Ukraine Right or Wrong

Was Ukrainian President Viktor Yushchenko right to call for parliamentary elections? This is a question that in recent days has been the subject of intense debate. Constitutionally, he seems to be on the slippery slope. Still, his argument that "it is not only my right, it is my obligation" might prove valid if he acted in the spirit of the constitution as its supreme patron. The core question is though how advisable it is for state to have a constitution, which allows for such a situation to occur.

Imagine, for a moment, that the US Congress would act not only to impeach the president, but also actively prepare to abolish the office of the president itself.

For an American this would be absurd, as the fundamental idea of the founding fathers was a system of checks and balances between the executive, legislative, and judical powers, as inspired by Montesquieu. This separation of powers' system is also the foundation of most modern democracies, and usually there are elaborate mechanisms to avoid situations that risk jeopardising the stability provided by the checks and balances of independent centres of power. Paradoxically, this seems not to be the case in the Ukraine, as recent developments demonstrate.

The 8 December 2004 deal ending the Orange revolution involved changes to the Ukrainian constitution to limit the great powers of the presidential office, previously enjoyed by Leonid Kuchma. This was the price the leaders of the Orange revolution paid to get the fraudulent presidential 23 November elections invalidated. However, the changes did not enter into force until 1 January 2006.

As the Ukrainian constitution now works, the parliament has the right to override presidential vetoes if a qualified majority of 300 out of 450 deputies so decides. Such a majority also has the option to make constitutional changes, and even abolish the office of the president itself. Thus, article 155 of the Constitution reads:

Introducing Amendments to the Constitution of Ukraine, previously adopted by the majority of the constitutional composition of the Verkhovna Rada of Ukraine, is deemed to be adopted, if at the next regular session of the Verkhovna Rada of Ukraine, no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine have voted in favour thereof.

Still, the provision of decisions by two separate parliamentary sessions with elections in between, seems somewhat obscure, as the changes made in December 2004 appear to have entered into force before the March 2006 elections. It is therefore possible that the Verkhovna Rada may change the constitution by a single decision of a two-third's majority.

A further mechanism to counter quick and unpredictable changes between elections may be § 83 of the constitution, which can be interpreted as preventing deputies to change loyalties between parliamentary fractions, as a coalition is to be formed by fractions and not individual deputies. This reasoning seems both obscure and ambiguous, but has been a key argument for the president to protest against the fact that an increasing number of MPs from his party, Our Ukraine, have changed allegiances in favour of the Party of Regions. As votes were thus added to the anti-presidential coalition in parliament, the situation eventually became desperate, as Yushchenko's enemies were closing in on the 300 deputies margin. If this was allowed to happen, a qualified parliamentary majority could deal with the president as they saw fit, and eventually even depose of him.

Then, in which situations is the President actually allowed to call for new parliamentary elections? The answer given by constitutional article 90 set three provisions:

1. If the parliament cannot reach a majority (coalition) to form a government within thirty days after the first meeting of a newly elected parliament.
2. If a coalition cannot reach a majority to form a new government within 60 days after the resignation of a prior government.
3. If parliament during session has not met for a period of 30 days.

It is quite obvious that Yushchenko did not fulfill any of the above criteria when signing the decree to disband parliament and call for new elections. Consequently, if reading the Constitution to its letter, Yushchenko had no right to do this. So, does that mean that he was completely off his rocker when he decided to make this move? Not necessarily. The argument that he acted in the spirit of the constitution as its supreme patron is certainly valid. As president, Yushchenko may perceivably have "the right and the obligation" to act if a situtation occurs, which threatens the constitutional order.

When such a case is applicable is however unclear. One prerequisite might be if parliament had a clear and expressed intent to jeopardise the constitutional order. The requirements to be fulfilled in meeting the prerequisite of intent is however very obscure. Thus, the matter has been referred by parliament to the Constitutional Court for a ruling.

Until recently, it was very uncertain whether the Constitutional Court would choose to address the matter. According to its statutes, it has 15 days to decide whether it at all will deliberate on an issue raised by parliament. Then it was declared that the Court would make its ruling on Wednesday this week. However, today five of the 18 judges said that they considered resigning due to public threats against them, and asked for police protection. Now, the court ruling has been delayed until 17 April.

Reviewing the composition of the Court, it consists of eigtheen members: 6 judges, 6 parliamentarians and 6 presidential appointees. The five now concerned represent all three groups. Still, the Court could also choose to make a ruling even without the participation of the five members, as it only needs 10 of its members to make a ruling. That the Court could get a majority decision in this way is still very unlikely. Essentially, the question is whether the Court will make a ruling at all. That is highly questionable, as the developing crisis may render its opinion obsolete even if it could finally reach a verdict.

All in all, President Yushchenko seems to stand on weak ground as for his decision to disband parliament and call for new elections. However, this does not mean that he may not stand his ground in the battle over its legitimacy. As events are evolving, new elections on 27 May seem to be the only sensible option to end the current conflict democratically. Consequently, the question whether his decision was right or wrong may never really be legally addressed. In terms of politics, his choice was a "catch 22" and whatever choice he made - be deposed by parliament or call for new elections - it was to come out bad for himself. The political verdict on Yushchenko may therefore be hard, as he for too long walked an increasingly thin line in exercisising his presidential duties. Still, whether Yushchenko was right or wrong is not the core issue. The important thing is whether his decision will eventually turn out to be right or wrong for Ukraine and its people. After all, that was what the Orange revolution was originally about - giving a voice to the people.

Update: According to the BBC, Yushchenko would now be "willing to suspend his decree dissolving parliament and ordering an early 27 May election." This would constitute a postponement of parliamentary elections, so that parties can prepare for an election campaign, and not a change of opinion in that elections should be held. Thus, it is a signal that Yushchenko might be willing to compromise on the date for elections, but still carry through with the process. How it all ends up is very uncertain and it remains to be seen how Yanukovich supporters and other parties will react to this feeler.