the constitution "henceforth is fully unprotected," and such a ruling "legally sanctified another step towards the usurpation of power by the team of Yanukovych and Azarov, and the establishment of authoritarian regime."

According to Rukh, the Constitutional Court this called in question the legitimacy of the whole of the Ukrainian government.

"The present situation requires an urgent response and the full mobilization of the Ukrainian people," reads the statement.


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Monday, October 04, 2010

Constitutional Crisis: Moroz on CC ruling

CC ruling provokes snap parliamentary and presidential elections

CC ruling repealing 2004 constitutional amendments should be followed by snap parliamentary and presidential elections, honorary leader of the Socialist party Olexandr Moroz says, his press service reported Oct. 3.


The big question now is which way Ukraine will take, Moroz said. “This depends on how democratic our new president is and on VR lawmakers who will have to find the way out of the resulting legal stalemate, Moroz continued.

If the CC ruling is considered legal, there is need to hold snap parliamentary and presidential elections.

However, the constitution does not envisage such procedure, and therefore, there will be manipulation of constitutional provisions, Moroz went on.

Viktor Yanukovych was elected to office under the 2004 Constitution which detailed his authority.

Verkhovna Rada was also elected in 2007 for 5 years and is supposed to have the authority envisaged by the 2004 Constitution. Under the new Constitution, lawmakers are elected for 4 years, Moroz noted.

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Saturday, October 02, 2010

Constitutional Anarchy

Ukraine, following the recent ruling of Ukraine's Constitutional Court which struck down the 2004 amendments to Ukraine's Constitution, is now facing a major Constitutional Crisis with the country in a state of limbo and uncertainty.  Ukraine's Constitution and laws are not worth the paper they are printed on. Rule of Law no longer exists. Public confidence in the democratic process completely destroyed.  Yet Ukraine will survive.  It is a country that has learnt to exist without government or democratic rule of law, It is business as usual. Its political leaders having failed to restore civility and rational governance.

I'ts loss of confidence stated soon after the election of Victor Yushchenko and the failure of Yushchenko to support the formation of a governing coalition follwoing the 2006 Parliamentary election.  having lost sup;port and power yushchenko systematically undermined Ukraine's Parliamentary government destabilising the system of governance and with it his own credibility. In 2010, Yushchenko had lost the confidence of the Ukrainian people and was removed from office having only received 5% support in the January Presidential elections.

His main opponent and former Prime Minister, Viktor Yanukovych won the Presidential election and in a final act of retribution has further demolished what confidence and support remained for a proper governing proces.

The Constitutional court has been inconsistent in its own position.  Previous rulings of the Court have upheld provisions of Ukraine's Constitution as amended in 2004.  Yushchenko himself had acted to interfere with the independence of the Courts.  In 2010 Yanukovych has done more or less the same.  He replaced members of the Constitutional court with his own nominees and moved quickly to cancel the reforms that he himself had previously advocated and support.

Ukraine's Constitution needs to be thrown out and rewritten.  It is so tainted that any attempt to reform it by amendment would not be acceptable. It needs to go back to the very start and rethink what it is they really want, need and value the most.

Nearly all political commentators have expressed the same opinion but the problem still remains the unanswered question.  Does Ukraine continue t maintain a central US/Soviet sty; presidential authority or does it embrace democratic Parliamentary system of Governance in line with other European States.

The opposition lead by Yulia Tymoshenko appears to be ineffective and incapable of mounting an argument against the swell and tide of public discourse calling for a stronger centralised presidential system, There has been some talk of rejection of the Constitutional Court's ruling there is little that can be done as the Courts findings are final and can not be appealed.

There is also no sign of protest, no revolution, rebellion or peoples uprising, .  

Ukrainians just will not come out and defend democracy.  Yhey have been betrayed by their leaders in the past and they no longer see any benefit or opportunity to influence the outcome. They placed their trust in Yushchenko only to have that trust betrayed.

The "West:" are also unlikely to be able to influence the events that have just unfolded, they themselves were compromised by their past in action when they remained silent as Ukraine's past president, Victor Yushenko, demonstrated his contempt for democratic fovernment, Ukraine's Constitution and the concept of rule of law.  Yushchenko's actionsdismisisng Ukraine perviousb parliamnet  back in 2007 caused seven months of political instability and civil unrest and only served to remove all confidence in the political process.  Ukrainians want nothing to do with colored revolutions. They have been to the polls too many times and nothing has changed. only more hardship, more instability and greater division..

Ukraine is now paying the price of Yushchenko's betrayal. Democracy and rule of law no longer exist, if it ever did exist. There is no respect or confidence in the political process all they can do is hope and pray that the President will act reasonably and in other is best interest.  There is no certainty of outcome. The system and the courts have failed Ukraine.Its past president have failed Ukraine. Ukraine is in state of perpetual  anarchy where only the Presidential decree remains.

