Friday, 14 March 2014

What was the 22nd of February?

The 22nd of February was my daughter Peggy’s tenth birthday.

The 22nd of February was the second anniversary of the killing of journalists Marie Colvin and Rémi Ochlik by regime shelling in Baba Amr, Homs, Syria.

The 22nd of February was the day Viktor Yanukovych’s presidency of Ukraine came to an end. But how did it come to an end? Was the 22nd of February a democratic, constitutional transfer of power? Or was it a coup?

The US State Department is clear in its view that the change in government was democratic. From their March 5th press release, President Putin’s Fiction: 10 False Claims About Ukraine:
4. 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.

Kenan Malik believes otherwise. In a recent article, The many shades of Ukraine, he describes the new Ukrainian government as an “unelected regime”. In an exchange on Twitter he gave as a ground for this view first that Viktor Yanukovych was elected by popular vote whereas Turchynov, his successor, was not. This is true as far as it goes. Oleksandr Turchynov is a democratically elected member of the Ukranian Parliament (Verkhovna Rada of Ukraine) and was elected as Chairman on the 22nd of February. The Parliament voted to confer powers of the President on him on the 23rd of February, citing Article 112 of the 2004 Constitution of Ukraine. So Turchynov wasn’t elected by popular vote, but elected by parliamentarians who themselves had been elected by popular vote.

Kenan Malik doesn’t believe this election by parliament qualifies the new government as elected, however. His second significant ground for the phrase “unelected regime” was his belief that the “parliamentary vote was constitutionally insufficient to impeach Yanukovich (requires 2/3 of MPs to support).”

This was at odds with the BBC News account of the vote which reported that the vote to remove Yanukovych “was passed by 328 MPs” out of a total of 450, over two-thirds. According to the BBC’s Ukraine analyst Olexiy Solohubenko, “Such ballots, passed by what is called constitutional majority, are binding and enter into force with immediate effect.”

Kenan Malik was unmoved by this report, and pointed to a couple of blogposts and a Wikipedia page. All three look at the rules for impeachment.

In a February 28th post, American political scientist Jay Ulfelder concludes that the transfer of power was a coup, though in his view “a just coup”, the crucial point being the issue of constitutional procedure. He writes, “there are four ways a sitting president may leave office between elections: resignation, incapacitation, death, and impeachment. None of the first three happened—early rumors to the contrary, Yanukovych has vehemently denied that he resigned—so that leaves the fourth, impeachment.” He points out that the parliament didn’t follow the correct procedure for impeachment laid out in Article 111 of the Constitution: an initial vote to impeach, an investigation of the charge by a special temporary investigatory commission reporting back to Parliament, and a further vote on removal by no less than three-quarters of MPs. (Note the different requirements for the first and second votes.) Jay Ulfelder correctly points out that this procedure wasn’t followed, but that’s not the end of it.

The 22nd February resolution in question isn’t in fact worded as an impeachment at all, and actually there are two resolutions from that day which seem relevant:
22 FEBRUARY 2014, 13:20 The Verkhovna Rada of Ukraine adopted the Resolution “On taking political responsibility for the situation in Ukraine”
22 FEBRUARY 2014, 17:16 The Verkhovna Rada of Ukraine adopted the Resolution “On self-withdrawal of the President of Ukraine from performing his constitutional duties and setting early elections of the President of Ukraine”
The earlier resolution opens with the phrase “Taking into account actual self-withdrawal of the President of Ukraine from performing his duties,” while the later one reaffirms this view of events and grounds further action on it:
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

February 22, 2014
No. 757-VІІ
The resolution therefore doesn’t remove Yakunovych but determines that he has already removed, or withdrawn, himself. It recognises that his removal is unconstitutional, or rather determines that his withdrawal is unconstitutional, and locates this breach of the constitution in his action.

A legal challenge to the resolution is being mounted by opponents of the new government. It will be interesting to watch.

As for Kenan Malik’s article, considering its claim to be an examination of the ambiguities of events in Ukraine, I think his use of the phrase “unelected regime” crudely inaccurate, more akin to propagandistic obfuscation than enlightening analysis, and I think it’s unfortunately indicative of the article as a whole.

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