Why the Ukraine regime is wholly illegitimate

 

On 22 February 2014, the Verkhovna Rada (the Ukranian Parliament) passed the following resolution:

 

 

RESOLUTION OF THE VERKHOVNA RADA OF UKRAINE

“On self-withdrawal of the President of Ukraine from performing his constitutional duties and setting early elections of the President of Ukraine”

 

In view of the fact that the President of Ukraine has withdrawn from performing constitutional authorities, which threatens governance of the state, territorial integrity and sovereignty of Ukraine, as well as mass violation of citizens’ rights and freedoms and proceeding from the circumstances of extreme urgency and expressing the sovereign will of Ukrainian people, the Verkhovna Rada of Ukraine resolves:

 

1. To determine that the President of Ukraine V. Yanukovych has in the non-constitutional manner withdrawn from performing constitutional powers and is the one that does not perform his duties.

2. Under clause 7 of part one of article 85 of the Constitution of Ukraine, set early elections of the President of Ukraine for May 25, 2014.

3. This Resolution comes into force on the day of its adoption.

 

Chairman of the Verkhovna Rada of Ukraine   O.TURCHYNOV

 

 

This English text of the resolution is taken from the Rada website [1].

 

The passing of this resolution by the Rada is the sole basis for the claim by the British Government (and others)

(a)   that President Yanukovych was removed from office in accordance with the Ukrainian constitution and

(b)   that the legitimacy of the present regime in Kiev is beyond question.

 

Foreign Minister, William Hague, made this claim in the House of Commons on 4 March 2014, saying:

 

“Former President Yanukovych left his post and then left the country, and the decisions on replacing him with an acting President were made by the Rada, the Ukrainian Parliament, by the very large majorities required under the constitution, including with the support of members of former President Yanukovych's party, the Party of Regions, so it is wrong to question the legitimacy of the new authorities.” [2]

 

He and other British ministers have made similar remarks since, though with less and less emphasis on the constitutionality of the Rada’s actions.  This is understandable, since, as I detail below, it is as plain as a pikestaff that the Rada acted unconstitutionally in

 

(a)   removing President Yanukovych from power, and

(b)   appointing Olexander Turchynov as Acting President

 

Nevertheless, the new regime has been wholeheartedly endorsed by Britain – and by the US/EU.

 

Furthermore, since his appointment, Olexander Turchynov has regularly acted unconstitutionally by exceeding the powers of an Acting President as laid down in the Ukranian constitution.  An Acting President has much less power than an elected President, for example, he/she doesn’t have the power to appoint Ministers or regional governors. This is a reasonable constitutional provision, designed to prevent an unelected substitute for an elected president taking radical measures without a popular mandate, but allows him/her sufficient powers to keep government functioning until a new president is elected.  However, Turchynov has ignored these limitations and behaved as if he were an elected president, yet he retains the unstinting support of London, Brussels and Washington.

 

 

The Rada may impeach a president

 

The Ukranian constitution does allow the Rada to remove an elected President from power before the end of his term of office.  Article 111 of the constitution states:

 

“The President of Ukraine may be removed from office by the Verkhovna Rada of Ukraine by the procedure of impeachment, in the event that he or she commits state treason or other crime.” [3]

 

Article 111 goes on to specify the procedure which must be followed.  This is not unlike the procedure required for the impeachment and removal from power of a US president, which could take months.  This is a reasonable constitutional provision, since it would be absurd to allow a parliament to remove a popularly elected president on a whim without proper consideration.

 

The Rada may also remove an elected President from power under Article 110, if he is deemed unfit to exercise power due to ill health – and he/she may die or resign.  President Yanukovych didn’t die or resign, nor was he unable to exercise his powers due to ill health, so the only constitutional means of removing him from power before the end of his term was by following the impeachment procedure enshrined in Article 111.