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Call to the "West" falls on deaf ears as they remain silent

The West to a large extent also shares responsibility for the railing if the Ukrainian government. They stood by and watch democracy in Ukraine being rapped and said nothing.. 
 
In April 2007 Yushchenko unconstitutionally and illegally interfered with the independence of Ukraine;s Constitutional Court in order to prevent the court from ruling against his decision to dismiss Ukraine's democratically elected Parliament. Yanukovych at the time was prime minister, his term of office was cut short by a President who showed no respect for rule of law or democracy. 
 
The "West", and the Venice Commission in particular, stood by and remained silent was democracy and rule of law was being violated. They have no credibility or moral right to speak out against the violations have been complicit it its abuse and misuse previously.

Yes they should speak out but they should have also spoken out back in 2007.  If they stood up now  and said they got it wrong back in 2007 "they should have spoken out against the misuse and abuse by  Ukraine's President Victor Yushchenko". If they are prepared to admit to their own failings to the Ukrainian people may not speaking out,  then maybe they would regain  some credibility in criticising the events that are now unfolding.

What the "West" can do now is call for Ukraine go back to the negotiating table and to adopt a full Parliamentary model. If Ukraine wants to join the west then it should adopt European models and European values. If need be the Venice  commission could submit a draft constitution document that could be used as the bases of establishing a new democratic order and new constitution in Ukraine. A system that they, and hopefully others, can respect and accept. A system that remains committed to the ideals of democracy and governance by the peoples elected representatives. 
 

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The paradoxical question of legitimacy and mandate

"Ukraine's 1996 constitution was hailed around the world at the time as 'the most democratic' in the former Soviet Union"

A presidential system by its design autocratic not democratic.

Latvia and Estonia have much more democratic constitutions then Ukraine's. Ukraine's biggest mistake was not adopting a European Parliamentary model from day one. The struggle to democratise Ukraine has been debated for decades. Proposals to change the system back in 2003 failed by five votes thanks to Yushchenko who has consistently opposed democracy in Ukraine.

The only reason the 2004 amendments failed was due to Yushchenko and his ongoing misuse and abuse of office. His actions in 2007 dismissing Ukraine's Parliament had undermined political stability and confidence in the political process. Yanukovych's consolidation of power has only brought his office into disrepute as previously Yanukovych, when he as prime-minister advocated the parliamentary system. Such hypocrisy indicates a lack of conviction leaving him wide open to the allegation of opportunism seeking power for powers sake. The determination of the Constitutional Court will only fuel further unrest and disillusionment in the democratic process. Both Yushchenko and Yanukovych have successivley destroyed democracy in Ukraine.

Yanukovych, like Yushchenko, was elected on the understanding that power and government was held and determined by the peoples democratically elected parliament.

The change in the system forced by the Court has negated the President and Parliament's mandate.

There is no other alternative.

Ukraine must now hold fresh Parliamentary and presidential elections.

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Friday, October 01, 2010

Back to the past - The tale of the two Viktors

Ukraine has just taken a backward step.  A step away from democratic rule of law  and a return of presidential autocracy.  A step that Viktor Yushchenko advocated and by his actions preordained

Today the Constitutional Court of Ukraine ruled invalid the amendments to Ukraine's Constitution  that were agreed to as part of a peace deal in settlement of the "Orange Revolution" stand off in December 2004.

The amendments agreed to in haste followed years of negotiation and efforts for Ukraine to make the transition away from a Soviet Presidential system and towards a European style democratic Parliamentary system .

Ukraine previous President Viktor Yushchenko has consistently undermined the stability and success of Ukraine's Parliamentary system.  A system that saw Yanukovych elected Prime-minister in 2006 following Yushchenko failure to support the formation of a orange governing coalition.

Yanukovych was at the time a supporter of the Constitutional provision that was until Yushchenko acted unconstitutionally to dismiss the previous parliament going as far as interfering with the composition and independence of Ukraine's constitutional Court to prevent the Court from ruling against his decree.

Yushchenko's actions caused seven months of political and civil unrest and the process destroying any hope for respect in the democratic process.  Yushchenko had sold out Ukraine and in the process has set in train the events that are now unfolding.

Yanukovych having been elected President  in January with a winning margin of just 3 percent has quickly gone about securing power and control over every aspect of Ukraine's Government.

In all fairness Yanukovych had the right to remain Prime Minister but Yushchenko removed that right and with it and chance for long term democratic development.


Yanukovych and his party should have taken steps to amend the Constitution not destroy it.
The reforms adopted in 2004 were a step in the right direction. Throwing them out is like throwing the baby out with the bath water.

Yanukovych and his party should have taken steps to amend the Constitution not destroy it.

