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Update: Ukraine court rules Yanukovych coalition legal

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April 8, 2010, 3:28 p.m. | Politics — by Reuters

Ukraine's Constitution Court ruled that the coalition in the Parliament was formed legally.
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Reuters

Ukraine's Constitution Court ruled on Thursday that a coalition supporting newly-elected President Viktor Yanukovch in parliament had been formed legally. Yanukovych, who took power in late February, had warned that he would call a snap parliamentary election if the court had found the coalition was formed illegally.

An early election would have led to intense political campaigning, pushing back government action on reform, and the ruling, though widely expected, seemed certain to bring relief to potential investors in the ex-Soviet republic.

The next scheduled parliamentary election is set for autumn 2012.

After Yanukovych's inauguration on Feb. 25, his supporters introduced an amendment to parliament rules that allowed the quick formation of a coalition for a government under his political ally, Mykola Azarov.

The amendment allowed individuals to defect from other factions, including the opposition, giving the Yanukovich camp a ruling majority of 235 deputies.

But this was challenged as illegal under the constitution by the opposition grouped around Yanukovich's rival, former prime minister Yulia Tymoshenko.

"Individual people's deputies ... have the right to take part in the formation of a coalition of factions in the Ukraine Parliament," the ruling, read out by court judge Andriy Stryzhak, said.
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Anonymous April 8, 2010, 4:54 p.m.    

Missing from this article is the reasons of the decision and how the Court dismissed the provisions of article 81 and 83 of Ukraine's Constitution It also does not mention is there was a dissenting opinion recorded.

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Anonymous April 8, 2010, 9:32 p.m.    

What is the court's rationale? Someone needs to publish the details of the decision. What a tragic comedy for the Ukrainian people.

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Anonymous April 9, 2010, 6:26 a.m.    

The decision has been published on the CCU web site a copy can also be found on http://ukrainetoday.blogspot.com/2010/04/ccu-ruling_09.html.

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Anonymous April 10, 2010, 8:22 a.m.    

The ruling of Ukraine's Constitutional Court on the question of the formation of the new Government has a major implication over Ukraine. It effectively removes Ukraine's Imperative mandate provisions. The ruling is at odds with Courts previous ruling and the wording of Ukraine's Constitution itself.

It most certainly will need to be reviewed by the European Venice Commission as it also has implications on their reports. Whilst the ruling has some standing in relation to decisions of the parliament it appears to ignore the fact that there is a limitation on the question of the formation of the governing coalition. It also means that the parliament can by regulation or basic law modify the intent of the Constitution itself.

Article 83 (Paragraph 6) 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 key question is the definition of &quot;parliamentary factions&quot;.

Paragraph 9 states

Framework for forming, organising, and terminating activities of a coalition of parliamentary factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and the Rules of Procedure of the Verkhovna Rada of Ukraine.

It is this clause that gives power and authority to the Parliament to establish laws and regulations pertaining to the formation of the government.

In most western democracies a minority government is possible provided they can maintain the support and confidence of a majority of the Parliamentary representatives. There is no question that the current government has the support of a majority of members of parliament, but its only has this support as a result of members of of parliament that have acted as individuals outside the determination of the faction that elected them.

Article 81 of Ukraine's Constitution (Which only recovered a cursory mention in the Constitutional Courts latest ruling) limits a members of parliaments mandate and authority in that they must remain members of the the faction that elected them to office.

There are five factions that secured representation in Ukraine. (Party of Regions, Bloc Tymoshenko, Our Ukraine-Peoples' Self Defence, the Communist Party of Ukraine and Bloc Lytvyn).

Only Party of Regions, The Communist Party and Bloc Lytvyn have formally resolved to join the coalition. Together they do not represent a majority of the parliament. It is only with the support of breakaways MP's that the current government can maintain a majority of the Parliament.

Article 83 requires that the formation of the governing coalition be made by factions that combined represent a majority of of the 450 member parliament. The ruling of the Constitutional Court which is final and can not be appealed have ignored this provision and govern it a much broader application then previously considered to exist.

In 2007 Viktor Yushchenko dismissed Ukraine's previous Parliament in doing so he claimed that the support of the governing coalition was in breach of Ukraine's Imperative Mandate provisions. Yushchenko acted to prevent the parliament from securing support to implement proposed amendments to Ukraine;'s Constitutional which required the support of 300 embers of parliament. The previous Parliamentary government headed by Ukraine's now President, Viktor Yanukovych, was formed with the support of three factions (Party of Regions, The Socialist Party and the Communist Party of Ukraine)

Decision of the parliament are determined by an absolute majority of the parliament (226 out of 450). Certain decision such as amendments to Ukraine's constitution require the support of a Constitutional majority of the parliament Decisions are not restricted to factions, a member of parliament can act independently in supporting any legislative initiative including Constitutional reform.

The latest ruling of the Constitutional Court has confirmed this fact, which brings Yushchenko's actions back in 2007 into question. The ruling of the Constitutional Court has gone beyond establishing the rights of MPs to caste their vote as individuals., It has nullified the provision that the formation of the governing coalition is to be made by parliamentary factions something that all players including the Venice Commission had previous thought was required. This has significantly changed the dynamics of party politics in Ukraine.

The provisions of Article 81 of Ukraine's Constitution has not been addresses and in theory Our Ukraine-Peoples Self defense and Bloc Yulia Tymoshenko and seek in enforce party/faction discipline by expelling those rebel members of Parliament who have acted outside the faction. A process which would be very destructive and paved with numerous obstacles not the least further court challenges.

The opposition factions could try and force fresh elections by resigning their mandate and cancelling their electoral lists. Article 82 second paragraph states

The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected

It was on this basis that agreement was finally reached to allow the early 2007 Parliamentary election to take place although it was never tested in courts. There is no guarantee that mass resignation and cancellation of a party list would force a fresh parliamentary elections or more important that fresh elections would deliver a change in outcome.

The opposition is losing ground, Yulia Tymoshenko has claimed that the decision of the Constitutional Court is tainted by allegation of bribery and corruption. Whilst the decision of the Court gives some conjecture to this allegation,, Tymoshenko has to date not provided and solid evidence that this is the in fact true. She needs to substantiate her allegations beyond conjecture.

One possible option is for the decision of the court to be reviewed by the European Venice Commission to determine if it complies with International standards of law The Venice Commission will be reluctant to be seen to undermine the sovereignty and Constitutional Authority of a member state. But it Si without any doubt the most qualified body to undertake a review even though it has no legislative enforcement. Its report would go a long way towards raising the overall acceptance if the Courts decision.

Had the Venice Commission reflected on the Constitutionality of Yushchenko's decision back in 2007 Ukraine may not have been in the current situation it now finds itself. This is one issue that the Venice Commission can not ignore as they will have to reflect on it at some stage, better sooner then later

What is clear is that this ruling will be widely debated and will most likely be considered as partr of any for proposed Constitutional reform

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