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27 January, 2020  ▪  Andriy Holub

Dangerous liaisons?

The red lines that keep haunting Volodymyr Zelenskiy have managed to find their way into the bill on decentralization, too

This one topic has not been raised in the Verkhovna Rada for over four years now. The last time was before August 31, 2015, when a hand grenade tossed at the square in front of the legislature took the lives of 4 National Guardsmen and significantly slowed down the reforms that had just been launched. Nominally, MPs kept debating constitutional amendments involving decentralization, but, in fact, the general idea of eliminating the soviet organization of local government moved to the back of the priority list. “The features of local government in certain counties of Donetsk and Luhansk Oblasts shall be designated in a separate law,” a sentence proposed by then-President Petro Poroshenko to be added to the Transitional Provisions of the Constitution, was the issue over which the government and the opposition broke swords.

In the winter of 2019, the trials of the two suspects in the terrorist act in front of the Rada, Ihor Humeniuk and Serhiy Krainiak, continue, while Poroshenko’s bill amending the Constitution disappeared into neverneverland. The idea of decentralization and its reforms have survived. Today, more than 11 million Ukrainians today live in newly-formed unified territorial communities or UTCs, while the proposed mechanisms for organizing their administration have proved their advantages in practice.

Still, the dangerous link between decentralization and the occupied territories that led to tragedy in 2015 has not been broken. Until the Constitution is amended, all the achievements of decentralization remain temporary and shaky. This is discouraging and adds uncertainty, especially for those who have personally put in the effort to change things locally. As soon as an issue is put on the agenda, it becomes fogged with risks connected to Moscow and its never-ending and ever-changing whims.

A bill registered in the Rada on December 13, “On amending the Constitution of Ukraine (regarding the decentralization of government),” initiated by President Volodymyr Zelenskiy and the identical one proposed by Poroshenko not only have the same name, but largely the same content. Still, there are differences, and disputes over their essence have already divided yesterday’s fans of reform into several camps.

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The Zelenskiy bill makes no mention of special status for occupied Donbas and the president’s team is making a point of emphasizing this. Formally, that is true. Despite Russia’s insistence that such special status be enshrined in Ukraine’s Constitution, the Minsk accords never directly required such amendments: they only mention decentralization and recognizing the special conditions in the occupied territories and agreeing changes with their “representatives.” Zelenskiy has chosen to focus simply on the term decentralization. And so there really is no mention of Donetsk or Luhansk Oblast in the text of his bill.

The other news that critics of the idea of constitutional amendments immediately picked up on was that the bill does not mention any other territorial units, either – other than Kyiv and the Autonomous Republic of Crimea. This means that the names of the country’s 27 regions – 24 oblasts, the cities of Kyiv and Sevastopol, and Crimea – will be removed from the Constitution altogether. Instead, there will be only a mention of the peninsula and the capital, whose “legal status” will be defined in a separate law. The proposed version of Art. 133 of the Constitution is almost identical to what was proposed by Poroshenko in 2015, other than that Poroshenko’s proposed amendment left in the mention of special status for Sevastopol.

If Zelenskiy’s bill is passed, Sevastopol will also disappear from the text of the Constitution, leaving its status up in the air. It’s not part of any oblast or region like all other cities and towns other than Kyiv. The Crimean city also has not formed a community, as it is currently occupied. Initially, Sluha Narodutried to take advantage of the situation, saying that the party was actually against any kind of special statuses. Later, MP Bohdan Yaremenko wrote on his Facebook page that they had agreed that “in preparing the bill for second reading, revisions to the transitional provisions would designate that changes in the status of Sevastopol would take place after deoccupation.” However, it seems that Yaremcnko had muddled two processes: the passing of a bill and the amendment of the Constitution. The latter did not involve any alterations to the text after amendments were sent to the Constitutional Court – analogous to first reading.

It’s possible that the situation with Sevastopol really did arise because the Office of the President decided to avoid the term “special” and “specific,” which had burned their predecessors. On the other hand, this did not help the Zelenskiy administration avoid accusations of secretly working towards federalization. The main disputes here are over the new version of Point 16, Art. 92 of the Basic Law. This article contains a list of issues that can only be governed by laws, not via presidential decrees, Cabinet resolutions or lesser acts. The specific rule today is stated thus: “Only laws of Ukraine may govern the following:... (16) the status of the capital of Ukraine and the special status of other cities.” In Poroshenko’s 2015 bill of amendments to the Constitution, the proposition was to narrow the rule to “the status of Kyiv as the capital of Ukraine.” In his version, Zelenskiy, on the contrary, significantly expands this rule so that only laws can establish “the territorial administrative institutions, the legal status of territorial administrative units, and the status of Kyiv as the capital of Ukraine.”

