Wednesday, March 10, 2010

Two Hetmans and Defector. The coalition negotiations in the Parliament of Ukraine have reached a final stage.

There is a popular joke-proverb in Ukraine: among three Ukrainians there are two hetmans (hetman is the old Ukrainian Cossack chieftain) and one defector. The proverb reflects the main peculiarity of Ukrainian national character: it is very difficult for us to reach an agreement in political negotiations as every party has its own huge ambitions.

The ‘two hetmans – one defector’ formula is a great illustration of what’s going on inside the Parliament of Ukraine these days. After the inauguration of Viktor Yanukovych as the President of Ukraine, his faction has started negotiations to form a new coalition of majority in Parliament. The Party of Regions expected a kind of blitzkrieg. But the expectations failed. Even the dismissal of Prime Minister and a threat of snap parliamentary election have not led the MPs to consolidation.

The stumbling block of the ‘coalition saga’ hides in provisions of the Constitution of Ukraine, which have no clear regulation of the process of formation of the coalition in Parliament.

A bit of prehistory. Before 2004, Ukraine had a majority voting system, when each constituency elected its own Member of Parliament. (I still hope we will come back to this scheme one day). But in December 2004, at the peak of Orange Revolution, the Constitution of Ukraine was amended, changing the voting system from majority to proportional vote. The amendments came into force in 2006, when first ‘proportional’ parliamentary election was conducted.

The December-2004 amendments also introduced new terms ‘majority’ and ‘coalition’ in Ukrainian parliament. According to the amended Chapter 83 of Constitution, “basing on the consensus of political viewpoints the coalition of the MP’s factions shall be formed, comprising the majority of Members of Parliament of Ukraine from the constitutional membership of the Parliament of Ukraine”. If the coalition is not formed duting 30 days, the President of Ukraine has a constitutional right (not obligation) to dismiss Parliament.

The main question of today’s Ukrainian political discussions is whether the coalition of factions, which have the majority of seats in total amount of MPs, or the coalition of majority of MPs shall be formed.

If the constitutional way of formation of the coalition is a simple sum of factions, the Party of Regions can not form the coalition without the Our Ukraine – People’s Self-Defence faction. (Extra details on Ukrainian parliamentary arithmetic may be found in one of my previous posts)

Moreover, due to the current situation inside the OU-PS faction (which is divided to little groups of interest, and can not act as a monolith body), the formation of the coalition on the base of factions, not MPs individually, is totally impossible. Every part of the OU-PS faction tried to lobby the appointment of its candidate for the position of Prime Minister – the names of Arseniy Yatseniuk, Viktor Yushchenko, and some other variants were proposed. As a result, the Party of Regions ‘got tired’ and made a decision to propose the candidature of its member Mykola Azarov (ex-Minister of Finance and Vice-Prime Minister of Ukraine).

(Some rumors say that Azarov was planned for the PM position from the very beginning, and the negotiations on the ‘non-Party-of-Regions’ candidate were just a trick).

Nevertheless the fact is the following: tomorrow, on 11 of March 2010, the Party of Regions will form the coalition of MPs (based on its own faction, factions of the Block of Speaker Volodymyr Lytvyn, Communist Party, and some individual MPs from the OU-PS and even from the Block of ex-PM Yulia Tymoshenko plus independent MPs).

All the political forces who will be eliminated from acting power after the formation of a new coalition are claiming that such a coalition will be unconstitutional. Among them – Yulia Tymoshenko and her allies, Arseniy Yatseniuk, and even Viktor Yushchenko (who seriously hoped to become a PM by himself).

By the way, number 3 according to the results of the first round of Presidential election – 2010 Sergiy Tigipko has agreed to become a Vice-Prime Minister in a new Government (it is a result of his yesterday’s meeting with Viktor Yanukovych). Number 4, Arseniy Yatseniuk has decided to form its own opposition government. The same business is in plans of Yulia Tymoshenko who declared herself as the only leader of democratic opposition. (See the proverb about two hetmans).

The opponents of the ‘individually made’ coalition are referring to the decision of the Constitutional Court of Ukraine No 16-pn/2008 of 17 September 2008, which has interpreted the Constitutional provisions in favor of faction-based formation of the coalition.

Again a prehistory. The need in the interpretation of the coalition-building part of the Constitution was caused by decision of two MPs from the OU-PS and BYT factions (on 6 June 2008) to withdraw their membership in the coalition, formed by their factions. As the result, the coalition had less than 226 members (the majority of MPs).

The same time (it is what the opposition doesn’t mention it its rhetoric), in the decision No 16-pn/2008 the Constitutional Court stated that on that time the Parliament of Ukraine had no legitimate Rules of Procedure, which, according to the Constitution, shall regulate the process of formation and the termination of activities of the coalition: “The filling of such gaps (in legislation) is not the authority of the Constitutional Court of Ukraine. These questions shall be regulated in the Constitution of Ukraine and/or in the Law of Ukraine on the Rules of Procedure of the Parliament of Ukraine”.

I would also quote the Constitution of Ukraine here: “The basis for the formation, organization of operation, and termination of activities of coalition of deputy factions in the Parliament of Ukraine shall be established by the Constitution of Ukraine and Rules of Procedure of the Parliament of Ukraine”.

The Rules of Procedure of the Parliament of Ukraine were adopted (at last) on 10 February 2010. On 9 March 2010 Parliament adopted amendments to the Law on the Rules of Procedure, which permits to form the coalition of majority according to the individual membership principle.

So, the Rules of Procedure and the common sense say that it is possible to form a coalition, comprising 226 and more Members of Parliament of Ukraine (i.e. the majority of MPs).

Moreover, the individual way of formation of the coalition corresponds with the international standards and the rule of law. The European Commission for Democracy through Law (Venice Commission) has issued the Opinion on the amendments to the Constitution of Ukraine adopted on 8.12.2004 (adopted by the Commission at its 63rd plenary session in Venice, 10-11 June 2005).

The opinion of the Venice Commission states the following:

It may be questioned whether such a formalised procedure for forming a parliamentary majority would contribute to enhancing political stability in Ukraine. Furthermore, it could hardly be seen as compatible with the freedom of the choice and decision guaranteed to political parties by the Constitution, in conformity with European standards in this field. Generally speaking, alliances between political parties depend on the free choice of the parties concerned, and will last as long as the governing bodies of the parties find it convenient to stick to the negotiated agreements. In addition, a coalition government may give disproportionate power to small parties and therefore be unrepresentative”.

Full version of the Venice Commission opinion may be read here.

For all intents and purposes, it is unconstitutional indeed to restrict the activities of Members of Parliament of Ukraine as representatives of citizens of Ukraine by the ‘will of the faction’. Besides, even in this convocation of Parliament only the Communist party faction consists of members of one political party. Other factions are political blocks of two and more parties’ representatives. So, it is not logical to push them into the borders of ‘united actions inside the faction’.

When I was discussing this question with my friend (ex-journalist of Yulia Tymoshenko newspaper) yesterday, she invented a very interesting idea. If the coalition is formed only by factions, there is no need in personal vote in Parliament at all, she said. Heads of parliamentary factions may single-handedly decide, which a faction’s position is, and all the decisions in Parliament shall be made by simple arithmetical calculations. Than, there is no need to keep a building of the Parliament, she added. What a great way to save money for a state budget in crisis times!

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