 

 

Impeachment procedure

 

Article 111 obliges the Rada to establish a special investigatory commission to formulate charges against the president, seek evidence to justify the charges and come to conclusions about the president’s guilt for the Rada to consider.  To find the president guilty, at least two-thirds of Rada members must assent.

 

Prior to a final vote to remove the president from power, the procedure requires

 

 

To remove the president from power, at least three-quarters of Rada members must assent.

 

The Rada didn’t make any pretence of following the impeachment procedure enshrined in Article 111.  No investigatory commission was established and the Courts were not involved.

 

The Rada simply passed the resolution given above on 22 February, which gives the impression that the President voluntarily walked off the job (which isn’t true).  The resolution doesn’t mention impeachment or Article 111 of the constitution, but does invoke Article 85 of the constitution in order to set an early date for a presidential election.

 

Furthermore, the resolution which purported to remove the president wasn’t supported by three-quarters of Rada members as required by Article 111 – it was supported by 328 members, when it required 338 (since the Rada has 450 members).

 

 

Appointment of acting president unconstitutional

 

The constitution was also breached when it came to the appointment of Olexander Turchynov as Acting President on 23 February.  Article 112 specifies that

 

“the execution of duties of the President of Ukraine, for the period pending the elections and the assumption of office of the new President of Ukraine, is vested in the Prime Minister of Ukraine”.

 

On 22 February, Ukraine didn’t have a prime minister – Mykola Azarov had resigned as prime minister on 28 January (when efforts were being made by Yanukovych to bring the opposition into government) and he hadn’t been replaced.  Instead, the speaker of the Rada, Olexander Turchynov (a close ally of opposition leader and former prime minister Yulia Tymoshenko) was appointed as Acting President on 23 February.  He had become speaker the day before, upon the resignation of Volodymyr Rybak, an ally of Yanukovych, who resigned that morning because of ill health.  The BBC reported that, according to Yanukovych, Rybak “was forced to resign because he had been physically beaten” [4].  Whatever about that, Turchynov became speaker one day and Acting President the next, thereby securing the presidency for the opposition.

 

 

Acting president acting unconstitutionally

 

Under Article 112 of the constitution, the powers of an Acting President appointed by the Rada are much less than an elected President.  Article 112 says:

 

“The Prime Minister of Ukraine, for the period of executing the duties of the President of Ukraine, shall not exercise the powers envisaged by subparagraphs 2, 6, 8, 10, 11, 12, 14, 15, 16, 22, 25 and 27 of Article 106 of the Constitution of Ukraine.”

 

Powers not available to an Acting President include:

 

 

Nevertheless, Acting President, Olexander Turchynov, has appointed cabinet ministers and replaced nearly all the regional governors [5] and the chief prosecutor [6].  He had no authority under the constitution to do any of this.

 

(On 4 March 2014 in the House of Commons, William Hague commended the Acting President for appointing “new regional governors in Russian-speaking regions”.  He gave this as an example of the new regime “tak[ing] measures that unify the country and protect the rights of all Ukraine’s citizens, including minority groups”.  He did not seem to know that the Acting President was acting unconstitutionally in dismissing the existing governors and appointing new ones, nor that two of them, Igor Kolomoysky and Sergey Taruta, are oligarch supporters of the opposition.)

 

According to Article 94 of the constitution, laws passed by the Rada require the signature of the President to come into force, so no law passed by the Rada since 22 February has been enacted in accordance with the constitution.

 

 

Not a government of national unity

 

On 21 February, the day before President Yanukovych was unconstitutionally deposed by the Rada, the EU brokered an agreement [7] that provided for the transfer within 48 hours of substantial presidential powers to the Ukranian parliament and the creation within 10 days of a “national unity government”, which would remain in place until presidential elections were held.

 

(For details, see my article EU disavowal of 21 February agreement responsible for standoff between the West & Russia [8])

 

The agreement was brokered by  the foreign ministers of France, Germany and Poland (Laurent Fabius, Frank-Walter Steinmeier and Radoslaw Sikorski) acting on behalf of EU foreign policy chief Catherine Ashton (who was in Iran).  A Russian representative, Vladimir Lukin, was also present during the negotiations.

