Taras Kuzio’s Blog

Dr.Taras, I’d like to answer elmer’s questions in previos article and don’t know were to place them. Last comment relates to Constitution, so I place it below. Feel free to move it on your choice.

(Elmer)
2) “should serve his full term …unless he has committed high crimes in office”
- I don’t understand why some people insist on that “letter of law” is higher than “spirit of law”. The laws of society are not the “laws of nature”. The last ones in some form of scientific representation or interpretation (also revised from time to time) are working independent of us, and all we have to do is accommodate to them and use for own good. In contrary, the “laws of society” have absolutely polar source and direction: they are made by people (and you know that some of people “are good” and some “are bad”), they have to serve for the good of majority (but never for all 100%) and are nothing more, including Constitution, as social agreement. What to do in situation when some law works against the good of majority and 97% (as in our case) understand this? What is more important in such extraordinal situation? “Letter of law” or simple common sense that the laws are not given by God, that they are made by people and they can be changed by them if they start to work against them. And answering your question: should society wait for some criminal act as murder (save God!) or bribe with “marked dollars” documented on video? And as for the head of the state – is not such reason as simple professional unfitness that pushes country backwards enough for this?
5) “Dictatorships are “efficient.”
- I absolutely don’t understand where you could find such statement. Maybe I should write: “…long discussions somewhere in warm dry place about the purity of…at the time when hurricane is near your home?” – I tried to make accent on the word “purity” but not on “democracy”. I’ll try to explain. I’m not sure, maybe Dr.Taras will correct me: I’ve heard that Sir Winston Churchill was highly respected due to the fact that at the time of World War II it was he as Prime Minister who made decisions so needed for defense whereas some of other high authorities were in the state of deep confusion. Can you see “dictatorship” in such cases?
6) “It is BEFORE they are implemented – not after a mistake has been made.”
- You are right, but do you know that this proposition was made by Tymoshenko yet before elections 2007? There were 9 questions on advisory referendum, this idea was supported by several millions of signatures and it was Yushchenko who blocked this idea. The form of 2 questions on what type is preferred – presidential or parliament was absolutely identical. (http://vybory.org/articles/902.html)

By Yuri_D on Jun 9, 2009

see my reply on the previous post.

By elmer on Jun 9, 2009

Taras, I’d like to know your opinion on so-called “imperative mandate”.
Both in Ukraine and abroad it is mostly considered as “antidemocratic”.
On the one hand it seems to be reasonable: really, any person must have a right to possess his own opinion and defend it, otherwise it would be violation of human rights.
But let’s look from the other side.
1) In Majority voting systems every elected deputy (in our case Rada with 450 dep.) represents interests of about 30,000 voters who delegated him on the basis of his election programme (it includes both promises of local level and global political views). From this moment he becomes a person “under contract”; he is one of the sides who “signed agreement”. What can be said about his rights? As for me, I see this in such a way. All his human rights must remain the same including voting and even inversion of political views (even opposite those shown before elections). But in the last case (to be more precise – in any case) he, as a “person under contract”, must explain to 30,000 voters his actions and they and only they can support or reject this. If voters disagree – they must have ability to recall him very quickly and on my opinion only with such kind of mechanism as gathering signatures (in court this deputy has full rights to defend himself only in the case of personal conflicts). Classical example: Taras Chornovil (elected in Lviv region) in 2004 jumped to PR and headed Yanukovich’s stuff. More than enough signatures had been gathered from disturbed citizens in his voting district to recall him, but it was our highly imperfect laws and juridical casuistry that allowed him to become a servant of opposite camp.
2) “Party-lists voting system”. Let’s assume some party having 30% in Rada. In this case every deputy represents interests of 30,000 x 150 = 4.5 millions of voters. Again, what can be said about his individual rights? In this case not he, but a party represents interests of voters, the direct “contract” was signed not between him and 30,000 voters, but between party as a whole and millions of voters. As in the previous case I agree that he must be free to speak, vote and act on his own – any of his rights cannot be violated. But what if his actions come into conflict with hopes or interests of millions of voters? They delegated powers not personally to him, but as 1/150 part of a party, moreover, they supported this party in great extent trusting the leader and well-known top authorities of a party. What we see in practice – in the case of 227 deputies it’s enough only 2 votes of only “highly independent deputies” (like Plushch, Kril’) to completely destroy the hopes of millions of voters.
Where is the way out? I cannot understand logic of those (what’s interesting – the member of the same party as Plushch and as he shows, opponent to him – Oles’ Donyi is one of most active ones) who consider so-called “imperative mandate” as anti-democratic. In the case of conflict between individual and let’s say – whole state, office – I agree that the laws of the state must guarantee priority of rights of a person. But can be such approach justified in discussed question? Why nobody cries about violation of the same individual rights of millions of voters who personally (secret voting) delegated defense of their human rights to their favorite party?
It’s the other question of the procedure of its realization in practice. Firstly, it must be relatively quick, and again, not by the court. On my opinion irrespective of close- or open party lists system, the right of decision on recalling deputies belongs exclusively to this party (preferably by the extraordinary party conference and by secret voting to avoid influence of top leaders). In the case of open-lists it seems to be much easier and “democratically” to recall them by his own electors using gathering signatures. I don’t think so, because if to take into account reality – high level of corruption, existence of so-called “oligarchs” in any party – it’s not so hard to “buy” voters in one district. We pretty well know the examples – “sovoc-like” 90% voting for socialists in one of East Ukraine “happiness island” in the ocean of POR-supporters, or even Kiev, where Chernovetsky “bought” the votes of majority of citizens.
Taras, my question is: what is argumentation of European and world analytics, Venice Comission considering “imperative mandate” in today Ukraine as anti-democratic? I see it as one of efficient elements of negative feedback, so needed for stable and reliable work of any complex system, including society.

