Saturday, March 27, 2010

License to kill: EU delegates compromise rule of law for outcome

The European Parliament delegation, headed by Vice-Chair of the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament Adrian Severin, has placed political stability over the constitutional rule of law. In a statement reported by ForUm Severin offered his support to the new Ukrainian Government and in doing so has indicated that  the means justifies the outcome.  

In what could be seen as a license for Ukraine's Constitutional Court to embrace the formation of the new government, Mr Severin stated on behalf of the European Delegation "We are pleased that you managed to create a coalition, which is now to address the urgent political and economic issues, and we hope that the Constitutional Court will adopt a decision that confirms the legality of the coalition."

"Clearly, early elections could as well be a constitutional solution, but we are more pleased to see stability in the country, rather than early elections


Adrian Severin's first and foremost responsibility is to to ensure that Ukraine's Constitution is upheld and that rule of law  prevails over political expediency at all times.  It is not satisfactory for a senior head of  the European Parliament to be giving signals that breaches of Ukraine's Constitutional law is acceptable under any circumstances.  

The Parliamentary Assembly of the Council  of Europe had already compromised its position when it selectively turned a blind eye to the abuse of  office and breaches of Ukraine's Constitution by Victor Yushchenko in 2007 when he unconstitutionally dismissed  Ukraine's previous Parliament and illegally interfered with the independence of Ukraine's Constitutional Court.  Yushchenko's actions undermined confidence in Ukraine causing seven months of political and civil unrest.  

The failure of the European community to speak out against the events of 2007 also undermined the values of social democracy that Mr Sovereign's party rightly promotes.  

As much as it is pleasing that some form  of political stability has befallen Ukraine the basis of the formation of the new government under the circumstance where they contravene Ukraine's Constitution can not be supported under any circumstances.  To do so sets a very dangerous precedent that rule of law and a States constitution can be ignored if it is seen to be of political advantageous to various powers based in Ukraine or in Brussels.

If the Constitutional Court, as expected, rules against the formation of the new government then early Parliamentary elections must be held.  Victor Yanukovych has indicated that he would call elections. Article 90 of Ukraine's Constitution gives the President the right to dismiss Ukraine's parliament if it fails to form a government within 30 days and a cabinet within 60 days. The dismissal of the Parliament is not mandatory and Yanukovych could readily delay the process  and opt for a new election in October.  A long political campaign could work in Yanukovych's favour as it would allow the existing government to contrast the actions of the new compared to the old. Stability versus instability. It also allows the new government to remain in office and with it the advantage of incumbency in the lead-up to a fresh election.

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Tuesday, March 16, 2010

Decisive Stability; Yushchenko kept on the outer

Ukraine new Government has been installed in a with what could be described as a military like precision restoring a sense of purpose and determination, the sought  of stability that can only be achieved if the head of state and the parliament are of one mind. A reminder of what could have been achieved had Yushchenko acted in supportive role as opposed to his consistent undermining of confidence and stability.


It is this sought to determination that has dominated the acceptance of a government that otherwise would be considered unconstitutional.  Yes the new government has the support of a majority of MP's but only with the support of  a group of dissident MP's from both Bloc Tymoshenko and Our Ukraine-Peoples' Self Defence.

The new coalition comprises 16 individual deputies - six members of the faction from the Bloc Yulia Tymoshenko, another six from the Our Ukraine-People's Self-Defense faction and four independent deputies

Questions of constitutionality and legitimacy of the new government have been ignored with the government declaring that the changes to the law can not be undone.  Justice Minister Oleksandr Lavrynovych stated that "the parliamentary coalition will remain unchanged even if the country's Constitutional Court rules these amendments unconstitutional".  A bold statement of defiance, if ever, from Ukraine's highest legal official. It in itself raises concern at the type of government that has been installed.  A government that will surely be characterised more as a constitutional coup then a democracy.

Some of the decisions that the government has been quick to act on is the replacement of Pro-Yushchenko and Tymoshenko officials, the restoration of close ties with Russia and the declaration of non alliance/independence from NATO, writing off compeetely failed policies of Yushchenko's era..

Of course we will soon see a return of the Parliamentary blockage with six parties agreeing to form the Opposition with Yulia Tymoshenko appointed Opposition leader.  Tymoshenko will once again take the take of chief antagonist but her voice may be lost in the rush of activity as the new government strengthens its hold on power. The role of the west has been somewhat subdued but in time they will undoubtedly seek to exert influence for Ukraine's policy of closer ties with Russia.

