Election Update #14
June 6, 2006.
Constitutional procedures for Forming the Parliamentary Majority and Government and Potential Legal consequences of Non-compliance
The Fifth Convocation of the Verkhovna Rada (Parliament) of Ukraine officially convened on May 25, 2006. From this day the clock began ticking on formation of a parliamentary coalition and Cabinet of Ministers (Government) in accordance with the provisions of the Constitution of Ukraine as amended in December 2004. Non-compliance by Parliament with constitutional requirements will give the President grounds to dissolve Parliament and call a pre-term election.
In accordance with Article 83, Para. 4 of the Constitution, the business of Parliament is governed by the Constitution of Ukraine and the Rules of Parliament.
On March 16, 2006 the Parliament of the Fourth (previous) Convocation adopted new Rules in accord with the Constitution as amended on December 8, 2004. The Rules regulate, among others, the formation of deputy factions (articles 57 - 60) and the order of establishment, business and changes to coalitions of deputy factions (articles 61 - 67).
The above provisions, when taken together, provide a clear algorithm for the work of Parliament during the first two months of the convocation's business:
1. Current state of factions in Parliament - Five factions have been established in Parliament corresponding with the March 26, 2006 election results:
Party of the Regions Faction: 185 Members of Parliament
Yulia Tymoshenko Bloc Faction: 129 MPs
"Our Ukraine" Faction: 80 MPs
Socialist Party of Ukraine Faction: 33 MPs
Communist Party of Ukraine Faction: 21 MPs
The Rules require a minimum of 21 MPs for a parliamentary faction. Any faction with membership less than this number will be dissolved.
2. Formation of a coalition of deputy factions - According to Article 83, Para. 5 of the Constitution, one month is provided to Parliament for formation of a coalition of deputy factions (articles 61 & 62 set out 30 days for this purpose). He deadline for coalition formation is thus 2400 on June 23, 2006 (per Article 62 of the Rules). The procedures of formation are clearly delineated. Faction leaders are required to sign the coalition agreement and annex lists of members of the deputy factions, signed by each MP. The documents are to be read out in plenary session by the session chair (at this time it appears clear that MPs will not have elected a Parliament Chair before the coalition is announced, thus the person reading out the agreement will be a member of the Temporary Presidum currently co-chairing Parliament. In the event a coalition of deputy factions is not formed within the time allotted, the President has the right (though not the obligation) to dissolve Parliament (Article 90, Para. 1.1 of the Constitution).
3. Election of the Parliament Chair and Deputy chairs - Although neither the Constitution nor the Rules require that a Chair be elected by a date certain, it would be impossible to comply with the procedure for forming a Government described in Article 64 of the Rules, without first electing a Chair. Therefore it is likely that a Chair (and Deputy chairs) will be elected by the MPs shortly after a coalition is formed.
4. Formation of the Government - In accordance with constitutional demands, on May 25, 2006 the current Government resigned (during the first plenary session of the Fifth Convocation of Parliament). Within 60 days of this date Parliament is required to form the new Government. The procedure for this action requires the Parliament Chair, acting on behalf of (by decision of) the parliamentary coalition, to submit a candidate for Prime Minister to the President. The President then submits this candidate to Parliament, and Parliament approves (or fails to approve) this candidate as Prime Minister. Next, Parliament appoints (by vote) specific ministers on the basis of candidacies submitted by the Prime Minister (except for the Minister of Defense and the Minister of Foreign Affairs, who are appointed (by vote) by Parliament on the basis of candidacies submitted directly by the President). The deadline for meeting these requirements is 2400 on June 23, 2006. In the event a Government is not formed within the time allotted, the President has the right (though not the obligation) to dissolve Parliament (Article 90, Para. 1.2 of the Constitution).
5. In the event that a coalition of deputy factions (governing coalition) ceases functioning (falls apart), or the Government resigns, the Constitution and Rules require Parliament to form a new coalition with one month (30 days) and a Government within 60 days. In the event of non-compliance the President has the right to dissolve Parliament.
The President may dissolve Parliament under the above circumstances only after holding consultations with the Parliament Chair and Deputy chairs, and deputy faction leaders. Any pre-term election is to be held not later than 60 days following publication of the relevant Presidential Decree (Article 77 of the Constitution).
P.S. - The President may, according to Article 90, Para. 1.3 of the Constitution, dissolve Parliament also if it does not meet for one month during a plenary session. This provision was extant before the December 8, 2004, constitutional reform, however experience has shown it is impossible to implement in practice.
P.P.S. - In the event that the President dissolves Parliament pre-term (for any reason), the convocation of Parliament that is elected at the pre-term election follow such dissolution, may not be dissolved until one year shall have passed since the conduct of such pre-term election (Article 90, Para. 3).