Yanukovych has now shot himself in the foot, He no longer has the right to claim he was elected under the authority of Ukraine's Constitution. The people of Ukraine voted for him on the understanding that the President had limited power. Now that he has assumed more power then the people of Ukraine bestowed on him it make him an illegitimate president.

Democracy no longer exists in Ukraine.  Destroyed by the two Victors.  Yushchenko and Yanukovych.  





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Constitution of Ukraine Pre-2005 (Current)


Constitution of Ukraine

Pre 2005 - Current  (re-activated by ruling of the Constitutional Court published on 1 October 2010)

Chapter I

General Principles

Article 1. Ukraine is a sovereign and independent, democratic, social, law-based state.

Article 2. The sovereignty of Ukraine extends throughout its entire territory.Ukraine is a unitary state.
The
territory of Ukraine
within its present border is indivisible and inviolable.


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Friday, September 24, 2010

Changing Court.


Stacked Justice
President Viktor Yanukovych (second from left) shakes hands in this Aug. 17 photograph with close ally Volodymyr Kolesnichenko, head of Ukraine’s High Council of Justice, which appoints judges. Anatoly Golovin, also a close presidential ally who heads Ukraine’s Constitutional Court, is at left. Oleksandr Pasaniuk, head of the High Administrative Court, is at right. All three are recent appointees. (Mykhailo Markiv)

Stacked Justice

Source: Kyiv Post - Graham Stack, Peter Byrne and Yuriy Onyshkiv
Ukrainians will almost certainly get major changes to the Constitution, whether they like it or not.

To change the Constitution in a way that gives him and future presidents more power, President Viktor Yanukovych will benefit greatly from a friendly Constitutional Court that ratifies any new document.

But have his supporters stacked the 18-member judicial body with Party of Regions supporters to ensure that the court sanctions whatever the Presidential Administration wants?

That’s what it looks like after four new justices were sworn in by parliament on Sept. 21, only days after Ukraine’s Congress of Judges dismissed their predecessors who may have been obstacles to strengthening presidential power.

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Ukraine on the precipice: Democracy or autocracy

Ukraine's Constitutional Court will commence consideration of what will be one its most significant decisions in Ukraine's history. It will decide if Ukraine winds back the clock and restore a presidential autocratic state.

One of the main outcomes of the 2004 "Orange Revolution" was Constitutional reform negotiated as part of a settlement of the civil unrest and crisis facing Ukraine. The constitutional changes saw Ukraine remove power from the central presidential authority and shift more towards a European style Parliamentary democracy.

The Presidential system of authority has been the main problem facing Ukraine's development since its declaration of independence. Unlike other former soviet states such as Estonia and Latvia Ukraine did not adopt a parliamentary model of governance. It instead kept the soviet/US style presidential system. A system that has consistently failed Ukraine.

In order to understand Ukraine;'s current situation you need to look back over the last five years of Viktor Yushchenko's Presidency and the events that have unfolded since the Orange Revolution of late 2004.
Ukraine move towards a more democratic form of government was undermined by the previous President Victor Yushchenko who proved to the worst president. Elected to office with the support of 52% of the people Yushchenko divided Ukraine and betrayed all those who had invested trust and hope for something better.

Oleksandr Moroz was the main driving force for democratic reform, He stood against Viktor Yushchenko in the 2004 Presidential first round of election and lost coming in third place. Moroz then decided to support Viktor Yushchenko election. Without the support of Moroz and the Socialist Party Yushchenko would not have won the disputed second round ballot and the "Orange revolution" would have failed .

Yushchenko's fall from grace came when he and his party "Our Ukraine" refused to support the formation of a governing Orange coalition following the 2006 Parliamentary elections. Yushchenko and "Our Ukraine" attacked their coalition partner, the Socialist Party of Ukraine. lead Oleksandr Moroz. Yushchenko refused to share power and appoint Moroz and the Socialists to the position of Parliamentary speaker. A three months stand-off ensured as Yushchenko's party tried to negotiate the formation of an altrenative governing coalition with the oppsoition Party of Regions.

In order to avoid a Constitutional crisis and new parliamentary election the Socialist Party,  much ro Yushchenko's dislike, managed to secure the agreement to form a new coalition between Party of Regions lead Viktor Yanukovych (Yushchenko's main opponent in the 2004 Presidential elections) and the Communist Party of Ukraine. Yanukovych was subsequently elected Prime minister

The inevitable stand-off between the democratically elected parliament and the office of president continued to generate conflict.

In April 2007 Viktor Yushchenko, in a grab for power, unconstitutionally dismissed Ukraine's parliament Yushchenko in May 2007 then illegally interfered with the independence of Ukraine's Constitutional Court in order to prevent the court from ruling against his degree dismissing the Parliament Yushchenko actions caused a constitutional political crisis and seven months of civil unrest that Ukraine to edge of collapse.