 

The agreement was signed by the leaders of the three main opposition parties, Arseniy Yatsenyuk (Fatherland) Vitali Klitschko (UDAR) and Oleh Tyahnybok (Freedom) and by President Yanukovych himself.  It was welcomed by the EU and the US – and by Russia.

 

But the opposition leaders reneged on the deal and, the next day, took part in the unconstitutional overthrow of Yanukovych, replacing him with an opposition figure, and established a “government” representative of the opposition and not a “national unity government” as provided for in the agreement.

 

 

EU blessed illegitimate regime

 

The EU stood idly by while this happened and blessed the illegitimate regime that came into being as a result, as did the US.  Its leaders have since enjoyed red carpet treatment in Brussels and Washington.

 

It was the EU’s disavowal of its 21 February agreement and the wholehearted endorsement by the US and the EU of the new regime that has led to the standoff between the West and Russia.

 

This endorsement took place despite the fact that the new “government” contains five ministers, including the deputy prime minister, from the Svoboda (Freedom) party, led by Oleh Tyahnybok, which was described by the European Parliament in 2012 as holding “racist, anti-Semitic and xenophobic views” that “go against the EU's fundamental values and principles” [9].  It seems to believe that Ukraine would be a better place without Russians and Jews.  According to the BBC, in 2005 its leader signed an open letter to Ukrainian leaders calling for the government to halt the "criminal activities" of "organised Jewry", which, the letter said, ultimately wanted to commit "genocide" against the Ukrainian people (see Svoboda: The rise of Ukraine's ultra-nationalists, 26 December 2012, [10]).

 

Nor has US/EU support for the new regime been inhibited by the fact that the head of Ukraine’s National Security and Defence Council is now Andriy Parubiy, who was a leader of the paramilitary forces that controlled Independence Square in Kiev.  His deputy is Dmytro Yarosh, the leader of Right Sector, a coalition of ultra-right groups.

 

In an interview with Die Welt on 18 March [11], Parubiy boasted:

 

“The Russians miscalculated.  They did not realise that we would suddenly be able to hound Yanukovych out of office in a matter of days.”

 

That comes from the horse’s mouth and gives the lie to the assertion in the resolution passed by the Rada on 22 February that Yanukovych had been guilty of “self-withdrawal … from performing his constitutional duties”, that is, he had voluntarily ceased carrying out his duties as president.   According to the head of Ukraine’s National Security and Defence Council, he was hounded out of office.

 

 

David Morrison

18 April 2014

 

References:

 

 

[1]  iportal.rada.gov.ua/en/news/News/News/88138.html

[2]  www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140304/debtext/140304-0001.htm

[3] www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEcQFjAE&url=http%3A%2F%2F

www.ccu.gov.ua%2Fdoccatalog%2Fdocument%3Fid%3D12084&ei=Qu4YU7WcGMTmywOq4YGQBA&usg=AFQjCNHKZt4ZFrE9kClMf8np7A-8mX6PBA&sig2=qemkVvKc4z0QE-tEmkQJ_Q

[4]  www.bbc.co.uk/news/world-europe-26304842

[5]  en.slovoidilo.ua/articles/1350/2014-03-10/novye-gubernatory-ukrainy-kto-est-chej.html

[6]  en.interfax.com.ua/news/general/192523.html

[7]  www.auswaertiges-amt.de/cae/servlet/contentblob/671350/publicationFile/190045/140221-UKR_Erklaerung.pdf

[8]  www.david-morrison.org.uk/ukraine/eu-21-february-agreement.htm

[9]  www.europarl.europa.eu/oeil/popups/summary.do?id=1239823&t=e&l=en

[10]  www.bbc.co.uk/news/magazine-20824693

[11]  www.welt.de/politik/ausland/article125905642/Russlands-Ziele-sind-die-Ukraine-und-Kiew.html