Tag Archive | "constitution"


Critical Analysis: Hope for Ukrainian Democracy with the Parliament and the Protesters

Major upheaval in the Ukrainian government followed fiery and deadly protests in Kiev’s Independence Square last week.  Parliament ousted President Viktor Yanukovych and declared a new interim president.  Two groups, members of parliament (“MPs”) and hoards of protesters, played an integral part in the changes in Ukraine.  Maintaining the tentative peace in Ukraine depends in part on whether parliament’s actions over the last week carry the force of law.  One important issue is whether parliament’s reversion to the 2004 Constitution this weekend was legal; the 2004 Constitution provides for expanded parliamentary powers and diminished presidential powers.  This article first discusses the protests and revelations about the ousted president to provide context for parliament’s actions then analyzes the role of the Ukrainian Parliament moving forward.

Protesters occupied Independence Square in Kiev since November 2013, when President Yanukovych abandoned a massive deal with the EU in favor of a stronger connection with Russia.  Protests quickly expanded to include criticism of “corruption, human rights abuses and calls for Yanukovych’s resignation.”  The protests fluctuated in size over the last three months.  One day in December, “at least 300,000” protestors demanded the resignation of President Yanukovych.  The protesters come from various parts of the political spectrum, from current MPs to violent radicals.  Most protesters initially remained committed to nonviolence, until allegations that police killed more than 70 protesters between February 18th and February 20th fundamentally changed the protests.  One report on February 20th describes white collar protesters adopting violent methods, such as a computer programmer who joined a fighting unit and a phone company manager who provided supplies for Molotov cocktails.  Ukraine is a young democracy, dating back to the fall of the U.S.S.R. in 1991.  The violence during protests in Kiev last week is unprecedented during this period of democracy.  Instead, up to this point, the citizenry has used peaceful protests to express disapproval of politicians.  For example, the generally peaceful Orange Revolution in 2004 occurred after claims of presidential election rigging and resulted in a rerunning of the election.

Independence Square on February 20th as anti-government protestors clash with riot police. Image Source: AFP

Independence Square on February 20th as anti-government protestors clash with riot police. Image Source: AFP

On Friday, February 21, President Viktor Yanukovych seemed likely to stay in office until December under the terms of a compromise deal.  However, Yanukovych fled Kiev on Saturday, and parliament issued a warrant for his arrest for crimes related to the violence against protesters and financial misconduct.  Parliament put Oleksandr Turchynov, a key ally of recently freed opposition leader Yulia Tymoshenko, in control of Ukraine after ousting Yanukovych.  Parliament declared Mr. Turchynov the new speaker and interim prime minister, then the interim president.  He hopes to form of an interim unity government by Thursday, February 27th.  Mr. Turchynov describes the current economic situation in Ukraine as “catastrophic” and says the economy is on the verge of default.  This precarious economic situation motivated negotiations with the EU in November.  Alongside reports of Mr. Turchynov’s statements about the economy, new details about Yanukovych’s opulent lifestyle emerged after his lavish country estate was nationalized over the weekend.  Reporters combed through financial documents found at the estate, which include these expenses: “Decoration of a dining hall and tea room: $2.3 million. Statue of a wild boar: $115,000. ‘A bribe’: $4,000.”  The estate includes a golf course, a collection of classic cars, a private restaurant shaped like a pirate ship, and a zoo.  Presumably, the link between the empty coffers and the lavish lifestyle will be clarified as investigations proceed.

The legitimacy of parliament’s decisions depends in part on whether the 2004 Constitution, with expanded parliamentary powers, was legitimately reinstated this week.  The failed compromise deal on February 21 included a provision for reverting to the 2004 Constitution.  The 1996 Constitution provides for a more powerful presidency, and the 2004 Constitution provides for a more powerful parliament. In 2010, Ukraine’s Constitutional Court repealed the 2004 amendments and reverted to the 1996 Constitution; thus, the 1996 Constitution was in place leading up to the protests.  Now the question is whether the 2004 Constitution was validly reinstated. Reversion to the 2004 Constitution limits the powers of the presidency in favor of the parliament.  Initially, parliament voted in favor of reverting to the 2004 Constitution as part of the compromise deal on Friday, but Yanukovych never signed that bill.  After the compromise deal fell apart, the parliament voted again the next day.  On Saturday, February 22nd, 325 of the 331 MPs present voted in favor of reinstating the 2004 Constitution.  However, there may be future challenges to the second vote because a 3/4ths majority, 338 out of 450 MPs, is required for a valid constitutional amendment.  Challenges to the second vote may be unsuccessful given the current political climate in Ukraine; distrust of Yanukovych and anger over deaths of the protesters will make a challenge from within Kiev difficult.  Similarly, analysts assume the pro-Yanukovych regions of Ukraine, in the south and east, are more likely seek independence than to seek changes in Kiev.