By Yuri_D on Jun 10, 2009

You see the right problem, but you are asking the wrong questions.

The solution is simple – eliminate the party list system. Create voting districts for the Rada. That way, when you go to vote for a member of Parliament, and you elect a representative from your district, you know that he is accountable to you, and to everyone in the district – not to the party.

And not to oligarchs.

Who represents you in the Rada right now? Noone.

Ukrainians have a very bad habit of making simple things complicated.

By elmer on Jun 10, 2009

elmer, if we take the same period – from 1917 and 1991 – both USA and USSR political systems were very stable and in political sense – very simple. It is transition from lower level of stability to upper stable level (as in quantum systems) that is complex because needs no less than threshold portion of energy.

By Yuri_D on Jun 10, 2009

Clearly, Taras, there is no doubt that there is a “political elite” which despises the people, and does what it has to do to get elected.

But I disagree with you about the single-representative direct election in voting districts system.

Does Britain use a party list system? France and Germany do not, although Germany’s system does make use of a partial party list system – but Germany has 2 “houses.” Canada does not use a party list sytem – they have “ridings,” where a single representative is elected from among several candidates.

Here’s why I disagree with you, and you’ve said it and so has Yuri_D -

the lack of education, experience, and knowledge about democracy, and the timidity of the people.

Tymoshenko herself has used the scare tactic about direct elections of parliament – “remember what got the oligarchs elected – the majoritarian system.”

But that’s NOT what got them installed.

What got them elected is that the commie insiders were already organized, controlled the resources and planned their moves. I dare say that Rukh was just about the only ideological party, but they spent too much time arguing amongst themselves and disintegrated.

Almost anything would be better than the party list system, open or closed, which Ukraine has today.

I believe that each of the “political forces” promised 2 things:

1) to get rid of parliamentary immunity

2) to get rid of the party list system for something better

Demonstrating utter contempt for the people, none of the jerks has done that, despite all of the hours and hours of talk on the Savik Shuster show and on other shows.

Yuri_D, politics is not physics, and if you know history from 1917 to 1991, you know that nothing was stable – it’s not only Brownian motion, it’s entropy. You forgot 2 World Wars, but a bunch of other assorted wars and revolutions.

If you meant that the fundamental system did not change in the US – then I agree with you.

But the fundamental system in the USSR did change – Stalin’s USSR did not look anything like Gorbachev’s.

I’m not sure what that has to do with anything, but those are my 2 kopiykas.