Opponents of the bill focused on the phrase, “legal status of administrative-territorial units.” Their arguments can be summed up as: these rules will allow the Rada to pass any number of laws with different ranges of authority and rights for different regions, districts and even communities. In this way, instead of just occupied Donetsk and Luhansk Oblasts, Ukraine could end up with hundreds of “special” regions, although this word is nowhere to be found in the text of the Constitution. Moreover, such actions would not even need a constitutional majority of 300 votes, the way it is now, but a simple legislative majority of 226 votes.

Those who favor the bill claim that these concerns are far-fetched, as this bill to amend the Constitution grants special legal status only to Kyiv as the capital. But knowing the Ukrainian – soviet, imperial Russian – tradition of interpreting laws according to the political situation of the day, it’s easy to anticipate that the final word on this will belong to the Constitutional Court of Ukraine at the request of those same MPs or the president himself. And knowing the standard practice of this court, it can be confidently stated that the risk is very high that this rule will be applied as Bankova sees fit.

Incidentally, even without this, the Zelenskiy bill substantially expands the role of the Constitutional Court in terms of defending the territorial integrity of the country. Today’s oblast governors and county state administrations will be replaced by prefects with the power to oversee the legitimacy of decisions made by local government agencies. These prefects will rotate every three years and will not directly interfere in local administration or function as part of the executive branch. However, they will have the power to challenge the decisions of local government agencies. The final decision in any dispute will be up to local courts.

In cases where a local government decision is deemed to constitute a threat to the country’s sovereignty and national security, the prefects will be able to appeal to the president in person to suspend such acts together with a suspension of all activities by all locally elected bodies. At this point, the Constitutional Court enters the picture and has seven days to decide who’s right. A similar rule was in Poroshenko’s original bill, except that there was no seven-day timeframe for the Constitutional Court to make a decision. It seems unlikely that the Court will be able to avoid responsibility for delaying a decision sooner or later.

Yesterday’s government and today’s opposition have accused Zelenskiy of also trying to usurp power. His proposed institution of prefects is the focus of their attacks. Yet such accusations are odd, to say the least, because the Poroshenko bill contained a very similar set-up – only the “prefects” were called “responsible before the president” and “subordinate and reporting to the Government.” In the new bill, the prefects are simply “subordinate and reporting to the president and Cabinet.” Some changes are made but they are not substantive.

Far more worrisome are the endless references to laws that have yet to be drafted, let alone passed. Decentralization reforms could have been completed in two ways. Firstly, by passing a package of bills among which the main one established the administrative territorial structure, and then to amend the Constitution. Many of those who are now advocating the Zelenskiy bill previously supported precisely this approach. The second is to do its opposite. Both the current and previous administrations preferred this approach.

But the unknown tends to generate distrust and fear. The legal status of the regions? To be defined by law – eventually. The legal status of prefects. Also to be defined, later. And there’s also someone called the temporary ombudsman, the person who will administrate the region should the Constitutional Court decide that there’s a threat to national security emerging in a locally elected government and disband it. The ombudsman’s legal status? Also TBD, later. In the end, what are the district and oblast councils in the Zelenskiy bill needed for, anyway? The fiscal survival of the community will be handled by the community council. But this, too, is to be decided by a piece of legislation that has yet to be made public.

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So far, the Zelenskiy administration has not even publicized the cost of setting up new okruh-style counties to replace the old rayon-style counties, and the new oblasts, which could end up being more or fewer than the current 24. All Ukrainians have, so far, is an announcement by MP Oleksandr Kornienko (SN) that there will be around 100 counties, clearly far fewer than the current 490. Kornienko had promised to “come out with a draft of the new administrative structure and begin public debate over it” by the end of November... Sluha Naroduhave also promised a “package of bills” on decentralization, but ended up only producing a number of constitutional amendments.

The first vote on this bill and its submission to the Constitutional Court for review needs only 226 votes, which could happen within days after this publication comes out. Beyond that, SN will have to get other parties on board to get the necessary constitutional majority of 300 votes. Hopefully, they will have a published package of bills at that point, which will be safer for Zelenskiy, for decentralization, and for the people rallying outside the Verkhovna Rada.

 

Translated by Lidia Wolanskyj

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