Refusing to also face the people Yushchenko forced the state to hold new parliamentary election. The outcome of the election had hardly changed and Ukraine was just as divided as it had been. The Socialist Party's had secured 2.86% falling shot by 0.14% of the three percent threshold. The remaining coalition partners Our Ukraine and Yulia Tymoshenko block held on to slender majority of parliamentary by one seat.
This created an unstable government and allowed factions within the Presidential alliance to undermine the newly elected parliamentary government lead Yulia Tymoshenko.

The infighting and division continued with Yushchenko and his coalition partners in a constant state of disunity and disagreement.

In August 2008 Viktor Yushchenko unsucessfully tried to engage Ukraine in a regional war supporting the US backed Georgian government in a conflict with Russia. Ukraine's political powers refused to support Yushchenko which, had he won, could have triggered an even greater conflict in the region and possibly a third world war.

Tymoshenko's hold on government was even more tenuous and she was forced to negotiate support from the 20 member minority party lead by Volodymyr Lytvyn in order to regain some form of stability, Vlodymr Lytvyn was offered the speakers position in return, a position previously denied Oleksandr Moroz and the Socialist Party.

Disunity is death in politics Yushchenko support had evaporated.

In January 2010 Viktor Yushchenko received only 5% support in his bid for re-election, losing out in the first round forcing a run-off election between the two highest candidates, Viktor Yanukovych Yulia Tymoshenko. Yanukovych won the Presidential second round ballot by a margin of 3%.

Yushchenko effectively killed off democracuy in Ukraine, his term of office being a complete disaster.

Since becoming President Viktor Yanukovych has moved to strengthen presidential authority and his hold over Ukraine's Parliament .

Soon after taking office, in what was seen by many as a Presidential coup, Yanukovich with the support of a breakaway faction Yushchenko's party Our Ukraine removed Yulia Tymoshenko from office. Yanukovych control over the parliament as further enhanced when he managed to secure a controversial ruling from Ukraine's Constitutional court that allowed members of Parliament breakaway from the party elected them and support the formation of a new government.

The proposals now before the Constitutional Court if supported would nullify the democratic reforms made back in 2004 and return power back into a Presidential autocarcy. Completely obliterating all reforms that were instituted since the 2004 Orange Revolution as though it never existed.

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Thursday, August 12, 2010

Constitutional Change a vexing question

Ukraine has to a degree restored  political stability following the defeat and ousting of Victor Yushchenko. With this change has also come a change in political direction.

In 2008/9 Ukraine was in debate and discussion as to how Ukraine would be best served by implementing Constitutional reform.

There was at the time concern about the then pending Presidential election. One proposal was to remove power from the President and let Ukraine's head of state by a constitutional Two-thirds majority parliamentary vote as is the case in Estonia, Latvia and Moldavia. The discussions and proposals were derailed primarily by the President Viktor Yushchenko who's on standing in Ukraine had collapsed from a high of 52% in 2004 to less then 5% (below below 2%). Ukraine as a result retained the presidential system and spent over 200 million dollars in conducting a Presidential election which was held in January/February this year.

Soon after taking Office Ukraine's newly elected president Viktor Yanukovych set up implementing reforms and consolidating his power and hold over Ukraine. Many of the changes were welcomed and help restore balance and stability some have been controversial, the most being the deliberation and ruling of Ukraine's constitutional court that overturned Ukraine "Imperative mandate" provision in Ukraine's Constitution.

Yanukovych, having previously advocated a parliamentary system is now seeking to restore Presidential authority and has advocated the cancellation of the 2004 Constitutional Amendments. According to Ukraine's Constitution the Constitution can only be amended with the support of two-thirds majority of the Parliament.

The only requirement for a referendum is when proposals are made to change the provision of Chapter I — "General Principles," Chapter III — "Elections. Referendum," and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine" even then it still requires the support of two-thirds majority of the Parliament.

Unless Yanukovych can secure the support of the existing Parliament the only way he can legally amend the Constitution is to hold fresh Parliamentary election and campaign for support for his visions and polices during the parliamentary elections. The polls indicate the Yanukovych''s Party of Region will secure a majority of a new parliament in its own right but will still require the support of Serge Tigipko "Strong Ukraine" in order to secure a constitutional majority. Serge Tigipko has indicated that his vote is up for sale and he would support the restoration of Presidential authority. If Ukraine adoption Yanukovych/Yushchenko's policy to restore Presidential authority it would be a backward step away from democracy and a way from Europe.

Leonid Kravchuk, Ukraine's first President, has raised this issue in an interview published in The Day

Ukraine is very much at the cross roads an issues of economic reform an constitutional rights are once at risk.