By elmer on Jun 10, 2009

Elmer, finding of analogy works very efficiently in deeper understanding of phenomena, analysis both in related natural sciences and those that at first sight are far. Earlier I wrote few words about feedback – there was prominent American scientist Norbert Wiener whom majority of people know only as “the father of cybernetics” and maybe associating with “cyborgs” so popular in movies. He was the first who found deep analogy between organization of control, communication both in artificial systems (such as electronics, machines, computers) and living organisms, society – and showed that feedback principle is common for all these systems. Also he applied principles of entropy for describing artificial systems; another physicist – Erwin Schrodinger seems to be the first who considered life as process with negative entropy.
And as for our discussion – the level of democracy depends rather on developed and efficient feedback mechanisms in society (i.e. ability of people in practice, with minimal delay correct things) than on type of elections or form of government. If control in society is practically one-way directional (from top) – we call this “total control” or “dictatorship”, isn’t it?
As for history – of course I meant fundamental – in war time political systems were unchanged. According stability: as compared with changes in political systems of most European countries (excluding GB). Also I meant that both “good” and “bad” systems may be very stable for a long period of time.
Gorbachov – I highly respect him, he made much more than maybe even himself wished. But as a system it was the same: one party, the same constitution, election system, structure of government.

By Yuri_D on Jun 10, 2009

Yuri_D, I’m still not sure what point you are trying to make.

However, I will say this – even a dictatorship cannot exist without the consent of the people – either by overt consent, or by simply not opposing the dictator.

Put differently – dictators have been known to get overthrown.

By elmer on Jun 10, 2009

Dear Dr. Kuzio, Please allow me to comment on your remark: “In Ukraine the democratic culture is young – this is not a criticism it is a fact – and influenced by the occupation of the Tsarist and Soviet empires.”

This may be a side issue here but it seems to me that the applicability of the term “occupation” to describe the fact that the Ukrainian territory was ruled from Moscow (or St. Peterburg) in the times of the Russian Empire and the USSR is controversial enough to not be used _passingly_, like you did above. There certainly is a difference between being an occupied territory and being a fully integrated part of the multinational country which Ukraine was at both those periods. This in no way undermines your main thesis that not having much experience with democracy is an important legacy of Ukraine.

By Burachek on Jun 11, 2009

It is indeed a side issue.

It seems to be that “being a fully integrated part of a multinational country” would be – voluntary.

It also seems to me that “occupation” occurs by force.

And it also seems to me that Ukraine was, in fact, occupied.

Because the “multinational country” was not, in fact, multinational, it was the USSR, designed to eradicate all nationalities except some sort of twisted version of Rashan Homo Sovieticus.

And it was kept together by force – at the point of a gun and the KGB, at the point of gulags, and at the point of “psychiatric hospitals.”

And many of the people didn’t want occupation – the Hungarians in 1956, the Czechs in 1968, for example.

And if your mother has been sent to a gulag – it’s not really a side issue.

By elmer on Jun 12, 2009

Elmer, you are right.
The only thing I’d like to refine – in addition to brute force, fear, this artificial conglomerate seemed to be “voluntary” (and in most cases really was understood by ordinary people as “voluntary” and “free”) due to cynic and sophisticated propaganda, so-called “iron curtain” as well as an informational and communicative “wall” from the West, “ideological” system of education starting from early childhood and including all means of psychological influence – literature, art, music, movies – it cannot be explained in few lines.

By Yuri_D on Jun 12, 2009

Dear Elmer and Yuri, the last thing I had on my mind was to start a hot political debate on whether the condition of Ukraine in the Russian Empire and the USSR can rightfully be called “occupation”. The latter is a rather loaded term and its applicability to the condition of Ukraine for the last 300 years can certainly be discussed but that would be a separate and long discussion rather than a detraction taking us away from the main topic of this post, that is Ukrainian democracy being young and immature. The latter is due to the fact that until recently Ukraine was a part of the authoritarian country and whether Ukraine ended up in that country voluntarily by Alexei Mikhailovich acceding to the pledge of Bohdan’s starshyna or by conquest does not in any way affect the end result. Same applies to the creation of the USSR of which Ukraine was a constituent republic and whether the leadership of Ukraine who took action in creation of the USSR had more or less right to represent the Ukrainian population than the defeated and exiled Petlura, who allied himself with Poland instead of Russia, can also be discussed.

