Commission for Strengthening Democracy and the Rule of Law – Venice Commission

The Venice Commission, when looking at the proposed new law on the Public Prosecutors Office of Ukraine, has in summary, made it clear that whilst the new law goes a long way to improving matters and generally brings Ukraine into EU norms (with the need for some clarifications in the text – although not that much), it will ultimately also require changes to the Constitution of Ukraine as well.

The full conclusions of the Venice Commission regarding this proposed law can be found here.

The need to change the Constitution of Ukraine lays within Articles such as this:

Article 122“The public prosecution of Ukraine shall be headed by the Prosecutor General of Ukraine, appointed to or removed from office by the President of Ukraine subject to the consent of the Verkhovna Rada of Ukraine.  The Verkhovna Rada of Ukraine may express the non-confidence in the Prosecutor General of Ukraine, which shall entail his resignation from the office.

The term of the powers of the General Prosecutor of Ukraine shall be five years.

Thus whilst the proposed law seeks to make the Prosecutor General much less beholding to political whims by  clearly identifying status, disciplinary, suspension, termination and dismissal systems, the Constitution of Ukraine indeed makes the holder of that office subject to political whims regardless of the systems and procedures laid down in the proposed new law.

Changes to the Constitution are necessarily not easy to achieve.

The election campaign of Party of Regions has concentrated on the constituency seat elections rather than party in broader brush strokes as it is seeking to get 300 MPs – the number required to achieve constitutional change.

If the allegations of the United Opposition toward UDAR after pulling out of the single opposition candidate per constituency seat plan is valid, and indeed by doing so a few dozen more seats will fall to Party Regions because of a split opposition vote as they claim, then with those additional few dozen seats it will give the Party of Regions, together with the Communist Party allies, very close indeed to the required 300.

I stated some months ago I anticipated Party of Regions to win between 210 and 220 RADA seats.  If the United Opposition are correct and a further 24 or so can now be added to that number due to their failure to convince UDAR to work with them, then we could be looking at about 250 RADA seats.  When coalition partner, the Communist Party’s RADA seats are then added, a Constitution changing majority becomes a real possibility.

Much depends on whether the United Opposition’s rhetoric will turn into reality – and one has to suspect they simply realise they have lost this election and the actions of UDAR are something to point a finger at and blame for that failure rather than to look at themselves – but a Constitution changing majority is certainly a possibility if they are right about a few dozen additional seats now falling to Party of Regions.

If the dismal performance by the United Opposition, together with the surprisingly good performance of UDAR, do not result in a combination of 151 RADA seats or more, then this election will not have been a failure for the United Opposition, it will have been an unmitigated disaster.

I predicted the United Opposition would win between 150 and 170 seats when the electioneering began, but that was before it became apparent just how awful their campaign strategy was.  Now I am not certain they will get to 150 RADA seats in their own right and may very well need UDAR to assist them in reaching a Constitutional change blocking number.

If the combined opposition party numbers come to less than 150 RADA seats, then they will certainly rue pulling out of the committee that was set up by President Yanukovych, ironically at the request of Arseney Yatseniuk, to look at the very many necessary changes required in the Constitution to allow EU norms to prevail.

Due to their pulling out of this committee, which I have written about before, should the Party of Regions form a Constitution changing majority, then the changes will occur simply by being steamrolled through rather than agreed via committee – and that means both good and bad changes will occur from a United Opposition point of view.

One has to hope that if the United Opposition (and UDAR) do not reach 150 or more seats between them, that any changes to the Constitution will go via the Venice Commission for deliberation and recommendation, less the Constitution be bastardised beyond recognition to serve self-interests.

That said, no government, past or present, has ever implemented everything the Venice Commission has suggested and self-interest has always been paramount.  Something quite unlikely to change.

Returning to the issue at hand, we have a proposed law that is generally seen as good by the Venice Commission, bringing Ukraine into line with EU norms as far as the Prosecutor General (and office) is concerned but will require Constitutional change to be effective.

At the time of writing, changes to the Constitution are a political impossibility – though that may well change very shortly, quite possibly to the angst of the United Opposition – who would have themselves to blame for walking out on the Constitutional Assembly they wanted set up, and also for such a really dire campaigning strategy.

Let us hope for an opposition RADA count of 150 MPs or more so that any changes to the Constitution are necessarily agreed by consultation rather than forced through by sheer weight of numbers.

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