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Saturday, July 03, 2010

Selling American "Independence"

US Secretary of State Hillary Clinton, on the eve of the anniversary of US independence, preaches to the Students at the Kyiv Polytechnic University.

YouTube video of Clinton's townhall meeting in Kyiv.

Transcript of remarks following meeting with Yanukovych

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Saturday, June 26, 2010

NUNS No More: Causing a Constitutional Quandary

Our Ukraine - Peoples Self Defence (NUNS) to be dissolved following the demise of Yushchenko's leadership.

Ukrainian News has been reporting large number of defections from their Parliamentary representatives to the governing coalition camp prompting a call for the parliamentary faction to be dissolved.

If NUNS does dissolve, as expected, it will raise further concerns about Ukraine's Constitutional 'Imperative mandate' provisions (Article 81) which require members of parliament to remain a member of the parliamentary faction that appointed them. If the faction ceases to exist the provisions of Article 81 also fall.

What impact this could have on the Constitutional validity of the current parliament is uncertain. The Constitutional Court having had a bet each way in its recent past rulings.

Update. National Radio Ukraine is reporting the formal dissolution of the NUNS faction.

This recent announcement could give rise for Yanukovych to call fro fresh parliamentary elections in order to  restore constitutional order.  If fresh elections here held this month Party of Regions would secure an absolute majority in its on right and a constitutional majority in coalition with Sergei Tipiko's Strong Ukraine faction


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Friday, June 04, 2010

Shifting fortunes:Tymoshenko moves into third place

A public opinion poll published by Research and Branding shows Yulia Tymoshenko sliding down to third place with Yanukovych remaining preferred President.  100 Days into the term of the new president Yanukovych remains in the lead with 45.5% support followed by Sergie Tipikpko on 13.0% and Tymoshenko with just over 10%. Ex-President Viktor Yushchenko does not even get a mention with all other possible contenders rating less the 5%.

Whilst a majority of Ukrainians are not happy with their life style or the state of the economy most Ukrainians generally support the new government on 45% approval and 40% disapprove, compared to the oppositions ratings of 12.6% approval to just over 70% disapproval.

The prime-minister Mykola Azarov has a 48.4% approval rating against Tymoshenko's 18.8%.

If Parliamentary elections were held this weekend Party of Regions would be elected to office with an absolute majority.


Party/Bloc Percentage Seats
Party of Regions 43.30% 274
Strong Ukraine 12.40% 78
Bloc Tymoshenko 10.50% 66
Front for Change 5.00% 32
Svoboda 1.90%
Communist Party of Ukraine 1.80%
Civil Position 1.60%
Lytvyn Bloc 0.80%
Our Ukraine 0.70%
Other 0.40%
Against All 7.10%
Will not vote 6.60%
Do not know 7.90%
Sum 100.00% 450

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Friday, May 07, 2010

British Poll Chaos a lesson for Ukraine

Britain faces a hung parliament as Ukraine looks on.

Results of the 2010 British Parliament

The Conservative Part received the 36.1% Labour 29.2% and the Liberal Democratic Party close behind in third place with 22% Under Britain's discredited first-past-the post single member electorates system the part with then highest vote wins the seat. But the distribution of representative seats is not proportional. Electoral reform will be high on the British agenda with a push for the adoption of a preferential proportional representation system along the line of other European states. The changes in Britain are a lesson and a warning to Ukraine to not adopt a first-past-the-post system.

  1. National Results after 649 of 650

UK - National seats at a glance

  • Prediction
  • 326 to win
Political Party Seats Change
Conservative
306 +97
Labour
258 -91
Liberal Democrat
57 -5
Scottish National Party
6 0
Plaid Cymru
3 +1
Others
19 -2

Share

  1. CON 36.1%
  2. LAB 29.0%
  3. LD 23.0%
  4. Others 11.9%

Swing

5% From LAB to CON

Full UK Scoreboard

Party Seats Gain Loss Net Votes % +/-%
Conservative 306 100 3 +97 10,706,647 36.1 +3.8
Labour 258 3 94 -91 8,604,358 29.0 -6.2
Liberal Democrat 57 8 13 -5 6,827,938 23.0 +1.0
Democratic Unionist Party 8 0 1 -1 168,216 0.6 -0.3
Scottish National Party 6 0 0 0 491,386 1.7 +0.1
Sinn Fein 5 0 0 0 171,942 0.6 -0.1
Plaid Cymru 3 1 0 +1 165,394 0.6 -0.1
Social Democratic & Labour Party 3 0 0 0 110,970 0.4 -0.1
Green 1 1 0 +1 285,616 1.0 -0.1
Alliance Party 1 1 0 +1 42,762 0.1 +0.0
UK Independence Party 0 0 0 0 917,832 3.1 +0.9
British National Party 0 0 0 0 563,743 1.9 +1.2
Ulster Conservatives and Unionists - New Force 0 0 1 -1 102,361 0.3 -0.1
English Democrats 0 0 0 0 64,826 0.2 +0.2
Respect-Unity Coalition 0 0 1 -1 33,251 0.1 -0.1
Traditional Unionist Voice 0 0 0 0 26,300 0.1
Christian Party 0 0 0 0 18,623 0.1
Independent Community and Health Concern 0 0 1 -1 16,150 0.1 +0.0
Trade Unionist and Socialist Coalition 0 0 0 0 12,275 0.0
Scottish Socialist Party 0 0 0 0 3,157 0.0 -0.1
Others 1 1 1 0 319,891 1.1 0.0
Turnout 29,653,638 65.1 4.0

