Maidan

Maidan volunteers are continuing to follow and report on the sessions of the Constitutional Court. The following is a summary of the main events of the day.
The session began late since demonstrators prevented the Judges from entering the building. While attempting to get inside, Judge and rapporteur on the CC’s examination of the Presidential Decree dissolving parliament Suzanna Stanik expressed regret that the “SBU only values me at 12 million – I cost 120 billion”. She also slapped National Deputy from BYuT [Yulia Tymoshenko’s Bloc) Mykhailo Volynets who was blocking her path. [See the previous day’s report for information on the allegations against Judge Stanik].
The Court heard Verkhovna Rada representative and, Deputy from the Party of the Regions Yury Miroshnychenko to the end, but refused to hear a second Verkhovna Rada representative.

President Yushchenko’s representative Volodymyr Shapoval, himself a former CC Judge began his presentation of the President’s official position.
Shapoval referred to an important judgment from the Constitutional Court in 1997. The Court had refused to consider a constitutional submission asking for interpretation of Article 102 of the Constitution*. The judgment had stated that in case of a critical situation, the President has the right to act without delay.
[* Article 102 The President of Ukraine is the Head of State and acts in its name.
The President of Ukraine is the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens' rights and freedoms. ]
In his analysis of the submission made by 53 Deputies from the Coalition, Shapoval asserted that if the President once caught the Verkhovna Rada out forming a coalition not in accordance with time restrictions, he had the right to dissolve it throughout the entire term of its powers. If the Deputies didn’t like it being dissolved, they should get re-elected and declared impeachment proceedings against the President.

Judge Pshenychny sharply objected that the Head of the Court Judge Dombrovsky was allowing Shapoval to speak a great deal. Judge Dombrovsky reminded impatient judges that they themselves had insisted on such hearings.

Shapoval was scathing in his criticism of the “political reform” [the constitutional amendments from December 2004, which changed the balance between President and Parliament] and explained why, in his opinion, it was this that had caused the current political crisis. He said that for example a provision like that on “the coalition of deputy factions” was unknown anywhere in the world except in Ukraine. The failure to take individual membership into account and the idea of such an unworkable construct as a faction coalition had led to the present problems.
He mentioned the contradictions between the Constitution and the law on the status of a National Deputy with regard to their faction and individual membership in the coalition.

In the session chambers one could see bizarre things. Deputies from the Party of the Regions were constantly using gestures to communicate signals to some of the CC Judges.

Shapoval stressed that 53 Deputies had in no way proved that the President had exceeded his powers, that is Article 6 § 2 of the Constitution.
[“Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine”]
He spoke of the difference between functions and powers, saying that functions cannot be fully expressed in the list of powers and that there are circumstances which are impossible to foresee.
He referred to another Resolution of the Constitutional Court which stated that Article 102 of the Constitution speaks of the powers of the President and not only of his or her functions. The question of what is involved with this is the question of discretionary powers.
Discretionary powers are when the party in law can act on his or her own discretion, on the basis of his or her legal awareness. If one denies the discretionary powers of the President (which National Deputy Miroshnychenko had constantly done the day before), then the President could not fulfil that part of his or her powers which are formulated in the form of evaluations and unclear categories.
He cited as an example the fact that Article 106 § 1.1 states that [The President of Ukraine]
1) ensures state independence, national security and the legal succession of the state. It does not however clearly define what this is. If you follow Miroshnychenko’s logic, the President cannot carry out actions aimed at defending national security because there is no such letter of the law, with there not being a definition of those actions by means of which he should defend security. According to Shapoval’s arguments, discretionary powers were used by the President in issuing his Decree on dissolving parliament.

Judge Dzhun asked Shapoval: “Do you consider that the use by the President of discretionary powers for dissolving the Verkhovna Rada is a medicine which could kill the patient?”
Shapoval replied that the patient and medicine were both metaphors and that it was not known which effect was worse – the illness or the medicine against it.

Judge Dzhun stated that he had not been convinced that the President had used all his discretionary powers in expedient fashion.
Shapoval replied: “The main thing is that you have recognized that he has such powers. And whether or not he used them in expedient fashion is not a legal category.”