The US State Department has issued a statement of “President Putin’s Fiction: 10 False Claims About Ukraine”. Several of the State Department’s claims don’t hold water, but one in particular did strike me – and it goes to the heart of the problem in Ukraine.
“Fiction” number 4 says:
Mr. Putin says: Ukraine’s government is illegitimate. Yanukovych is still the legitimate leader of Ukraine.
The Facts: On March 4, President Putin himself acknowledged the reality that Yanukovych “has no political future.” After Yanukovych fled Ukraine, even his own Party of Regions turned against him, voting to confirm his withdrawal from office and to support the new government. Ukraine’s new government was approved by the democratically elected Ukrainian Parliament, with 371 votes – more than an 82% majority. The interim government of Ukraine is a government of the people, which will shepherd the country toward democratic elections on May 25th – elections that will allow all Ukrainians to have a voice in the future of their country.
Let’s have a look at the Constitution of Ukraine then.
There are four grounds upon which the President of Ukraine can have his authority terminated early:
2) inability to exercise presidential authority for health reasons;
3) removal from office by the procedure of impeachment;
4) his/her death.
Note the absence of any provision for termination because he is not present in the country!
Items 1, 2 and 4 clearly do not apply in this case. So the only way that President Yanukovich could have ceased to be President was if he was impeached.
The constitution also contains the process for impeachment:
Article 111. The President of Ukraine may be removed from the office by the Verkhovna Rada of Ukraine in compliance with a procedure of impeachment if he commits treason or other crime.
The issue of the removal of the President of Ukraine from the office in compliance with a procedure of impeachment shall be initiated by the majority of the constitutional membership of the Verkhovna Rada of Ukraine.
The Verkhovna Rada of Ukraine shall establish a special ad hoc investigating commission, composed of special prosecutor and special investigators to conduct an investigation.
The conclusions and proposals of the ad hoc investigating commission shall be considered at the meeting of the Verkhovna Rada of Ukraine.
On the ground of evidence, the Verkhovna Rada of Ukraine shall, by at least two-thirds of its constitutional membership, adopt a decision to bring charges against the President of Ukraine.
The decision on the removal of the President of Ukraine from the office in compliance with the procedure of impeachment shall be adopted by the Verkhovna Rada of Ukraine by at least three-quarters of its constitutional membership upon a review of the case by the Constitutional Court of Ukraine, and receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and upon a receipt of the opinion of the Supreme Court of Ukraine to the effect that the acts, of which the President of Ukraine is accused, contain elements of treason or other crime.
Thus the procedure is that the parliament votes (by a simple majority) to set up an investigating commission, which investigates and reports back to parliament.
Parliament then votes (by a two thirds majority) to bring charges.
The Constitutional Court then reviews the case and reports back to parliament. And parliament then votes (by a three quarters majority) to remove the President from office.
None of this has happened. Basically, the parliament simply voted to remove President Yanukovich and hold early elections.
Thus the removal of President Yanukovich from office is unconstitutional.
The constitution then explains what happens next, once a President is removed from office early:
Article 112. In the event of an early termination of the authority of the President of Ukraine in accordance with Articles 108, 109, 110 and 111 of this Constitution, the discharge of the duties of the President of Ukraine, for the period pending the elections and the assumption of the office by the next President of Ukraine, shall be vested on the Prime Minister of Ukraine. The Prime Minister of Ukraine, for the period of discharge of the duties of the President of Ukraine, may not exercise the powers stipulated by items 2, 6, 8, 10, 11, 12, 14, 15, 16, 22, 25, 27 of Article 106 of the Constitution of Ukraine.
So until a new President is elected by the people, the Prime Minister takes over. The office of “interim President of Ukraine” (currently held by Oleksandr Turchynov) does not exist. The parliament does not have the power to appoint an interim President. President Turchynov’s election as interim President is unconstitutional.
There’s more. What about those powers that the Prime Minister may not exercise while acting President?
Item 10 is:
10) appoint upon the submission of the Prime Minister of Ukraine the members of the Cabinet of Ministers of Ukraine, Heads of other central executive power bodies, as well as the Heads of local state administrations and shall terminate their authority in these offices;
Thus Mr Yatsenyuk’s appointment of his cabinet is unconstitutional.
What about the current Prime Minister then, Arseny Yatsenyuk?
He was appointed by Parliament. Let’s see then if that was in accordance with the constitution:
The Prime Minister of Ukraine shall be appointed by the President of Ukraine upon the consent of more than a half of the constitutional membership of the Verkhovna Rada of Ukraine.
The parliament has no power to appoint the Prime Minister – they simply approve the appointment made by the President. And as we saw above, the “interim President” does not exist. Thus the selection of Mr Yatsenyuk as Prime Minister is unconstitutional.
It seems then that the entire government of Ukraine is unconstitutional, and that Mr Putin’s “fiction” number 4 is actually fact. This matters – or should matter to a country like the United States, that is dedicated to its own constitution.
I do accept that nit-picking over constitutional details is a bit silly in a fluid and dangerous situation like the one in Ukraine. It is also reasonable to argue that the Ukrainian constitution does not really cover situations like the current one in Ukraine. But if the US-backed government in Kiev is unconstitutional, then the US would do well to lay off accusations that the Russians have acted illegally in the Crimea.