Yushchenko's greatest mistake, apart from not forming a governing coalition back in 2006 was his dismissal of the Yanukovych government in 2007, at least then there he was in office and had the ability to influence the outcome. Now he is already a forgotten force and a reminder of just how bad instability can be, not only on the economy but also the direction that a government can take. Yes, stability has been restored but at what cost is yet to be seen. Things are changing at a fast pace and the Communist party are in a much stronger position then they were back in 2007. All thanks to Yushchenko.




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Thursday, March 11, 2010

New coalition skating on Constitutional thin ice

Ukraine's newest governing coalition was formed amidst controversy and concern that the governments formation is unconstitutional. The new coalition sees a return of the previous parliamentary government between Party of Regions, Communist Party of Ukraine, Bloc Lytvyn and the self named 'People's Party' - a breakaway faction of individual members and mercenaries from Yushchenko's 'Our Ukraine' faction.

Yushchenko himself has been left out of the game indicating that he had not yet been rewarded for his support of Yanukoych's campaign during last months Presidential election contest.

Ukraine's former prime-minister, Yulia Tymoshenko and Viktor Yushchenko have teamed up to challenge the validity of the new coalition in Ukraine's Courts.  This is one contest that Yushchenko and Tymoshenko should win.  At issue is the formation of the coalition government by individual members of Ukraine's parliament. Article 83 of Ukraine's Constitution requires that the coalition be formed by factions representing a majority of MP's. At the heart of the challenge is the definition of a faction as determined by the result of the last election.  The new Peoples' party was not elected in 2007, their status is questionable and most certainly unconstitutional.

If the reunited opposition  (at least on this one issue) manage to secure a ruling from the courts then we can expect new parliamentary elections will follow in October, but this will take time and the new government will remain in place until such time as the courts rule. A long drawn out court decision will not help restore confidence in Ukraine. As investors wait patiently and nervously for the courts decision Ukraine's future amidst uncertainty is just as bad and debilitating as instability under the Tymoshenko government the main difference being that the newly  elected President is not working against the government undermining its success.

A delay in outcome might in fact work in the new governments favour who will hold the advantage of being in office holding all the strings and trump cards  The provisional government may even use this issue as a  rallying point to introduce constitutional amendments which they will try and take to the people of Ukraine offering them a solution to the ongoing political crisis of stability. The cure might turn out to be worst then the infliction.

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Tuesday, March 09, 2010

Yushchenko the betrayer

As if Ukraine did not know it already.

In what is considered to the first of many reprisals and expose of internal conflict with the Orange coalition

Kyiv post has published comments by Our Ukraine-Peoples' Self Defence leader, Yuri Lutsenko, in which he states that Yushchenko betrayed democratic forces having signed the Universal Agreement with Viktor Yanukovych.  He did every thing he could to to allow Yanukovych win the [Presidential] elections.



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Friday, March 05, 2010

New President makes first mistake: Does outcome justify the means?

Ukraine's new President, Viktor Yanukovych, has sought to bypass Ukraine's constitution by passing legislation that seeks to side step Ukraine's Constitutional Imperative mandate provisions.

In what is seen as a test of will and integrity Yanukovych and his party wants to allow individual MP's, not factions, to decide the makeup of Ukraine's governing coalition thus allowing small groups of MP's to be poached and agree to a formation of a new coalition in order to avoid fresh parliamentary elections.

Article 83 of Ukraine's Constitution states:
...

According to election results and on the basis of a common ground achieved between various political positions, a coalition of parliamentary factions shall be formed in the Verkhovna Rada of Ukraine to include a majority of People’s Deputies of Ukraine within the constitutional composition of the Verkhovna Rada of Ukraine
...

The proposed rule change is designed to allow renegade members of Our Ukraine -Peoples Self Defense bloc to breakaway from their faction to support the formation of a new coalition with Party of Regions and the possibility of Viktor Yushchenko being appointed Ukraine's next Prime Minister..

In 2007 Yushchenko dismissed the previous Parliament which was lead by Victor Yanukovych arguing at the time that the governing coalition was in contravention to Article 83. Now it appears that he has had a change of heart and is prepared to forsake Ukraine's Constitution.

Bloc Tymoshenko and other members of Our Ukraine-People's Self Defence bloc have rightly argued that the proposed legislation is unconstitutional and has vowed to challenge the law in Ukraine's Courts and appeal to the International community and the Venice Commission to help uphold Ukraine's Constitution. Something they did not do back in 2007 .

This will be Yanukovych's a test of will and process and the legitimacy of the new government.