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Thursday, April 29, 2010

Stanik Resigns: The day after

Ukraine's President Viktor Yanukovych has accepted Syuzanna Stanik's resignation from the Constitutional Court one day following her reappointment.  The reasons and details of Stanik's decision to resign have not been made public. Her resignation avoid the messy need to cancel or reorganise the Courts membership which was over quota as a result of Stanik's reappointment.   The questions surrounding Yushchenko's allegation still remain unanswered  If Stanik has a case to answer then she should face prosecution, if on the other hand she is innocent then Yushchenko should be held account for his actions back in 2007 when he summarily dismissed three Constitutional Court Judges in order to prevent the court from ruling against his decree dismissing Ukraine's previous Parliament.  the truth of this matter may never be known.

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Wednesday, April 28, 2010

Justice restored: Stanik reappointed to Constitutional Court

Ukraine's President,Viktor Yanukovych, has passed a decree reinstating the appointment of Ms Susan Stanik to Ukraine's Constitutional Court.

Yanukovych's decree re-instating Ms Stanik to the bench has righted a wrong and injustice undertaken by Ukraine's former president.

Update: Stanik resigns.

Ms  Stanik along with two other judges were summarily dismissed by Ukraine's former President, Viktor Yushchenko, in May 2007.  The actions of  Yushchenko were designed to prevent the Constitutional Court from ruling against his decree of April 2, 2007 dismissing Ukraine's previous Parliament.

Yushchenko's dismissal of the three Judges was in direct breach of Ukraine's Constitution in that by dismissing the three judges Yushchenko had interfered with the independence of Ukraine's Judiciary.


Viktor Yushchenko as President had no authority to dismiss members of the Constitutional Court.

Yushchenko speciously alleged at the time that the judges were dismissed for a breach of oath.  In doing so Yushchenko denied all three the right of natural justice and their right to face the allegations made against them though a proper judicial process

Two of the judges dismissed later resigned under pressure and Susan Stanik stood her ground and challenged the President's actions in Ukraine's Administrative court of Appeal winning her appeal.

Vikor Yushchenko was ordered by the administrative court of appeal to reinstate Susan Stanik as the Court found that Yushchenko''s actions were illegal.  Yushchenko responded by extraordinarily  rescinding the decree made by Ukraine's former President, Leonid Kuchma, that originally appointed Susan Stanik as a Constitutional Judge. An act that in itself was highly questionable and demonstrated absolute contempt undermining public confidence in the Judicial process.

Under Ukraine's constitution the President holds absolute immunity against prosecution and the only means of impeachment is with tech support of 300 or more members of Ukraine's parliamentary assembly.

Any allegation of misconduct and breach of oath of a Judge should have been first considered by the Council of Justice, who on finding that their existed a case to be answered, would then recommend the dismissal and prosecution of a Judge. The Parliament would then need to consent to the matter being brought to trial.

Viktor Yushchenko, as President and Guardian of Ukraine's Constitution, breached his oath by failing to uphold this very important Constitutional provision and division of powers between the executive and the judiciary.  The Constitutional Court never ruled on the question of constitutionality of Yushchenko's actions. 

In any western democracy the president would have been facing impeachment for such actions.

The authority of the President to dismiss Ukraine's parliament was challenged in Ukraine's Constitutional Court amidst concern that the President's actions were unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.  Yushchenko's actions had caused seven months of political and civil unrest.




On April 19, 2007 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides. ”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

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Tuesday, April 13, 2010

Yushchenko's poll slide to oblivion

The latest Public Opinion poll conducted by Kyiv International Institute of Sociology (KIIS) lists Ukraine's former President, Viktor Yushchenko, with less then 1.6% support.  If fresh parliamentary elections were held Yushchenko's Our Ukraine would lose representation in Ukraine's parliament.

If the results of the poll were translated into parliamentary seats only five parties representing 64.7% of the electorate would cross the 3% representation threshold.  - Party of Regions would win an absolute majority with 253 seats and a constitutional majority (>300) with the support of  Sergei Tigipko's Strong Ukraine.

