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A constitutional cacophony passes through the Rada

July 17, 2015

No differently from the theatrics, populism, and cacophony of discord that saw Bill №2217a “On Amendments to the Constitution of Ukraine (concerning the decentralization of power) pass through the Rada yesterday, undoubtedly Ukrainian main stream and social media will be screeching and squawking over the 288 votes in favour for the proposed amendments to the Constitution of Ukraine, and the “decentralisation” of powers these amendments bring – if eventually adopted, which is not guaranteed.

Having garnered 288 votes (300 being a constitutional majority), the Bill now heads to the Constitutional Court for its consideration.

It has to be noted that the Venice Commission is generally in favour having seen the amendments, returned them with “recommendations”, and those “recommendations” were by and large acted upon.  Thus any constitutional issues are not likely to be with content but with the procedures of the Bill passing through the Rada – if there were any.

Once given the Constitutional Court’s nod of approval, the amendments must then be returned to the Rada where the Bill must gather 300 or more votes in favour, lest it fail to meet a constitution changing majority, to then be sent to the President to sign these amendments into constitution changing force.

Ergo the 288 MPs that voted in favour today cannot change or waver in their position over the Bill, and another 12 or more must also be found to vote in favour – a vote probably some time in late September/early October to allow the Constitutional Court sufficient time to ponder the amendments thoroughly.  Hurdles clearly remain.

Of the details, most eyes will wrongly be looking at are the provisions relating to The Donbas and the area currently controlled by The Kremlin and its proxies.  So to deal swiftly with that issue now.

The website of the Verkhovna Rada on 15th July, made public a draft law on amendments to the Constitution of Ukraine concerning the decentralization of power – marked “modified.”

The most important difference from this and the first publication of the draft law of 1st July relates to the peculiarities of local self-government in certain (occupied) regions of Donetsk and Lugansk which are to be defined by a separate law – and not the Constitution of Ukraine.

The 1st July edition of this provision in the draft law was detailed in the “Transitional Provisions” of the bill, whereas the accompanying notes to the amended draft law of 15th July proposed to fix this norm within the Constitution of Ukraine.

As such, an amended Constitution will read “Property of the local self-government in parts of Donetsk and Lugansk regions will be determined by a separate law.”  That law is not yet adopted and seems extremely unlikely to be adopted and implemented until The Kremlin has removed all of its hardware and troops, as well as returning the control of the internationally recognised Ukrainian borders to Ukraine.  Don’t hold your breath for any of that to occur swiftly, if at all.

Thus Ukraine is seen to progress along the trajectory of the Minsk Agreement it signed, knocking the ball back into the Kremlin court once more, when little has actually changed, or is likely to change, regarding situation in The Donbas.  Readers would be wise to consider the Minsk Agreement a “framework” rather than the be all and end all of a legislative and political solution.

As long as Ukraine is seen to be going s far as it can reasonably be expected to go without any reciprocal and agreed actions from The Kremlin in eastern Ukraine, then ammunition for extending sanctions against Russia come 31st January there will be within Brussels as well as provide additional ammunition to the USA, Canada et al.

What the constitutional amendments do, is insure Ukrainian foreign policy, defence policy, national security, civil rights and their monitoring etc., remain the obligation of the core and not the regions – including The Donbas.  Rightly so too, for it is the State that must answer internationally as to why it is failing to adhere to any or all of its ratified international obligations either in part or in full.

As such, whilst the USA is not a party to the Minsk Agreements, clearly it is/has unofficially taken upon itself the role of “guarantor” for what remains of Ukrainian territorial sovereignty and upholding what is left of international law in the region – at least as far as eastern Ukraine is concerned.  Crimea is and will remain a “long grass” issue for as long as the current Kremlin occupant remains in office – if not longer.  However, it is not wise to through out the good with the bad in pursuit of the best in the current circumstances.  Issues in eastern Ukraine currently and necessarily take primacy.

That, so far as it goes, deals with the proposed constitutional amendments with regard to The Donbas and the near term.  What is subsequently in any “separate law” that will be constitutionally referred to, remains to be seen once/if Ukraine gets control of its borders back.  There may (or may not) be additional surrendering of sovereignty/power in The Donbas – at least temporarily.  Long term, without Kremlin tanks, soldiers, proxies, a closed border, and little in the way of local economics/infrastructure that has not been wantonly destroyed, it seems a matter of time before additional funding/goodwill is sought from Kyiv and thus that sovereignty is slowly either de facto or de jure returned.

The rest of Ukraine, however, will see the significant changes to local governance and the holders of additional responsibilities within local constituencies.

Of particular note, the amendments stipulate that the territory of Ukraine is divided into the communities.  The community will be the primary unit in the system of administrative and territorial structure of Ukraine.

Territorial communities according to the amendments will manage the property in communal ownership, approve the budget of the community and monitor its implementation, approve the program of socio-economic and cultural development – controlling their implementation, determine local taxes and fees, ensure the implementation of the results of local referendums, will form, reorganise and liquidate communal enterprises, organizations and institutions, as well take control over their activities, and resolve other issues of local importance assigned to its jurisdiction by law.

A long way from the current centralised system, and also the proverbial country mile from Kremlin insistence of a federal Ukraine.

The envisaged outcome is that the separation of powers in the system of local governance and their executive bodies at different levels is based on the principle of subsidiarity, which corresponds to the European Charter of Local Self-Government.

Charter

In accordance with Article 4 of that Charter, local governments within the law have a right to freely decide any matter that is not excluded from their competence in the conduct of any other official body.  Public authority and administration therefore, is by and large, to be borne by those closest to its constituents.

Regional Governors (Mr Saakashvili & Co) will be renamed “Prefects”.  They will no longer be appointed solely by presidential decree, but will be nominated by and agreed by the Cabinet of Ministers and President.

Fundamentally, their role does not change.  They remain the representative of the core, insuring that the constitution and other laws of Ukraine are upheld, government policy is effectively administered, and coordinate the activities of the lower structures of local governance where applicable, etc.

The newly christened “Prefects” may also suspend acts of local self-government based on their inconsistency with the Constitution or laws of Ukraine, with a simultaneous appeal to a court.

Should the peripheral wheel wobble to the point of threatening the State, the amendments allow that in case the chairman of the community council, district, or regional council act not in conformity with the Constitution, threatening a violation of state sovereignty, territorial integrity or present a national security threat, the President can stop the action of the relevant act with a simultaneous appeal to the Constitutional Court of Ukraine.  He may then temporarily stop the powers of the head of the community, the board of the community, district, or regional council and appoint a temporary state commissioner.

If the court finds that any of the above have acted unconstitutionally or outside of the law of Ukraine, sackings can (and undoubtedly will) occur.

Issues relating to finances and taxation etc, are not really worth the lines they will take to outline, given that what is constitutionally proposed is already in existence under the umbrella of an existing law.

That, for the time being, is a brief summary of the proposed amendments to the constitution – and as/when/if they eventually become part of the constitution, the situation in The Donbas does not radically change per the amendments themselves – any radical change will come only via “separate law” the constitutional amendments will refer to.

What will be far more interesting, is the effect these constitutional amendments will have upon the standard and accountability of local governance throughout the rest of Ukraine – after the inevitable teething troubles of course.

Meanwhile, the constitutional cacophony that began in the Rada in the preamble to passing this Bill, will undoubtedly continue with screeching and squawking in the main stream and social media – not to mention no shortage of jerking knees.

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