Members of parliament in Ukraine are elected on the basis of a party/factional bloc lists and not as individuals. By seeking to allow individual MP's to decide who will form a government will leave the parliament in tatters and a state of anarchy with individuals members of parliament acting alone and contrary to the wishes of a majority of their own faction.

Any government appointed under these conditions will not havelegitimacy until Ukraine's Constitutional Court has ruled on the legalityof the proposed law. It is difficult to see under what circumstances the Constitutional Court can support the proposed new law which should only be enacted via a Constitutional amendment and not regulatory legislation.


This will also be another test for the Parliamentary Assembly Council of Europe and the Venice Commission who in 2007 remained silent as Ukraine's past President, Viktor Yushchenko, breached Ukraine's Constitution in dismissing the previous parliament in order to force fresh parliamentary elections. Elections which elected the current parliament. PACE also turned a blind eye to Viktor Yushchenko's illegal interference in the operation and independence of Ukraine's Constitutional Court. The Court never ruled on the question of legality of Yushchenko's actions.

Expediency is no excuse for actions that are unconstitutional. If Yanukovych can not form a new coalition in accordance with Ukraine's Constitutions then he should either seek to amend the Constitution or hold fresh elections. In 30 days time he will have the authority to act and seek a mandate for reform.

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Thursday, March 04, 2010

New President resigns as leader of his political party

In a welcomed move Ukraine's new president. Viktor Yanukovych, has resigned as  Party of Regions leader.  Unlike that of Viktor Yushchenko, Yanukovych will comply with the provisions of Ukraine's Constitution by relinquishing any other representative mandate.  In theory, as President, he represents all of Ukraine and not just his political faction.  By resigning from the party leadership Yanukovych removes himself from the day to day operation of party politics.

Article 103 of Ukraine's Constitution states:

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The President of Ukraine shall not have another representative mandate, hold office in bodies of state power or in associations of citizens, and also perform any other paid or entrepreneurial activity, or be a member of an administrative body or board of supervisors of an enterprise that is aimed at making profit.
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What a difference a day makes: Government dismissed and starts clock ticking

Ukraine's Parliament has passed a vote of no confidence in the government, effectively dismissing the Tymoshenko government.  Allegations have been made that seven members of Tymoshenko's faction were bribed to support the no confidence motion effectively signing their political resignation as Bloc Tymoshenko moves to have the expelled from the faction.

The Parliament has set a course heading towards fresh Parliamentary elections.  Under the terms of Ukraine's Constitution the parliament has one month to form a new governing coalition and 60 days to appoint a new cabinet.  If it fails to do so within the time line set President Yanukovych will have the.option of dismissing the parliament and calling fresh election.

Faced with the real possibility of losing representation is a strong incentive for the current parliament to try and form a new alliance.  President Yanukovych has urged the parliament to way up its options and form a new coalition without delay.  There is an expectation that a new coalition will be in place within days.

If fresh elections were held during the first round of the Presidential elections Bloc Lyon and Our Ukraine along with all  other parties would lose representation. Lytvyn would not pass the 3% representation threshold.  The only winner will be Sergei Tigipko would would hold the balance of power in a new parliament.

The question that is still to be answered is who will be part of the new coalition and under what conditions will it exist.  Under Ukraine's constitution a governing coalition is formed by factions not individuals that together represent 50% or more of the members of parliament.  that means that any coalition must include either Our Ukraine=-People's Self Defence or bloc Tymohsenko as either one holds the balance of power in the current parliament.

If an alliance is made between Our Ukraine-Polls Self Defence and Party of Regions then the new coalition will be just as fragile as the previous coalition, the main difference is that Yanukovych hold the Key trump card and unlike his predecessor Viktor Yushchenko he will not seek to undermine a coalition that encompasses his own party.  A Our Ukraine -People self Defence (Also known as NUNS) and Party of Regions coalition will most likely also include Bloc Lytvn so as to balance out the renegade NUNS members.

 Without the support of Bloc Tymoshenko a new coalition will not have power to amend Ukraine's Constitution.  A coalition between Party of Regions and bloc Tymoshenko would be the strongest but is unlikely to be formed given the recent events leading up to and following the Presidential elections.  It is also highly unlikely that Tymoshenko would be restored to the PM's post.

In what is a ill-fated twist of faith the Tymoshenko government has produced reasonable economic management over the course of the Global Financial crisis according to recent economic data published last week.  But politics is not about facts but more about personalities and public perception.

Tymoshenko is not yet ruled out.  Her standing and results in the Presidential election, falling 3.5% short of wining were never the less impressive.  If Our Ukraine do diced to support a new coalition then Tymoshenko's  standing can expect to increase as disillusioned Our Ukraine supporters abandon ship.