All I said was that what matters in _this_ original discussion is the fact that Ukrainian democracy is indeed young and this affects what electoral system is optimal under present condition. As for the “occupation” issue, I only meant to say that this is a loaded term and its being debatable makes its use in a passing form a poor choice.

Finally, Elmer, I truly sympathize if your mother became a victim of the Soviet repressive regime. This is indeed horrible. Note, however, that this became possible simply because Ukraine was ruled by a totalitarian regime at that time not because of a specific way this regime ended up ruling Ukraine. My “side issue” remark was only made to emphasize that this is not the central topic of this thread, which was the immaturity of the Ukrainian democracy. In no way I meant to offend anyone.

By Burachek on Jun 12, 2009

It was my friend’s mother who was sent – as were many mothers.

And fathers.

2 of my uncles were “guests” in the sovok labor camps.

I call that an occupation.

No debate required.

By elmer on Jun 13, 2009

The first-past-the-post voting system is outdated and undemocratic in its design and implementation. It must be rejected outright in all its forms.

Local Electorates

Elmer stated above:

“eliminate the party list system. Create voting districts for the Rada. That way, when you go to vote for a member of Parliament, and you elect a representative from your district, you know that he is accountable to you, and to everyone in the district – not to the party.”

This is partly correct but fails to understand the role played by the political parties in the formation of public policy and political stability.

Yushchenko’s model for reform

The proposals for constitutional advocated by Viktor Yushchenko are anti-democratic would be a backward step and further dividing Ukraine and fuelling civil and political unrest. Yushchenko’s proposed reforms would see the restoration of Presidential autocracy/dictatorship where the President would have absolute power and control over Ukraine’s parliament, Government, defence, police and the courts. Yushchenko’s proposed Senate and the re-introduction of first-past-the-post majoritarian voting system would further diminish democracy in Ukraine’s representational structure.

(See http://ukraineccu.wordpress.com for more detailed assessment and review of Yushchenko’s Constitutional reform)

Preferred Alternative

For a representational structure to be effective it must first and foremost reflect and represent the people of Ukraine.

It must be fair, balanced and equal.

The establishment of local based electorates would allow for greater participation and involvement in the political process, improved accountability and better representation whilst maintaining diversity. the 10% quota would eliminate the need for an artificial threshold and the introduction of preferential voting would restore democratic rights to those parts of the electorate that disenfranchised by the current voting system.

Ukraine should create 30, 40 or 50 multi-member electorates with each electorate returning nine members of parliament elected by a system of Single Transferable Voting (STV) proportional Representation using what is referred to as the Meek Method of counting and a quota of 10%

Such a model would reflect accurately the divisions in Ukraine and provide equal opportunity for democratic accountable government.

The main requirement is that each electorate must be equal no only in the number of constituents but also in the number of representatives elected. The voting system must empower the electorate not disenfranchise them.

Bicameral parliament

If Ukraine is to adopt a bicameral parliamentary system then the lower house should be comprised of local constituents and the Senate should be a national house where senators are elected by the nation as a whole again with the use of a Single Transferable “preferential” voting system and the adoption of the Meek method of counting the vote.

Principles in determining a democratic representational model

The design of a representational structure must be predicated on the principles of equality, fairness and democracy not on the perceived political outcomes that may favor one party or section of electorate above another. The system must reflect the diversity, will and aspirations of all voters.

The above outlined alternative model fulfills the requirements of a good democratic representation

By UkrToday on Oct 10, 2009

Parliamentary reform: What Ukraine should not do

Back in June the Venice Commission reviewed a draft legislation on Parliamentary Elections proposed and submitted by the Ukrainian Parliament Committee on State Building and Local Self-Governance.

The system proposed in the draft law provides for 450 parliamentarians to be elected under a form of proportional representation that uses territorial election districts, including a foreign territorial election district where ballots are cast by out of country voters. Under the proposed system, most members of parliament will be elected from national lists, with the mathematical possibility for individual political party candidates to be elected within an in-country territorial election district from a territorial list.

The proposed model, as commented in the Venice Commission’s report, is very convoluted, complex and over engineered. It seeks to reinstate a “hybrid representative model” which is extraordinary and unnecessarily complex in its implementation.

