Igor Markov has RADA MP status removed – Unconstitutional?

September 14, 2013

Almost exactly one year ago, I wrote about the particularly dirty election campaign for the RADA seat for Kyivsky Rayon in Odessa.

It is possibly now somewhat required background reading when understanding events yesterday that resulted in my neighbour Igor Markov being deselected as RADA MP for the Kyivsky Rayon of Odessa by a decision of the Supreme Administrative Court of Ukraine.

For the sake of transparency, I will again make a disclosure that I know Igor Markov.  Not only is he a neighbour, he is also the man I bought my home from.   As a man he is quite amiable and though I may not agree with his political views or many of his policies, I am grown up enough to be able to separate the person from the politics/issues/policies.  Thus whilst liking him, I can and do disagree with his position on many things.

As Aristotle perfectly stated “It is the mark of an educated mind to be able to entertain a thought without accepting it.”

Anyway, the Supreme Administrative Court of Ukraine ruled that there had been election fraud relating to the RADA seat to which Mr Markov was elected and ordered the Central Election Commission to remove his deputy mandate and arrange new elections.

The claim being that 6038 ballot papers had been tampered with by employing disappearing ink at ballot stations and that Mr Markov’s closest rival, Party of Regions Alexey Goncharenko (whom I also know to make a further and necessary disclosure) finished 5160 votes behind.

Perhaps all this is true – although on the presumption that Mr Markov knew personally of the shenanigans relating to disappearing ink,  quite how this was manipulated by Markov to his advantage  is unclear.  It would surely involve others, presumably within the regional representatives of the Central Election Committee for any disappearing ticks or crosses in appropriate boxes to be “reallocated” in his favour – and yet no criminal proceeding have been launched against either Mr Markov or any election supervision.

In fact, the Supreme Administrative Court ruling does not bar Mr Markov from running in any reelection campaign or bar him from public office in the future either.

Yet according to Article 81 of the Constitution of Ukraine an elected Deputy’s mandate can only be removed as follows:

Article 81. The powers of the people’s deputies of Ukraine shall terminate simultaneously with the termination of the powers of the Verkhovna Rada of Ukraine.

The powers of a people’s deputy of Ukraine shall be subject to early termination in the event of:

1) resignation by virtue of a personal statement;

2) guilty verdict against him/her entering into legal force;

3) court declaring them legally incapable or missing;

4) termination of his citizenship or his departure from Ukraine for permanent residence abroad;

5) his/her death.

A decision about early termination of a peoples deputy’s powers shall be adopted by the majority of the constitutional composition of the Verkhovna Rada of Ukraine.

In case of failure to fulfill the condition on the incongruity of peoples deputy’s mandate with other types of activities the powers of the peoples deputy of Ukraine shall be early terminated under the Law and upon the decision of the court.”

Prima facie, the above appears to state that regardless of any shenanigans obtaining a political mandate, once it is accepted by an MP, no Ukrainian court in the land can rule it invalid – lest the MP in question be either physically  incapable of carrying out their duties and/or certified insane – And to be fair to Mr Markov, when last I saw him he was as fit as the proverbial flee and fully compos mentis.

Thus nowhere in Article 81 does there seem solid legal grounds for the Supreme Administrative Court to instruct the removal of Mr Markov’s MP status if the Constitution is deemed to be the supreme law of the land.  In short, one has to ask if this court decision is indeed constitutional – regardless of any previous fraud allegations having any merit.

Although I have yet to see Mr Markov since this court decision, I understand that this decision will be appealed at the ECfHR in Strasbourg with immediate effect – and perhaps rightly reading Article 81.

All of this said, I have to say that the explanations for this action occurring now as put forward by Mr Markov seem somewhat thin.  He claims that it is a result of his pro-Russian position in relation to the EU.  That however, has always been the case.  He is the leader of the fairly long-standing and established Party Rodina in Odessa, which can be generally described as a pro-Russia party.

The ruling majority can certainly suffer the pro-Russian political positions of Mr Markov when they have opposition support for all legislation that is pro-EU.  His singular vote will not change the direction of the RADA or the dynamics within.

It would seem a very disproportionate instruction from “the top” to the Supreme Administrative Court to take this action – unless there is either genuinely a case and it is somehow deemed constitutional, or there are other indirect  “opaque issues” that dictate this action for reasons yet to become apparent.

And so to what happens next?

If there are to be new elections for the Kyivsky Rayon, there is nothing to stop Mr Markov running in them given the ruling of the Supreme Administrative Court.  He was genuinely popular – as was Mr Goncharenko as the results rightly identified (making allowances for for the dirty campaign).  It was always a two horse race.

It remains to be seen if he will run again (if he has to) – or indeed if Mr Goncharneko would run either – providing for the possible specter of some preferred Party of Regions candidate being parachuted in to run for the seat to the determent of both.

Perhaps he will be privately informed to take it on the chin to save his business interests coming under pressure – perhaps they will come under pressure anyway.

That said, the people of Odessa do not take kindly to those “parachuted in” and have always preferred local politicians with a local history.

Unfortunately for the oppositions parties, because the people of Odessa do not take kindly to “parachuted candidates”, it is unlikely to offer them any hope of winning this seat as they simply do not have local politicians with a high enough profile to take the seat.

Whatever the outcome, a RADA seat that was subject to a very dirty campaign remains in the mire some 12 months later.

Perhaps we will see Party Rodina under SBU scrutiny as a threat to National Security in the near future?  I am quite sure, given yesterday’s post, we could rely on Mr Kyrylenko to do the necessary paperwork!

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