WHY THE KIEV JUNTA
IS ILLEGAL:
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Ukraine has withdrawn from performing constitutional authorities, which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Yanukovych has in the non-constitutional manner withdrawn from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 and US Governments (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 said similar things since, though with less and less emphasis on the
constitutionality of the Rada’s actions in overthrowing Yanukovych and
establishing the present regime. This is
understandable, since, as shown in 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 Ukranian constitution does
allow the Rada to remove an elected President from power before the end of his
term of office, if he has committed serious crimes, certified as such by the
Supreme Court of Ukraine. But this must
be done by following an impeachment procedure laid down in Article 111 [3]
of the constitution. 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 condideration.
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
- the Constitutional Court of Ukraine to review the case and certify that the constitutional procedure of investigation and consideration has been followed, and
- the Supreme Court of Ukraine to certify that the acts of which the President is accused are worthy of impeachment, that they “contain elements of state treason or other crime”.
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 Rada appointing an 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:
- appointment of cabinet ministers and regional governors (subparagraph 10)
- appointment of chief prosecutor (subparagraph 11)
- granting pardons (subparagraph 27)
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.
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 new head of Ukraine’s National Security and
Defence Council, he was hounded out of office.
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
(Research conducted by Dr David Morrison, Queens University
Belfast, Northern Ireland)
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