The parliament may yet face early election.  Tymoshenko will have the power to once again force fresh Parliamentary elections at a date of her choosing by resigning her mandate,  She can use the same arguments that Yushchenko applied when he dismissed the parliament back in 2007.

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Tuesday, March 02, 2010

The split is on: Our Ukraine abandon governing coalition

Our Ukraine along with Bloc Lytyn have once again proved that they are not trustworthy coalition partners and that they will gravitate to the powers that be  The stage has been set for a vote of no confidence in the government on March 3, 2010. If a motion is passed then the fuse will be lite and the countdown will begin. Ukraine's parliament will have on month in which to decide will they face the people of Ukraine and hold a fresh round, the third in as four years, of parliamentary elections.

Yanukovych's ultimatum "form a new government or face elections"

Under the provisions of Ukraine's Constitution (Article 83) a governing coalition must be formed with the support of factions (not individuals) representing a majority of members of Parliament within 30 days and they will 60 days to form a new cabinet.  With the passing of a vote of no coincidence the existing cabinet will be deemed to have resigned but they are entitled to remain in office until a new government is appointed and approved by the President of Ukraine.  Viktor Yanukovych is not obliged to dismiss Ukraine's Parliament once the expiration date for the trigger has elapsed but he in the passing of these dates the President will have considerable greater authority to apply pressure on the existing parliamentary to support a new governing coalition with party of Regions.

If fresh Parliamentary elections were held during the first round of presidential elections Sergei Tigipko would hold the balance of power.  Bloc Lytvyn would lose representation and Our Ukraine-Peoples' Self Defense would no longer exist with Our Ukraine is fracturing into two or more parts.  Arseniy Yatsenyuk would lead the forth highest political faction. Peoples Self defense have already declared that they will move into opposition with Bloc Tymoshenko should Party of Regions move into government.

The threat of a new parliamentary election is a strong incentive for Lytvyn to go with the flow, what ever direction pressure  is applied. All indications are he will do just that. Lytvyn will vote to support a new governing coalition.  The problem being that once a vote of no confidence is passed there is no turning back, the horse trading will be on on in all seriousness.

Much will depend on how the our Ukraine-Peoples' Self Defense faction as a whole will vote.  They are not a united faction and a majority of its members will have to decide who to support Tymoshenko or Party of Regions.

The formation of a new government might buy more time but the inevitable need to hold fresh elections will eventually win out. Our Ukraine will begin to lose public support and a large percentage of their support base will gravitate to Tymoshenko who will then be in opposition. Eventually Our Ukraine and party of regions will fall out and an impasse on policy and direction will see Our Ukraine once again take an opposing point of view.  Party of Regions will have noting to fear from fresh elections, the main losers will be Lytvn and Our Ukraine.

Waiting in the wings of course is Sergei Tigipko who if elections are held sooner than then later will be main benefactor and who will most likely hold the balance of power and be in a position to decide who will be in government.  Party of Regions will consider Tikipko a more stable coalition partner something that both Party of Regions and Tigipko can play off in a parliamentary campaign.

Bloc Tymoshenko, assuming it will remain united faced with moving into opposition, can also decide to force parliamentary elections should Our Ukraine support a coalition with Party of Regions.  Bloc Tymoshenko, as they did in 2007, can resign their mandate and cancel their election list at a time of their choosing. But this also has some risk s as it also work against them as Ukraine begins to tire of the constant political round Robbin of elections.  Tymoshenko would become the focus of voter resentment but so too could Party of regions and all other political parties except Tigipko and Yanteniuk.

Party of regions holds all the trump cards the only thing missing is a constitutional majority.  The President of Ukraine still holds considerable power, the power of veto, the right to make presidential declarations and authority to dismiss Ukraine's Parliament should it be deemed necessary,

A third alternative, but more remote, is the formation of a constitutional majority coalition between Bloc Tymoshenko and Party of  Regions.  If Bloc Tymoschenko and Party of Regions  were able to return to the negotiating table and form a governing coalition of unity then  opportunity could exist to reform Ukraine's Constitution and system of governance.  Ukraine could become a full parliamentary system of governance. This is unlikely to happen now that Yanukovych has been elected President, Party of Regions let alone Yanukovych will not give up power no that they have won it - even if it is in Ukraine's best long term interest.

As long as Ukraine remains divided it will sadly continue to ride the roller-coaster of political instability and power struggle between the office of the president and the people's parliamentary representatives.

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