Under the proposals put forward, Ukraine’s parliament would be made up of a representatives elected from a single party list but with the allocation of a proportion of the list being determined by local regional elections (the exact boundaries and composition not yet decided). The MMP system is so complex I do not think it is worth trying to unravel and explain in detail. It is a good example as how Ukrainian politicians try to manipulate the system to deliver a solution that is not a solution.

Hybrid systems such as MMP do not work. They create a distortion and inequality of the representative model which in turn distorts the balance of representation by creating super-sets and sub-sets of mandates

Those elected on a National List will hold a separate and significantly different mandate then those elected by the regional local list. This system did not work in the old parliament prior to the reforms of 2004. The proposed system, as complicated as it is, will also fail.

The temptation to try and manipulate and over engineer Ukraine’s parliamentary model must be resisted – its a fools paradise and in the long run will not work

Yes there is merit in adopting and establishing local multi-member proportional representational electorates – but the hybrid mix of different mandates in a single house Parliament has no merit or justification. If Ukraine believes they need National representatives to complement local representatives then they are best to adopt a bicameral system with one house elected on the basis of local representation (preferable the lower house) and the second house (Senate) elected on a national basis.

The main criteria in assessing any representative model is that each elected position MUST be equal in representation and must be based on sound democratic principles. Each local electorate MUST return the same number of representatives elected on the same quota percentage and where possible have the same number of constituents (+/- 5%).

Ideally each local electorate would return either 5, 7 or 9 members of parliament and be elected by a system of “Single Transferable vote” preferential proportional representation using the Meeks method of counting the vote. What ever number they settle on each electorate MUST be the equal and on the based on the same quota percentage for the system to work at its best. (See previous post – Principles of a good, workable and democratic representative Parliamentary model)

The proposal of creating a “Foreign representational” electorate is another foolish reaction to a problem that does not exist. The number of Ukrainian foreign voters is marginally small. If need be foreign voters should be able to cast a vote for the local regional electorate in which they were previously registered or lived, there is no need to create a special electorate to accommodate their needs.

Need to fix the date for elections

The other change that must be made and has been overlooked is the need to fix a set date for elections. This provision of having elections set for the last Sunday of the last month of the term of office of the Parliament, as we have seen with the current presidential elections, is not effective or desirable. A fixed date say last week in October would be a better option. Any preterm election could have their term cut short to ensure that the October date is the cut off point. Presidential elections if they are to continue should also be brought into line with the adoption of a similar fixed date.

Hopefully the legislation as proposed will not see the light of day and Ukraine will stop trying to over-engineer the outcome of elections and concentrate more on winning public support based on a fair and equal electoral model.

By UkrToday on Oct 10, 2009

workable and democratic representative Parliamentary model

At a direct cost of over 1.5 billion hryvina’s plus an additional 1.5 billion in candidates’ campaign costs its a shame that Ukraine did not support a parliamentary appointment or adopt a preferential voting system.

Yushchenko’s proposed constitutional reforms are not what I would call democratic or worthy of support. “Wrong direction backward step”
Principles of a good, workable and democratic representative Parliamentary model

1. Ukraine MUST become a full parliamentary democracy in line with other European states.
2. Ukraine would be best adopting a unicameral parliament with multi-member local electorates.
3. Each electorate should be equal (within +/- 5%) in the number of constituents.
4. The system of election should be “Singe Transferable Vote” – Preferential Proportional Representation.
5. The method of counting the vote should be by the Meek’s method.
6. Each electorate MUST have the same number of representatives elected.
7. It is essential that each electorate is equal in representation
8. Each electorate should elect either five (5), seven (7) or nine (9) members of parliament (Rada).
9. The quota for election would be 16.67%, 12.50% or 10.00% respectively.
10. The Head of State should be appointed by a constitutional majority of 60% of the parliament as is the case in Moldova and Greece.

“Where there is no counsel the people fall but in the multitude of counsellors there is safety”

The Prime-minister and government ministers to be elected from the Parliamentary governing coalition along the lines of the British Westminster system or other European Parliaments

The role of Ukraine’s head of state should be a unifying and supportive ceremonial role with limited administrative power.
Analysis indicates that Ukraine would be better represented by the above model.

