Imperative mandate estranges Ukraine from democracy

Although the legislation of all EU member countries, without any exception, directly prohibit an imperative mandate, initiators of such a reform in Ukraine paid no attention to this fact.

Establishment of democracy in Ukraine is not only an incomplete but sometimes an inconsistent process. It became clear on January 12, 2007 when the Verkhovna Rada adopted amendments to a number of Laws on the Status of local MPs. It was the completion of conferring local MPs imperative mandates.

Only MPs of village councils appeared to be beyond the imperative mandate.

An imperative mandate has gradually won its positions, beginning from the Orange Revolution, though strange as it may seem.

[1] THE FIRST STEP. The Political Reform produced by an authoritative regime was the first step in this direction. Amendments to the Constitution  of Ukraine introduced an institution of an imperative-type mandate for MPs, which was new to the country.

Although the legislation of all EU member countries, without any exception, directly prohibit an imperative mandate, initiators of such a reform in Ukraine paid no attention to this fact.

So, the state has granted political parties an unprecedented right of depriving a lawmaker of the deputy`s mandate if he/she has lost ties with the party faction.

Dynamics of changing factions in the Verkhovna Rada of the last convocation was really intense which became one of the main problems of its political structuring.

However, to resolve the problem of changing faction the political parties have been granted the right to deprive an MP of his mandate on the great variety of grounds.

Even without any reasons it would be possible to exclude the lawmaker from the faction. It is doubtful if this specific approach will resolve existing problems or cause even more new ones.

However, the author states: none of the countries has such a norm in their legislative system.

The European constitutional practice has rejected the procedure of recalling an MP by the voters, it goes without saying about political parties.

It seems not enough for Ukrainian supporters of an imperative mandate, so they decided to apply it to the lawmakers of city councils.

Ukrainian lawmakers paid no attention to the fact that even the Russian Federation gave up such an idea in 2005 when Vladimir Putin refused to introduce an imperative mandate, fearing of a negative response of the international public that would discredit his country.

[2] THE SECOND STEP. If the parliament made the first step because  it had to adopt amendments to the Constitution of Ukraine in a packet with the Law on the Presidential elections which provided a legal basis for the third stage of presidential election 2004, now the situation has drastically changed.

If in December 2004 part of the parliament consented to such amendments for the sake of overcoming the ongoing political crisis, now a parliamentary-governmental coalition alongside with part of the opposition has purposely and defiantly introduced an imperative mandate for local MPs, being aware the civilized world does not accept it.

Those who think the political parties have got a leverage effect on undisciplined MP are mistaken.

If you read the amended Article 5 of the law it becomes clear that the highest ruling body of the party (bloc) is granted the right to recall a local MP (except for deputies of village councils) on a fairly vague basis.

To be precise, the powers of a local MP may be terminated is case he:

     1) failed to submit an application of admission to the deputy faction of the relevant local political organization (bloc) under the list of which he was elected a deputy of the local council;

     2) left a deputy faction (resigned at his own will or joined another deputy faction);

     3) is recalled on other grounds set by the highest governing body of a political party (bloc)

Thus, the Law sets two grounds to terminate powers of a local MP. Besides, it grants a political party the right to set any other reasons for that at its own discretion.

Reviving a Soviet tradition, the grounds for termination powers of the Crimean deputies are even more obscure.

These are not only `violation of the Constitution of Ukraine and other legislative acts`, `unsatisfactory duty performance`, `jobbery` and even `systematic violation of moral and ethical norms` (item 2 of the law).

Obviously, a Ukrainian lawmaker does not clearly know that `violation of Ukrainian legislation` may be both speeding and crossing the street on a red light, it goes without saying about `violation of ethical norms`.

With all due respect to moral nobody knows the nature of these norms. For instance, a part of the society seriously believes it is amoral for the local lawmakers to take part in the decision making concerning allocation  of land plots for individuals without auctions.

However, MPs and political forces that support them do not think so. Inaccurate wording of the law causes free interpretations and random application of its norms.

However, final provisions of this law unveil real intention of Ukrainian lawmakers.

"This law comes into force from the date of its publication and applies to local MPs (except for lawmakers of village councils) elected on March 26, 2006, as provided by the Law on Election of People`s Deputies of the Autonomous Republic of Crimea, city councils and head of village councils."

The political parties are eager to exclude those lawmakers who left the party factions just after March 26. Of course they will not take into account inconsistent political basis and political course of the party itself.

Shuffle of the deputy staff and actual altering of the local election outcomes will become another political phenomenon in Ukraine that will carry it away from democracy and European values of constitutionalism.

This law will enable 4-5 leaders of political parties (blocs) to control deputy staff of local city councils after elections.

It has nothing to do with a modern European democracy. The problem is  that the parliament is more likely to override a possible presidential veto on this law.

Local MPs may hope for the provision of the Constitution of Ukraine that stipulates: "Laws and other legislative acts cannot be retrospective unless they extenuate or relieve a person of responsibility." (Article 58)

However, it will happen only in case the Constitution of Ukraine and mechanisms of its protection become stimulating factors for the aggressive political forces, most of which are non-democratic organizations with a shady financing and structure.

ANALYSIS & COMMENTARY: by Vasyl Lemak, Doctor of Legal

Sciences, Professor of Uzhgorod National University, for UP

Original article in Ukrainian translated by Eugene Ivantsov

This article was monitored by the ArtUkraine Monitoring Service for the Action Ukraine Report, E.Morgan Williams, the editor.

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