Un-decentralisation? Rada passes 2nd “decentralisation vote”September 1, 2015
On 17th July, this entry appeared relating to the successful passing of Bill №2217a “On Amendments to the Constitution of Ukraine (concerning the decentralization of power).
“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 a majority second reading, and final third vote on the Bill which 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.”
Since that entry was published, unsurprisingly the Constitutional Court has given an approving nod. An extraordinary Rada session of 31st August predictably saw the second reading of Bill №2217a, gather the simple majority it required to continue along the constitution changing route. The vote, 265 in favour from the 320 MPs registered at the extraordinary session.
All clearly progressing as outlined above, the plan being to hold the final reading requiring a 300+ vote in favour prior to the local elections of 25th October.
Immediately prior to the second reading, President Poroshenko changed the plan – or so it appears.
He announced to MPs that there would be no attempt to adopt the constitutional changes before The Kremlin removes all troops and equipment from the occupied Donbas and returns control of the internationally recognised border to Ukraine.
Thus as Minsk II deadlines are at the year end, the due date (theoretically) that Ukraine should retake control of its borders per the agreement, it seems extremely unlikely that there will be a third vote this year .
It clearly shines a new light upon President Poroshenko’s statement regarding more local elections 2 years after the local elections of 25th October and the creation of a “framework” for decentralisation during that period. Whether or not the Kremlin removes its troops, equipment and proxies from the Donbas or not – and one has to suspect not – the final decentralisation vote does not seem likely to occur any time before Easter 2016.
Indeed if the third reading is dependent upon the Kremlin pulling out its troops, equipment and proxies from the Donbas as President Poroshenko stated, it could very well be several years before the third final (and potentially constitution changing) reading.
An unpleasant and unexpected surprise for the Europeans, Council of Europe, and in particular Berlin and France and Washington?
Actually probably not.
Having sat & done a guesstimate vote count for Const amendments on 31 Aug, the 226 votes are there. Final vote (in Oct?) 300 votes not there
— Nikolai Holmov (@OdessaBlogger) August 30, 2015
Despite all the squawking of the chattering classes and hyperbole in the social media, this change of timing is somewhat forced upon President Poroshenko (whether he secretly welcomes it or not).
As the above tweet states, regardless of the chattering classes and social media hyberbole, what actually matters are numbers – the number of votes Bill №2217a can actually muster.
Gathering the 226 (or more) majority was entirely achievable at the second reading. Gathering a constitution changing 300 (or more) in the foreseeable future seems very unlikely indeed. In fact it may become ever more unlikely.
The numbers that would vote favourably are close to the 300, but not close enough – to the point where electing an MP to replace the recently deceased Oleg Eremeev actually matters – as does the resignation of MP Oleg Musiy from Block Poroshenko/Solidarity following the second reading vote.
President Poroshenko will be keenly aware of this. So to will Berlin, Paris and Washington – for a start he will have told them. Secondly, the diplomats from these capitals will have (or should have) been talking to MPs and doing their own numbers too – no differently than your author. Our respective numbers may not be exactly the same, but assuredly those numbers would have predicted a probable fail in the Rada regarding 300 votes or more any time soon.
Whilst the amendments on decentralistion would probably have garnered 300+ votes despite concerns relating to more presidential power, the last minute inclusion of a specific reference to The Donbas effectively killed off any easy ride for the constitutional amendments when push eventually comes to shove. Indeed it may have killed off the amendments entirely as they are currently written and/or packaged.
There is a large and fairly robust number of MPs that simply do not want to see The Donbas given any special mention whatsoever in the Constitution of Ukraine. Their position – Adopt whatever special laws as are required, but nothing specifically identifying the Donbas as different from anywhere else within the text of the constitution.
The Rada, after all, is not the Russian Duma. The Rada, has, can, and will continue to occasionally defeat both government and president of Ukraine. Whilst it may be a theatre of the absurd no differently than the Duma, that absurdity takes a different manifestation. It is certainly not a celebrity packed rubber stamp institution as seen in Moscow.
Thus, President Poroshenko was faced with either pursuing the October 300+ vote prior to the local elections as planned with the numbers hardly looking favourable, or putting matters on the back burner until amendment text, packaging or circumstances change those numbers in his favour.
A defeat over constitutional amendments is not to be relished as the keeper of the constitution, so why risk it? Take the issue as far as can be comfortably assured of success.
The question arises as to what will insure the numbers eventually change in favour of the amendments?
Despite any misgivings over the interpretation of the amendments ceding more power to the sitting president, the removal of any and all mention of The Donbas will probably be enough to gather 300 (or more) votes. The question for Berlin, Paris and Washington is whether they accept the democratic progression that decentralisation offers at the expense of an already pocketed concession to The Kremlin and the whining that will inevitably follow.
Do things look differently once the Minsk II clock has run down and Kremlin troops, equipment and proxies still occupy The Donbas? Will striking out that line then become acceptable?
Repackaging seems particularly difficult. How to separate the amendment line that relates to the Donbas, to subsequently offer it up separately for a vote, or attach it to a different constitutional set of amendments, yet progress decentralisation which most MPs otherwise accept? In repackaging, would it not simply scupper whatever constitutional amendments it was attached to?
Is there a clever way to draft a standard law that provides for decentralisation within the existing text of the constitution, forgoing any constitutional amendment whatsoever – or at least facilitating “decentralisation” by statute until it is eventually enshrined in the constitution?
Yes The Kremlin would be very displeased by such an approach, for constitutional change specifying the differences of The Donbas was a Kremlin desire, but then Kyiv has long since stopped worrying about Kremlin sensitivities. It believes the territorial space it has sacrificed for time to sort itself out now puts it in a much stronger position. Perhaps it is right to think so too.
Will the Kremlin settle for the un-decentralisation of power in Ukraine as a reform-busting, European integration scuppering second prize by leaving its troops, equipment and proxies in The Donbas?
If it cannot reverse Ukrainian course back toward Moscow (and that Rubicon has been crossed), then insuring central/foundational proposed reforms fail and European integration/democracy falters simply by leaving troops, equipment and proxies in The Donbas may be seen as a least worst outcome.
Would “western” messaging about reduced/removed funding insure enough constitution changing votes? To write standard laws and adopt them probably – to force MPs to change the constitution for The Donbas, possibly not, regardless of the consequences.
No matter how much western pressure is put on President Poroshenko, it won’t necessarily equate to enough Rada MPs prepared to acquiesce and drag the amendments over the Rada finish line. Further, in applying a good deal more pressure, would that weaken President Poroshenko and the current government? No matter how good or bad a reader may believe them to be, it is hard to see any better options.
Thus whilst acknowledging a further legislative step toward “decentralisation”, and ignoring the squawking of the chattering classes, quite where things go from here remains somewhat unclear when the numbers required for the next and final Rada step simply don’t appear to be there without a significant change of position or circumstance – somehow.
Meanwhile the local elections of 25th October will occur under the old electoral systems and laws, with the winners inheriting the same powers as their predecessors.