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The Constitutional Court rules (as the Bankova wanted)

March 19, 2016

In mid-January an entry appeared regarding the President’s inability to find 300 (plus) constitution changing votes to enable the “decentralisation law”, a law that would spin out to the peripheral local governance structures more powers and finances – and also their responsibility and accountability to the local constituency.  The single sentence within the amendments mentioning a “Special Law” for the occupied Donbas was, and remains, enough to kill the changes to the constitution among the parliamentarians.

Decentralisation is indeed required – despite the risks that come with it.  The post-Soviet centralised governance is no longer a fit for purpose model (if it was ever a fit for purpose model) for contemporary Ukraine.

The planned end of January constitution amending vote failed to materialise because the 300 (plus) votes were absent – as long predicted.  This raised the possibility of those amendments therefore being unable to be voted upon for another year due to constitutional requirements relating to constitutional amendment submissions, and their subsequent voting time lines.

President Poroshenko having assured the domestic constituency, and all external interested parties that he had 300 votes – when he clearly didn’t have anywhere near 300 votes – therefore had to seek the maximum elasticity in the constitution’s wording and its insure helpful interpretation by the Constitutional Court to keep this major plank of domestic alive during 2016.  The alternative was to try again in January 2017 which would seriously irk those that remain transfixed by Minsk Agreement policy necrophilia.

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Thus the Constitutional Court was tasked with interpreting the wording of the constitution in the most helpful way possible – rather than the way the constitution has traditionally been interpreted by normal rational, logical, reasonable people.  The as yet absent lustration/reform of the judiciary has clearly paid off.  Past sins and future employment prospects of the judges will no doubt have been leveraged to the maximum, and a most favourable interpretation of the constitution has now been returned.

The key wording to be stretched to its legal limitations being “next regular session” of parliament and the “approval” of the parliament of the amendments.

The very helpful interpretation of “next regular session” would appear to have been interpreted as a session not necessarily following the current session but a future regular session.  “Approval” of the parliament does not equate to not voting upon it after amendments have been submitted, for in not voting at all, any amendment did not fail, nor get, “approval”.

All of which is somewhat interesting within the realms of legal interpretation of course, and also the political realm insofar as clearly the courts will still bow to the desires of current political leaders who remain quite happy to apply undue pressure upon the courts for politically expedient rulings.

The option to continue to fornicate with the Minsk Agreement in policy necrophilia remains thanks to this particularly “helpful” judgement – for what it’s worth.

The judgement goes no way towards the President getting any closer to the 300 (plus) required votes to pass these constitutional amendments so long as any mention of a “Special Law” for the occupied Donbas remains within the text.  Without that single sentence, decentralisation – including to the occupied Donbas – would have long ago been given its constitutional rite of passage.

The question therefore, is whether in being very “helpful” in its extremely elastic interpretation of the constitution, will be how this will be perceived.

Clearly President Poroshenko can continue to make the (obviously hollow) claim that he has 300 votes when the situation in the occupied Donbas improves enough for him to call them in (despite the “Special Law” sentence that will continue to prevent sufficient support) – thus prolonging the Minsk Agreement necrophilia somewhat longer in the absence of a Plan B and/or a willingness by external parties to change the calculus of The Kremlin and Kyiv by pressuring Kyiv less on Minsk and more on reforms, and pressuring The Kremlin more as a participant in the conflict and treating it less as a mediator.

The domestic constituency however, may well perceive this outcome as the current president being no less in control of judicial outcomes than the last president who fled the country, further eroding any lingering notion the constituency may have regarding his serious intent to conduct reforms and create strong and independent institutions.

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