The above model is by far more preferable and more democratic then the model proposed by Yushchenko. It takes the best of all systems. Ukraine would the leader in democratic representation.

Power must be held in the hands of the peoples elected representative parliament.
It MUST scrap the two round “first past the post voting system” and adopt a preferential ballot.

By UkrToday on Oct 11, 2009

Whilst Yushchenko spouses the words of democracy his actions and policies are far from being democratic or constitutional.

In a desperate attempt to regain relevance Yushchenko wants his version of the constitution to be put to referendum at the next Presidential election in which he hopes to control the agenda.

The devil is in the detail and there is no way the Constitution, without wide support, can be properly debated and understood. The time to debate reform has passed and most certainly should not be the main focus of the Presidential campaign.

The issues are complicated and require proper consideration as to the alternatives and impacts of the proposed changes. They can not and should not be considered as part of the Presidential election campaign as much as Yushchenko would like to have his proposed reforms the focus of the campaign.

Which ever candidate advocates one way or the other support or disagreement on Yushchenko’s model they will be judged not on the real issues confronting Ukraine but on the notion of President versus Parliament. What would happen if Yushchenko complied with the ruling of the courts and held a referendum during the Presidential election on the question of Ukraine’s membership of NATO?

Power corrupts and absolute power corrupts absolutely.

Under Yushchenko’s proposed Constitutional reforms the President would have absolute authority and control over Ukraine’s courts, the appointment of the government and even the parliament without proper checks and balances.

The President would have the right to dismiss Ukraine’s Parliament at any time if its not to his liking. Whilst parliamentary immunity is removed, immunity for Judges and the President remains in tack with the President’s immunity made absolute by making it impossible to impeach the President except only on conviction resulting from a deliberate intention of committing a crime – Breaches of oath and Ukraine’s Constitution no longer are taken into consideration as grounds for the President’s impeachment. Further more the only body that can impeach the President is Yushchenko’s proposed Senate of regions.

The structure of the Senate, based around Ukraine’s existing oblasts, would seriously divide Ukraine stretching it to breaking point by giving an unfair representational bias towards Western Ukrainian regions at the expense of Ukraine’s more populous Eastern and Southern regions. This disproportional representation would be a recipe for disaster fueling disunity and distrust exacerbating the tensions that already exist.

Yushchenko’s Senate will require national elections with one third of the Senate facing reelection every two years, along with the associated costs in holding an election. Senators will be elected by a undemocratic outdated first-past-the-post voting system with the same group of electors, who have the highest vote, electing all three regional representatives. The majority (50% or more) will go unrepresented. (Eg in 2007 in Zakapattia oblast Yushchenko’s Our Ukraine secured less then 34% of the regions votes but was still the highest polling party and as such would win all three Senate positions with only 152,000 votes. Whilst in Donetsk Party of Regions with over 1.7 Million votes would also only elect three senators)

What’s more Yushchenko seeks to grant himself a senatorial position for life, even if he is voted out of office he still will have a seat and salary in Ukraine’s Senate – For life.

When making an assessment of any proposed constitutional reform you need to ask yourself what would the effect of these changes be if the person you do not support is elected to office and holds absolute power without checks and balances to limit abuse of Presidential authority.

By UkrToday on Oct 11, 2009

“The Constitution submitted by the President of Ukraine to the Verkhovna Rada of Ukraine on 13 March 2009. The text of the draft appears in document CDL(2009)068. It was obviously translated hastily and the text is often scarcely comprehensible. Some remarks made in this Opinion may be due to problems of translation.”

“Under the terms of Article 155 of the current Constitution any constitutional reform has to be approved by a two-thirds majority in the Verkhovna Rada, amendments to Chapters I, III and XIII of the Constitution in addition have to be approved by a referendum. The present draft is the proposal of a new version of the Constitution, which- while often similar to the present text- contains amendments to all Chapters. It thus requires for its adoption both the two-thirds majority of the constitutional composition of the Verkhovna Rada and approval by referendum.”

The proposed amendments to Ukraine’s Constitution by the President of Ukraine

1. 1. significantly alters the balance of power and constitutional representation in Ukraine;
2. 2. seeks to establish Ukraine as a semi Presidential system of governance;
3. 3. the proposed creation of a Senatorial bicameral Parliament establishes Ukraine as a federation of disproportionate administrative regions and as such is undemocratic in its design and implementation.

