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Reform responsibilities (Constitutionally speaking)

July 6, 2015

The Greek referendums is grabbing the headlines – and the issue is not one of austerity or money as many would claim, but an issue of a weak State refusing to reform.

Thus the “Yes/No” referendum is entirely meaningless unless the question being asked is whether the desperate need for State reform should occur with all the pain involved – or not.

That has, inevitably, raised questions as to how President Poroshenko’s reforms are going:

A reasonable question.

Here it is necessary to clearly identify who is responsible for what constitutionally in Ukraine.

Presidential responsibilities are defined in Section V (Article 102 – Article 112) of the constitution.  Aside from the nominations of a few institutional heads, broadly speaking the president is responsible for foreign policy, defence and upholding the constitution.

The responsibilities of the government/Cabinet of Ministers are defined in Section VI of the Constitution (Articles 113 – 120) and basically cover all other governance spheres (less prosecutors office, local governance and justice).

So, the question of how the President is doing regarding reform is one of perspective.  There is now a reasonably effective army where there was none.  Territorial losses have slowed to a crawl – and those losses are a bitter exchange for reformation time from the perspective of Kyiv.

The national foreign policy is certainly now clearly orientated and high profile.

Constitutional faux pas remain few, though there are predictable issues pending the Constitutional Court – rightly.

In short, President Poroshenko is currently doing OK as far as his responsibilities as designated by the Constitution.

However, “Solidarity” was a party created by the President many moons ago.  It has gone through various metamorphosis through the years, but it forms the largest single number of MPs in the current Rada – albeit not a majority.  Thus it is bound by a coalition – and a coalition that is increasingly dysfunctional and persistently having to quell populist nonsense from Ms Tymoshenko and Batkivshchyna as well as Oleh Lyashko and the Radical Party.  This notwithstanding an increasingly unreliable People’s Front Party.

It is within this coalition that robust reforming legislation is becoming far harder to deliver.  It is within this coalition that the Cabinet of Ministers is formed by a party allocation basis.  It is part of the reason that entirely unsuitable Ministers sit in ministerial chairs.

Indeed, aside from some solid work by the Finance Minister, Economics Minister and NBU Head to try and put a stop to the economic rot, the only other truly visible reform comes in the as yet unproven new “Police”.

There remains far to go with reform of other critical and top priority reforms within the judiciary, civil service, the effective implementation of numerous newly created anti-corruption bodies and urgently needed energy reform/transparency – all of which sit within the presidential 2020 reform strategy, but remain outside of presidential control constitutionally and also outside of the presidential party’s ability to change without coalition partner assistance.

The simplest way to answer whether the Ukrainian voting constituency understands the separation of constitutional powers is to look at opinion polls – the drop in the favourable presidential polling still leaves President Porosehnko the proverbial “country-mile” in front of all other would be candidates at the time of writing.  Prime Minister Yatseniuk’s rating have dropped through the floor.

It was expected that Mr Yatseniuk would suffer greatly when creating and implementing reforms that will be either unpopular or untimely (deemed too late, or too soon) or both.  (There are other factors to his and his party’s unpopularity too.)

Thus the Ukrainian public seem entirely aware of who is responsible for what – or not, as the case may be with regard to specific reforms.

The inability to understand the responsibilities within Ukraine however, appears to be widely held by those external of Ukraine.  Thus Presidential issues are laid at the Cabinet’s door, and Cabinet issues at the presidential door.  Encouraging either executive power to step across their constitutional boundaries would be an entirely bad idea, for they need little encouragement to disregard the rule of law in pursuit of political expediency and power as it is.

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Thus the expectations for reforms in Ukraine – or not, and by extension how well presidential reforms are going, much depends upon how you both understand and interpret the actual and perceived strengths of the institutions of executive power.

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