Yulia Tymoshenko would win only 95 seats, Arsenyi Yatsenyuk 30 and the Communist Party of Ukraine 21 seats.

Parliamentary speaker Volodymir Lytvyn would lose representation along with Yushchenko's Our Ukraine.

Over 13% of the electorate are undecided.

Party Leader Percentage Seats
Party of Regions Viktor Yanukovych 36.40% 253
Bloc Yulia Tymoshenko Yulia Tymoshenko 13.60% 95
Strong Ukraine Sergei Tigipko 7.30% 51
Front for change Arsenyi Yatsenyuk 4.30% 30
Communist Party of Ukraine Petro Symenko 3.10% 21
Civil Initiative Anatolii Hrytsenko 1.60%
Svoboda Party Oleh Tiahnybok 1.60%
Our Ukraine Viktor Yushchenko 1.40%
Bloc Lytvyn Volodymyr Lytvyn 1.30%
Vitalii Klychko Bloc Vitalii Klychko 1.00%
Yedynyi Tsentr Party  Viktor Baloha 0.20%
Socialist Party Oleksandr Moroz 0.20%
Others
0.20%
Against All
6.30%
Will not vote
8.40%
Undecided
13.10%
sum
100.00% 450

Kyiv International Institute of Sociology polled 1,226 people aged 18 and above in all regions of Ukraine from March 19 to 28. The statistical error does not exceed 2.9%.

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Monday, April 12, 2010

Why and how Ukraine’s democracy is declining

Yanukovych’s revenge: 

KyivPost | Andreas Umland

Largely unnoticed in the West, Ukraine’s new president, Viktor Yanukovych, brought to power an illegitimate government in March. Though being installed via a seemingly orderly parliamentary procedure, the current Ukrainian cabinet headed by Prime Minister Mykola Azarov has no proper popular mandate. How did that come about?

Ukraine has a proportional electoral system with closed lists. This means that voters do not elect individual candidates, but can only approve of pre-determined lists presented to them by various political parties or blocs. The members of the Ukrainian parliament, the Verkhovna Rada, become deputies only in so far as they are included in their bloc’s or party’s lists the composition of which is beyond the reach of voters. The electoral success and resulting faction size of parties or blocs in parliament is thus mainly determined by the attractiveness of their ideologies, and charisma of their speakers.

Individual party list members play little role in Ukrainian parliamentary elections, which are contests between large political camps and their more or less magnetic leaders. This is in contrast to majoritarian or mixed electoral systems where the local standing of regional – and not only national – political leaders plays a prominent role in determining the makeup of the national legislature.

For better or worse, Ukraine has abandoned first its early post-Soviet majoritarian and later its mixed electoral systems. It now conducts (except for a 3 percent barrier) purely proportional parliamentary elections in which individual list members, other than a small circle of nationally known party leaders, play little role during the electoral campaigns. Accordingly, Ukraine’s Constitution ascribes to parliament’s factions, and not to members of parliament, a decisive role in the formation of a governmental coalition. A government has to be based on the support of registered parliamentary groups, and cannot be voted into office by individual MPs.

True, such a rule gives excessive power to faction leaders and belittles the role of the deputy as a people’s representative. Yet, the factions’ exclusive role in government coalition formation is consistent with, and follows from, the electoral system.

In so far as voters are not given a chance to express their opinion on individual candidates, the elected deputies have to act first and foremost as faction members. Within proportional electoral systems, it is not them as individuals, but their factions as fixed political collectives recruited from prearranged lists that represent the voters will, in legislature.

In spite of these circumstances, Yanukovych, on March 11, pushed through a government that is based only partly on party-factional support. The three factions that form the current coalition do, by themselves, not have a majority, in the Verkhovna Rada. Yanukovych’s Party of Regions, Ukraine’s Communist Party, and Parliamentary Speaker Volodymyr Lytvyn’s Bloc comprise only 219 of the 450 deputies. Yanukovych’s Party (thought that it has) solved this problem by luring away a number of deputies from its Orange competitors - the Bloc of Yulia Tymoshenko and pro-[Viktor] Yushchenko alliance “Our Ukraine – People’s Self-Defense” - in order to form a government coalition.

This happened in spite of the fact that these two factions represent exactly those political forces which, during the last parliamentary of 2007, stood in open opposition to Yankovych’s Party of Regions. When voters decided to cast their votes for the Tymoshenko Bloc and “Our Ukraine – People’s Self-Defense,” in 2007, they were clearly also voting against Yanukovych’s Party of Regions.