The representational model for the proposed Senate does not meet current European standards or democratic values.
The disparity between electorates with the same level of representation denies Ukraine the right of one vote one value.

The disparity in representation is further exacerbated as a result of the proposed use of first-past-the-post method of voting in electing Senate candidates.

The three two-year staggered Senatorial terms of office further diminishes the representational model which in turn undermines public confidence in the authority and democratic composition of the proposed Senate

The President is granted a Senatorial position for life even if he/she has been voted out of office and not elected to a second term;

1. 4. there is no provision for the purouging of the Senate or double dissolutions of both houses of parliament;
2. 5. diminishes and restricts the rights and authority of the Parliament to hold parliamentary inquiries;
3. 6. does not address a number of issues already identified by the Venice Commission in review of the V Shapoval draft proposals;
4. 7. removes a number of significant checks and balances against the misuse and abuse of Presidential authority. Most notably the changes to the impeachment procedures or the President; The President can only be impeached by the Senate if the President has intentionally committed a crime.The President would not be held accountable or subject to impeachment for breaches of oath or Ukraine’s Constitution as is the case in the grounds for dismissal of Judges;
5. 8. the President appoints and dismisses 100% of Ukraine’s Constitutional Court Judges;
6. 9. fails to address a number of significant issues and points of conflict in the current constitution;

10. does not provide for stable or democratic governance

By UkrToday on Oct 11, 2009

It is also important to not that under Ukraine’s constitution can only be amended with the consent and agreement of two-thirds of Ukraine’s parliament.

Any proposed amendments must come from the parliament. Ukraine’s constitution can not be amended by the referendum alone short of a unconstitutional political coup.

Chapter XIII

Introducing Amendments to the Constitution of Ukraine

Article 154

A draft law on introducing amendments to the Constitution of Ukraine may be submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no fewer People’s Deputies of Ukraine than one-third of the constitutional composition of the Verkhovna Rada of Ukraine.

Article 155

A draft law on introducing amendments to the Constitution of Ukraine, with the exception of Chapter I — “General Principles,” Chapter III — “Elections. Referendum,” and Chapter XIII — “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.

Article 156

A draft law on introducing amendments to Chapter I — “General Principles,” Chapter III — “Elections. Referendum,” and Chapter XIII — “Introducing Amendments to the Constitution of Ukraine,” is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and on the condition that it is adopted by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and is approved by an All-Ukrainian referendum designated by the President of Ukraine.

The repeat submission of a draft law on introducing amendments to Chapters I, III and XIII of this Constitution on one and the same issue is possible only to the Verkhovna Rada of Ukraine of the next convocation.

Article 157

The Constitution of Ukraine shall not be amended, if the amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine.

The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency.

Article 158

The draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than one year from the day of the adoption of the decision on this draft law.

Within the term of its authority, the Verkhovna Rada of Ukraine shall not amend twice the same provisions of the Constitution.

Article 159

A draft law on introducing amendments to the Constitution of Ukraine is considered by the Verkhovna Rada of Ukraine upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution.

By UkrToday on Oct 11, 2009

Summary to the Opinion of the Constitutional Court of Ukraine no.1-v/2005 as of September 7, 2005

According to the Article 85.1.1 of the Constitution, the authorities of the Verkhovna Rada of Ukraine comprise “introducing amendments to the Constitution of Ukraine within the limits and by the procedure envisaged by Chapter XIII of this Constitution”. In particular, requirements to such amendments are laid down in articles 157 and 158 of the Constitution.

Article 158.1 of the Constitution stipulates that a draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than in one year from the day of the adoption of the decision on this draft law. Article 158.2 of the Constitution envisages that within the term of its authority, the Verkhovna Rada of Ukraine shall not amend the same provisions of the Constitution twice.

The Verkhovna Rada of Ukraine did not consider the provisions of the draft law on introducing amendments to article 119 of the Constitution; also, the draft law was not the subject of voting for adoption with at least two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine in the part of articles 118, 133, 140, 141, 142 and 143 of the Constitution.

