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17 July, 2016  ▪  Anna Korbut

Chaos and the law

Who is changing the Constitution of Ukraine today and how? How are these innovations linked to reforms in the country? The Ukrainian Week speaks to constitutional and administrative law expert Ihor Koliushko, chairman of the Center of Policy and Legal Reform

Manipulation of the Constitution. Most of the Ukrainian political scene started to talk about the need for changes to the country's Basic Law in 2007. Previously, the document was amended in 2004 to make provisions for switching to a premier-presidential form of government and limiting the powers of the president. In fact, this was nothing more than speculation to seize an appropriate moment. At that time, one side needed to change the law on presidential elections and the other one wanted to deprive the future leader of sweeping powers, because they were going to lose the next poll. Therefore, changes were made to the Constitution quickly and shoddily, with regard to both content and procedure.

In 2010, the Constitutional Court declared this version unconstitutional, so the Basic Law was changed according to its decision. This was done contrary to the Constitution, although the judges hedged their bets: the verdict was formulated in such a way to not mention a return to the 1996 Constitution. Instead, there was a phrase saying that that the 2004 changes were unconstitutional, therefore all state authorities should take appropriate steps to bring acts of legislation into conformity with this decision. The then Minister of Justice Oleksandr Lavrynovych and everyone else who was responsible for the legal sphere immediately took the opportunity to change the Basic Law. Since procedures were violated during this process, it gave grounds to declare the decision unconstitutional in the future. It would have potentially been possible to return to the 2004 version: there was a lot wrong with it, but one good thing too – the president does not have the right to singlehandedlydismiss the prime minister.

The history of amendments. During Yanukovych's presidency, the Constitutional Assembly (CA) was responsible for preparing amendments to the Basic Law. It formulated concepts on a number of issues: different working groups worked on decentralisation and reform of the public prosecutor and legal system,as well asstreamlining the highest bodies of state power. Politicians showed almost no interest in these new developments: MPs did not attend meetings of either the assembly or its working groups. One of these groups managed to reflect virtually all of the above reforms in a concept for constitutional amendments, with the exception of the public prosecutor: they did not support neither the removal of the section of the Basic Law regarding this authority, nor radical changes to it. However, this concept was never approved. It was completed in November 2013, and the CA was supposed to meet on December 6. On December 2, some of the experts, including myself, left the Assembly in protest against the assault of students on the Maidan. In the end, the meeting was cancelled altogether.

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During the Euromaidan, everyone was aware that the Constitution then in force was a tool for Yanukovych to usurp power. That is why he changed it in such an unnatural way – through the Constitutional Court decision and its further interpretation by the justice minister and other officials, effectively without consulting parliament. For that reason, a lot of people were saying that one of the goals of the revolution should be to change the Basic Law.

But two approaches to this matter formed: one advocated writing a new draft law on the amendments and submitting it to parliament according to procedure. By the way, at that time there was a broad consensus on this among experts (academics and politicians). Others, above all certain public figures, wanted to solve another problem: they believed that sooner or later they would have to extricate themselves from the revolution by coming to some sort of arrangement. With the change of government as one of its components. The 1996 Constitution made it impossible to reach such a deal with Yanukovych: he had the authority to dissolve the government and remove the prime minister at any time. Therefore, the simplest possible solution was proposed: deem that the court exceeded its authorityin making the 2010 decision. This option was adopted as part of the agreement brokered by international figures and signed on February 20, 2014 between the authorities and Maidan protesters, represented by their political leaders. And then it was realised, despite the fact that Yanukovych fled.

Nevertheless, everyone – both politicians and the public – called for a draft law on amending the Constitution to be prepared immediately. The changes were to concern the decentralisation of power, reform of the judiciary and public prosecutor, and the improvement of the relationship model between the president, parliament and government within a mixed premier-presidential republic. The aim of the latter point is not so much to restrict the powers of the president in some way, as to clearly elaborate them in the Basic Law, in order to avoid the ambiguities that were manipulated during the 2008-2009 conflict between Yushchenko and Tymoshenko.

Work on the Constitution after the Maidan. A public working group was immediately established by the people who worked most actively in the Constitutional Assembly, and propositions on a potential draft law were agreed upon. Experts talked about three themes. Firstly, for constitutional reform to be successful, it must be offered to the public when a window of opportunity opens and be acted on very quickly. Secondly, the bill of amendments should be drawn up professionally from a legal point of view with the assistance of experts. Thirdly, the changes should be presented as a concession to the publicfrom the authorities, rather than the initiative of, say, the president. Meanwhile, parliament created its working group headed by Ruslan Kniazevych. It did not try to engage society.

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President Poroshenko wasted almost a year before he created a Constitutional Commission in April 2015. It was very large, but did not include any of the people who had fought for decentralisation in previous years, for example. The commission had the task of preparing three draft laws: on decentralisation, judicial reform and the improvement of human rights. The reform of the highest bodies of state power was no longer mentioned. Consequently, three working groups were set up at the Constitutional Court too. The one that was responsible for decentralisation, for instance, took the previous experience of experts on this matter into account, elaborated it and submitted a more or less concrete bill to Petro Poroshenko. The one from the court had meetings in the Presidential Administration and discussions dragged on for a long time– there was a lot of talk, but few results, because judges dominated the process and everything was moderated by a representative of Poroshenko.

Decentralisation. In April 2014, the cabinet approved the principles of decentralisation reform – the Concept of Local Authority Reform and the Territorial Organisation of Government.