Nevertheless, on March 11, 12 deputies who had become MPs on the tickets of the two Orange blocs signed the coalition agreement that laid the ground for subsequent transfer of almost all executive prerogatives to the Party of Regions. The formerly Orange deputies did so against the expressive will of their initial factions and in manifest disregard of their voters’ mandate.

Party transfers during legislative period, to be sure, are not unusual, in young democracies. They occasionally even happen in consolidated democracies, like the Federal Republic of Germany which has also a proportional electoral system (a partly personalized ne though).

However, in mature democracies, such political transgressions usually concern only isolated MPs who choose to pass from one to another faction, for personal reasons. Therefore, the German basic law, for instance, upholds the MP’s unrestricted “freedom of the mandate,” in spite of the fact that half of the members of the Bundestag are not elected directly, but collectively, on their respective parties’ tickets – much like in Ukraine. The idea that a relatively large group of MPs could be purposefully drawn from one to another party in order to effectively cancel election results is so absurd that it has received little attention from constitutional engineers, and political comparativists, in Western states. Should such consequential change in the political allegiance of numerous deputies happen, the violation of the voters’ will would be so flagrant that it appears a waste of time to seriously consider such a strange and hypothetical case.

In unconsolidated pluralistic states, such things, however, do happen. Moreover, as the pre-history of the Orange Revolution showed, Yanukovych and Company are no democrats. Their poorly disguised falsification of the first two rounds of the 2004 presidential elections, as well as numerous related actions, demonstrated the Party of Regions’ ambivalent relationship to democratic norms. Moreover, Ukraine is not yet a consolidated democracy with a deeply ingrained rule of law. It is a state still in the process of formation, and one of the countries that has, worldwide, suffered most from the financial crisis. Judicial review has started to function in post-Soviet Ukraine, as the Constitutional Court’s intervention during the Orange Revolution showed. Yet, the results of the Constitutional Court’s today review on the new Ukrainian government coalition will hardly solve the current conflict between the political camps, as it did in 2004.

Its latest ruling is a rather strange development in so far as the Constitutional Court did already rule on the issue of whether individual MPs may participate in government coalition building. In its decision of 17 September 2008, the Court ruled that “[…] only those people’s deputies of Ukraine who are members of the deputies factions that form a coalition can enter the ranks of that coalition. The membership of the people’s deputies of Ukraine in these factions underlines the exceptional role of deputies factions in the formation of a coalition of deputies factions.”

In view of this ruling, the current government would appear as not only illegitimate from a democratic point of view, but also as illegal from a juridical standpoint. However, the new ruling renounces the quoted earlier one. It, moreover, puts under question all previous rulings by the Constitutional Court which, presumably, also could be revoked by the Court after a second hearing.

What also follows is an unsettling of the party-electoral system of Ukraine. If elections continue to be held in a purely proportional mode, voters will become unsure what their votes actually imply and will eventually lead to. As voters can only approve of closed party lists, they have no opportunity to punish individual deputies who have renounced the mandate they had received during the previous elections, i.e. who have, in fact, betrayed their voters. Worse, voters of those parties or blocs that suffer most from enticement of their deputies by competing parliamentary factions will ask themselves why they are voting at all. If the deputies whom they delegate to parliament may later be poached by the opposing camp, and switch political sides, it makes little sense to send them to the Verkhovna Rada, in the first place. Today’s renunciation of the Constitutional Court’s decision of September 2008 makes Yanukovych’s Party of Regions a “double-winner”: it can keep its hold on the executive with the help of deserters from other factions while at the same time undermining the electoral base of its political competitors. Democratic elections’ primary function of constituting a transparent link and effective feedback mechanism between the population and government has been diminished.

Ukraine’s decision makers have to understand that only semi-formal observance of democratic rules and merely rhetorical acceptance of political pluralism will be insufficient to keep the country on track to eventual European Union membership – an aim to which all relevant political actors seem committed. Oral agreement to certain actions even by official Western delegations will not be enough to ensure sustainability in Ukraine’s move towards Europe, for the next years.


It is possible that the government formation of March 11 will lead to a downgrading of Ukraine in future democracy rankings, like those of Freedom House. Should Ukraine, for instance, be relegated by Freedom House from “free” to “partly free,” this could have grave political repercussions for Ukraine. The Western public would again start to see Ukraine as a country “in between” democracy and authoritarianism, and not as a state firmly committed to European values. Ukraine would slide into the category of countries like Moldova, Georgia or Armenia – semi-democracies that the EU hopes to include some day, but regards today far from ripe to be offered a membership perspective. It is not some selected ambassadors or EU officials, but the people of Europe – including the Ukrainians themselves! – who the new political leadership of Ukraine will have to convince of its commitment to democracy and the rule of law.

Andreas Umland, is general editor of the scholarly book series “Soviet and Post-Soviet Politics and Society” (www.ibidem-verlag.de/spps.html).

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