Provisions of article 85.1.29 of the Constitution remained unchanged, as the Law of Ukraine “On Introducing Amendments to the Constitution of Ukraine” no.2222-IV as of December 8, 2004 replicates the current version of the Constitution.

Amendments to articles 85, 118, 119, 133, 140, 141, 142 and 143 of the Constitution initiated by the draft law are neither oriented towards the liquidation of the independence nor to the violation of the territorial integrity of Ukraine; and therefore, they comply with requirements of article 157.1 of the Constitution of Ukraine.

The draft law deals with provisions of article 85.1.29 of the Constitution, which establish the authorities of the Verkhovna Rada of Ukraine in the sphere of the administrative and territorial structure of Ukraine. The Constitutional Court of Ukraine has already considered the said proposals and recognized them as complying with article 157 of the Constitution of Ukraine (Opinion of the Constitutional Court of Ukraine no. 1-v/2003 as of October 30, 2003).

The proposed wording of article 118 of the Constitution provides for withdrawal of rayon state administrations from the system of executive bodies; procedure for cancellation of decisions of heads of local state administrations, if they conflict with the Constitution and laws of Ukraine, other legislative acts of Ukraine; replication of the current provisions of Articles 118.4, 118.5 of the Constitution (on appointment and responsibilities of heads of local state administrations). Provisions of current articles 118.9, 118.10 of the Constitution shall be transformed into the new wording of article 118.6 of the Constitution. The new wording of article 118 of the Constitution does not cancel or restrict human and citizen’s rights and freedoms.

However, new wording of article 118.1 of the Constitution, according to which local state administrations shall represent the executive power, is disputable. The term “represent”, in contrast to the term “exercise” as used in the current wording of article 118, fails to comply with functional characteristic of local state administrations as determined by article 119 of the Fundamental Law of Ukraine.

At the same time, the Constitutional Court points out that article 95.1 of the Constitution, which deals with the budgetary system of Ukraine, preserves the notion of the territorial community, which conflicts with definition of the “community” given in the proposed wording of article 133 of the Constitution.

Proposed amendments to articles 119.4, 119.7, 133, 142.1, 142.2, 143.1 and 143.2 do not cancel or restrict human and citizen’s rights and freedoms.

Proposed amendments to article 140 of the Constitution mainly deal with new definition of a community as an administrative and territorial unit. The Constitutional Court has already considered such provisions and recognized them as complying with requirements of part one article 157 of the Constitution (Opinion of the Constitutional Court of Ukraine no. 1-v/2003 as of October 30, 2003).

The Constitutional Court of Ukraine considers that proposed article 140.1 of the Constitution reading that local self-governance shall be secured by the law, fails to comply with article 7 of the Constitution, which stipulates that local self-governance is recognized and guaranteed in Ukraine. That is, the Constitution in force gives better guaranties than the proposed amendments.

Article 140.6 of the Constitution in the new wording reads that grounds and procedure of the delegation of authorities of governmental bodies to local self-government bodies shall be established by the law. This provision fails to comply with article 143.3 of the Constitution, which provides for assignment, not delegation of certain powers of executive authorities to bodies of local self-government by law and reads that the State shall finance execution of these powers.

Proposed amendments to article 141 of the Constitution give definition of a community (village, settlement and city) as an administrative and territorial unit and bring term of office of heads of communities in compliance with the term of office of deputies of local councils. The Constitutional Court of Ukraine regards these amendments as providing no cancellation or restriction of human and citizen’s rights and freedoms.

At the same time, the Constitutional Court of Ukraine believes that the law should define mechanisms of operation of rayon state administrations, local self-government bodies until new compositions of local councils and other local self-government bodies are established in accordance with the Law.

Thus, the Constitutional Court of Ukraine recognized the draft law of Ukraine “On Introducing Amendments to the Constitution of Ukraine” (no. 3207-1), which suggests to amend articles 85.1.29, 118, 119.4, 119.7, 133, 140, 141.2, 141.4, 142.1, 142.2, 143.1, 143.2 of the Constitution as complying with the requirements of articles 157 and 158 of the Constitution. The Law shall take effect after the regular elections to the local councils of the fifth convocation in March 2006.

By Constitutional Court of Ukraine on Oct 11, 2009

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