Irrespective of whether the 2004 Constitution applies, the Ukrainian Parliament appears to be the best institution to run Ukraine until the presidential elections on May 25 because the parliament is a democratically elected body. Half of the 450 seats in parliament are elected on a proportional basis to political parties that win 5% or more of the national vote.  The other half of the seats are elected using “first past the post” single member districts, where individual candidates are elected irrespective of political parties.  The most recent parliamentary elections, last held on October 28, 2012, received mostly positive assessments from international groups.  However, election observers criticized the excessive influence of the ruling party and the absence of two opposition figures, who were jailed following controversial trials.  Nonetheless, the parliamentary elections generally enabled voters to elect ideologically diverse candidates in a free election.  Parliament is made up of various political parties: in the last election, five different political parties each won 10% or more of the seats in parliament.  Still, parliament is imperfect: fistfights between MPs during legislative sessions raise questions about the stability of Ukraine’s parliament.  Some express concerns that parliament’s divergent political beliefs will prevent parliament from functioning as a cohesive body.  Nonetheless, with such dramatic political upheaval over the last week, the Ukrainian Parliament is the only democratically elected governing body in place.  Potential future constitutional challenges, ensuring the formation of Mr. Turchynov’s unity government, addressing the failing economy, and preparing for the May 25 presidential elections all require cooperation within parliament.  Despite the potential difficulties ahead, the parliament is Ukraine’s best option for continued democracy.

Katharine York is a third year law student and a Staff Editor on the Denver Journal of International Law and Policy

Posted in DJILP Online, DJILP Staff, Featured Articles, Katharine YorkComments (0)

A woman in Poland protests ritual slaughter for kosher and halal meat.  
(Source: blogs.ft.com)

Critical Analysis: Muslim and Jewish Faiths Fight Poland’s Ban on Ritual Slaughter

In November 2012 Poland’s Constitutional Court held that the religious slaughter of animals for Muslims and Jews violated the country’s constitution and animal welfare laws. The European Union rule that went in to effect on January 1st allows an exception for religious slaughter. With the E.U.’s exception to the rule that all animals be stunned prior to slaughter, Poland’s court ruling has now been in conflict with the exception. This past July Poland’s lawmakers introduced a law to allow an exception for religious slaughter but it was then voted down. Leaders of the Jewish and Muslim faiths are concerned that Poland’s refusal to allow a ritual exception will limit their right to religious freedom. Both groups are now requesting the Polish court to examine the law again.

A woman in Poland protests ritual slaughter for kosher and halal meat.   (Source: blogs.ft.com)

A woman in Poland protests ritual slaughter for kosher and halal meat.
(Source: blogs.ft.com)

Humane laws aim to reduce animal suffering by requiring that animals be stunned prior to killing but the traditional customs of Jews and Muslims follow a different method. Livestock animals are killed by slitting the throat and allowing it to bleed out while still conscious. Religious leaders argue that their practice has been used for thousands of years and it is consistent with humane treatment of animals because they require the animals to be healthy and uninjured prior to death. They do not believe in treating the animals in a cruel manner and argue that their method of slaughter delivers a quick death.

The research provides conflicting views. A study from University of Hannover in Germany suggests that with the ritual slaughter properly performed, after the first three seconds the animal will fall into a deep sleep-like consciousness due to the loss of large amounts of blood, which cuts off oxygen to the brain. On the other hand, a 2009 study from New Zealand’s Massey University claimed that although a calve loses consciousness after several seconds pass, the pain sensations will continue for up to two minutes. That study then applied the stun method and claimed the pain on the electroencephalography ceased immediately.

The differences in slaughtering methods has caused some tension. Poland’s population is estimated at around 38 million with about 20,000 to 30,000 members in both the Jewish and Muslim communities. Because they are the religious minorities, some have suggested that the kosher slaughter laws, which began in 1936, are part of anti-Semitic efforts to push Jews out of Poland. However, Poland’s president, Bronislaw Komorowski, has stated he supports the rights of the religious minorities to kosher slaughter and would work to resolve the issue because he believes the religious freedom of the “Jewish community to be a national interest of supreme importance.”

Although the majority of Polish people are Catholic, democratic ideals urge the rights of religious freedom should be protected for all of the various groups of faith. Recently, Pope Francis has expressed his concerns and opposition to restricting religious freedoms and has ordered an investigation in to Poland’s ritual slaughter ban. On the other hand, Terry Sanderson of the National Secular Society, believes the Pope’s actions will “interfere with the democratic processes of an independent nation like Poland.” He argues that an attempt to overturn parliamentary or judicial decisions threatens democracy and would be an abuse of the Catholic Church’s power. The Vatican announced that there will be a follow-up meeting after the investigation conducted by Cardinal Kurt Koch is complete.