Its first stage was to conduct an administrative and territorial reform of communities. This was supposed to lead to the emergence of competent communities that could take over responsibility for all the necessary powers and finances. Without constitutionalchanges, it would only be possible to implement this reform based on the Law on the Voluntary Association of Communities. On the one hand, this would provide a certain transition period to ensure that citizens get involved in the process. And over the past year and a half there really have been some extremely positive transformations: people have seen real money in their village council bank accounts, plus a new road or school in the area and realised that all this is realistic. Today, the newly established communities are still learning, sometimes from their mistakes, and showing others how to follow this path. Legislation on associations and local autonomy is being improved in parallel. However, there is no country in the world where all communities have united voluntarily. So the government should give citizens a few years to bring their own initiatives to life and then complete the administrative and territorial structural reform by adopting a corresponding law. But this is all impossible without changes to the Constitution.

Secondly, the Basic Law documents the existence and powers of local state administrations. So we cannot reform them at the moment. Consequently, decentralisation is only occurring at the lowest level. The District State Administrations that remain will preclude the development of rural councils, which will not be independent. So, in general, it is impossible to carry out this reform in full without changing the Constitution.

In addition, during the preparation of the draft law on decentralisation, experts and the Constitutional Commission wanted to avoid any ambiguity and debate. However, some unclear features emerged nevertheless after the president submitted it to parliament. For example, some points were added about the prefects: they ensure the implementation of government programs and exercise other powers as stipulated by law. And this is not the only example.

Elections in the occupied Donbas. The most important change is the one that the president added to point 18 of the Transitional Provisions: the specifics of local government in certain districts of the Donetsk and Luhansk Oblasts are governed by a separate law. This phrase coincides with the name of the law "On the special procedure for local government in certain districts of the Donetsk and Luhansk Oblasts", dated September 16, 2014, so many politicians immediately suspected an attempt to legalise this particular document, even though it was unconstitutional and not in force. But this phrase could have made it comply with the constitution. So the entire discussion on the decentralisation draft law was reduced to a very emotional debate in the spirit of "betrayal" and "victory", rather than consideration of the actual reforms. In the end, the situation became so aggravated that it led to a loss of life on August 31, 2015. There was dishonesty on both sides: they went completely off-topic and said whatever they wanted without reference to the content of the bill. Naturally, it turned out that there were not enough votes in parliament to pass it, which is still the case today. Next, instead of acting constitutionally – updating the bill and sending it to the Constitutional Court for re-examination – MPs decided to do the exact opposite: they appealed to the Constitutional Court for an interpretation of the wording "next regular session" [from the article that describes the procedure for changing the Constitution].

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Let's not forget the external dimension: none of the experts know what happened at the Minsk negotiations and what the Ukrainian party promised. The list of requirements that was published after talks in February 2015 did indeed include Item 11, which says that Ukraine should amend its Constitution. It is complemented by an annotation that discusses the exact method for this. The details repeat verbatim the law "On the special procedure for local government in certain districts of the Donetsk and Luhansk Oblasts" dated September 16, 2014, which was passed at a closed session of parliament with the electronic voting screen switched off (a first in our history). From a legal point of view, this point is worthless: no one has the right to undertake a commitment to amend the Constitution on behalf of the Ukrainian people. But then the president proposed the decentralisation bill with his own amendments and started to tell everyone that this is needed to comply with the Minsk agreements. Then came the questions from foreign officials: what is going on with that law on fulfilling the Minsk agreements? It became necessary to explain the difference between decentralisation, those agreements and amendments to the Constitution. In the end, this all did a lot of damage. The decentralisation reform that we should have had is basically lost. We are giving in to Putin, who is waging war against our reforms and opportunities to develop and integrate into the European community. By not implementing decentralisation today in our peaceful regions (it is not possible in the Donbas), we are virtually preventing or at least hampering our development.

Judicial reform. The changes were coordinated and prepared over for a long time, but this law was not connected with the Minsk agreement, so enjoyed a slightly happier fate. The content was quite a compromise: a lot was developed and supported by experts. Many changes truly improve the constitution, although some aspects could have been refined even more. However, at the same time certain things appeared that were always seen as unacceptable. First of all, the monopoly of lawyers not only in criminal, but also civil and administrative proceedings. In the context of Ukraine, this creates a lot of problems: it impedes citizens' access to justice, as now a person facing trial (if they do not have legal training and cannot defend themselves) will always have to hire a lawyer. The same applies to public authorities. Instead of being represented by the in-house lawyers who are responsible for preparing the documents appealed against court (who could make the case that they did not break the law during this process), government agencies will also have to hire attorneys and pay for their services from the state budget. Why was this done? It looks like unconcealed lobbying for lawyers' profits.

Another shameful thing is that ratification of the Rome Statute of the International Criminal Court is not permitted for the next three years. Some people say that if Ukraine ratifies it, it would open the door to certain excesses. But we call on the ICC ourselves to investigate Russia's crimes in the Donbas. And then they ask, "So you only want us to look at their crimes?” There are no adequate explanations for this.

The bill on amendments to the Constitution regarding human rights is still being drawn up. However, it is not even visible on the horizon yet.

Everything I have said illustrates the chaotic character of current amendments to the Constitution. It seems to be more of an ad hocprocess than one with a strategic vision and clear goal, although it is at least taking place. In addition, our politicians from all camps tend to try to use constitutional reform exclusively in their corporate interests. When that fails, they attempt to avert any alteration of the status quo. As they are not used to thinking about the interests of society and its citizens.

Translated by Jonathan Reilly

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