The loss of ritual slaughter not only raises concerns for religious freedoms but also increases economic and financial troubles for Poland’s citizens. Ten percent of the cows and chickens are slaughtered by kosher and halal methods and those slaughterhouses employ 4,000 people. Poland subsequently exports that meat to twenty different countries. Last year commercial butchers exported $460 million worth of kosher and halal meat. In preparation for Jewish New Year, Rosh Hashanah, kosher meat was imported from Vienna and Budapest, although some slaughterhouses in Poland are continuing their traditions and ignoring the ban.

Other countries that ban ritual slaughter include Sweden, Norway, Iceland, Switzerland, and Latvia. The Dutch government also introduced a ban but it was later abandoned and the community instead reached a compromise on the length of time the animal could be conscious. When the Polish court revisits this issue it will look to clarify the factors weighing on the matter. The court will need to consider the religious rights of Jews and Muslims, the rights of the animals under their animal welfare regulations, the EU law, the Constitution of Poland, and the religious and economic implications of allowing or banning the exception to ritual slaughters. The pressure of these numerous factors may lead the government to seek a compromise in Poland, similar to that used by the Dutch.

Kristen Pariser is a 3L, a Staff Editor for the Denver Journal of International Law and Policy, and the Executive Editor for The View From Above blog.

Posted in DJILP Online, DJILP Staff, Featured Articles, Kristen PariserComments (0)

Egypt's President Mohammed Mursi receives the draft constitution from the Constituent Assembly. (Al Arabiya)

Constitutional Crisis: The Similarities Between Egypt’s Past and Present

Egypt’s President Mohammed Mursi receives the draft constitution from the Constituent Assembly. (Al Arabiya)

On November 22, 2012, President Mohammed Morsi of Egypt gave himself broad new powers related to the writing and ratification of Egypt’s constitution.  The most controversial of these powers, which led to mass protests in Egypt, stated that “Morsi’s decisions could not be revoked by any authority, including the judiciary, until the new constitution had been ratified and a fresh parliamentary election is held.”  Although Morsi said that those powers would last only until the new constitution is ratified, many Egyptians perceived this action as a power grab.

This added to the already controversial nature of the draft constitution, which “has been criticized for not protecting the rights of women and minority groups, and…restricting freedom of expression.”  Another concern is that the charter apparently favors Islamists, both by giving clerics influence over legislation and by taking power away from other groups.  The perceived enhancement of Islamist power has divided the country; the Islamists and Muslim Brotherhood (of which Morsi is a member) support the draft constitution, while youth groups, Coptic Christians, and other more liberal groups oppose it.

A referendum on the draft constitution is supposed to be held on December 15, and protesters have already demonstrated in opposition to the event taking place. Morsi stated that he still intends to hold the referendum in the wake of the protests.  On December 6, Morsi offered to engage in a dialogue with opposition members, but many groups, including the prominent National Salvation Front, declined.  Instead of being perceived as an attempt to negotiate, opposition parties saw the proposed dialogue as Morsi’s willful ignorance of the Egyptian people’s demands.

Morsi’s supreme powers evoke memories of Hosni Mubarak’s rule, and many of the protests against Morsi echo those from early 2011 when Mubarak’s regime fell.  Like those protests, the recent demonstrations have also turned violent.  Indeed, the protests represent “the first time supporters of rival camps have fought each other” since the protests against Mubarak.  Although the violence alone is reminiscent of the Mubarak protests, the similarities run deeper than that.  Nobel Peace Prize laureate Mohamed ElBaradei noted the danger “that Morsi’s rule was ‘no different’ than Mubarak’s…[and] ‘is perhaps even worse.’”  ElBaradei particularly noted that Morsi’s supporters had violently attacked peaceful protesters near the presidential palace, and he called on Morsi to “[c]ancel the constitutional declarations, postpone the referendum, stop the bloodshed, and enter a direct dialogue with the national forces.” 

Today, the protests face additional uncertainty.  Morsi approved a decree authorizing the use of martial law in order to quell the demonstrations.  This runs contrary to any proposed discussions between Morsi and liberal parties.  Some changes have taken place during the past few chaotic days; among other things, Morsi “has sought to redefine his initial decree so it fits within judicial precedents instead of stepping over the courts…[and] has said that the decree would be canceled after the referendum…, even if the constitution is rejected.”  Other government officials said they would permit additional constitutional amendments by opposing parties.  However, the proposed martial law decree undermines the force of these apparent concessions.

Tanya Sevy is a 3L at the University of Denver Sturm College of Law and the Survey Editor of the Denver Journal of International Law and Policy.

Posted in DJILP Online, DJILP Staff, Featured Articles, Tanny SevyComments (0)

University of Denver Sturm College of Law