Uni­tar­ity un­der as­sault

In what way do Ze­len­skiy’s ini­tia­tives re­gard­ing de­cen­tral­iza­tion, ref­er­enda and dual cit­i­zen­ship threaten the in­tegrity of the Ukrainian state?

The Ukrainian Week - - CONTENTS - Maksym Vikhrov

How Ze­len­skiy's ini­tia­tives threaten the in­tegrity of the Ukrainian state

Pres­i­dent Volodymyr Ze­len­skiy’s first at­tempt to deal with de­cen­tral­iza­tion in turbo mode was a flop. Bill #2598, which pro­posed a num­ber of amend­ments to the Con­sti­tu­tion, failed to even find sup­port at the com­mit­tee level in the Verkhovna Rada. Pub­lic re­ac­tion was neg­a­tive. The big­gest op­po­si­tion arose against the idea of a sys­tem of pre­fects, which was sup­posed to re­place the oblast and county state ad­min­is­tra­tions, in­sti­tu­tions con­trolled by the pres­i­dent and op­er­at­ing in par­al­lel to elected coun­cils at the same level. Be­cause of the much broader pow­ers the pre­fects would wield, they were im­me­di­ately chris­tened “the pres­i­dent’s eyes and ears.” But the main threat from Bill #2598 lies else­where. Cou­pled with a num­ber of re­lated ini­tia­tives by this ad­min­is­tra­tion, it could pose a se­ri­ous threat to the uni­tar­ity of the Ukrainian state and set the stage for un­pre­dictable pro­cesses in the re­gions.

The bill in­cludes pro­vi­sions stat­ing that Ukraine’s gov­ern­ment “is based on uni­tar­ity,” but at the same time pro­poses amend­ing the Con­sti­tu­tion to es­tab­lish that the coun­try’s ter­ri­tory con­sists of com­mu­ni­ties that con­sti­tute the pri­mary ad­min­is­tra­tive ter­ri­to­rial units and the pri­mary sub­jects of lo­cal gov­ern­ment, which will also be given the sta­tus of le­gal per­sons. The pro­ce­dure for es­tab­lish­ing and elim­i­nat­ing com­mu­ni­ties, their bor­ders and names are sup­posed to be de­fined in sep­a­rate leg­is­la­tion that has not been pre­sented to the pub­lic or ex­perts — in short, no one knows what it might be. This same will be ap­plied to “cir­cuits,” which are sup­posed to re­place the cur­rent coun­ties, and oblasts. Like­wise, the ul­ti­mate sta­tus of may­ors or heads of com­mu­ni­ties and elected coun­cil mem­bers has not been writ­ten into law, nor has the pro­ce­dure for set­ting up com­mu­nity ex­ec­u­tive agen­cies and what their pow­ers will be.

In prac­tice, this means that, once th­ese amend­ments have been brought into force in the Con­sti­tu­tion, giv­ing ORDiLO spe­cial sta­tus should be much eas­ier: all it will re­quire is a sep­a­rate bill. As long as there is a mono­ma­jor­ity, that should not prove dif­fi­cult to achieve. Yet it could be just the be­gin­ning of prob­lems. If the prece­dent of “spe­cial sta­tus” is ap­plied to oc­cu­pied Don­bas, it could be­come tempt­ing to other re­gions as well. Right now, it’s al­most im­pos­si­ble for a re­gion to squeeze any priv­i­leges out of Kyiv, but if this bill is passed, it will mainly de­pend on whether the lo­cal lead­er­ship can of­fer a se­ri­ous enough ar­gu­ment.

The bill also pro­poses amend­ing the Con­sti­tu­tion to have lo­cal gov­ern­ment hap­pen through, among oth­ers, lo­cal ref­er­enda. So far, there is no es­tab­lished pro­ce­dure for hold­ing such ref­er­enda but the Ze­len­skiy team prom­ises to fix this gap. Ac­cord­ing to the pres­i­dent, a bill on na­tional ref­er­enda will be passed shortly, mainly in or­der to de­cide the pro­ce­dure for for­eign­ers to buy land in Ukraine. But there’s an en­tire pack­age of bills al­ready wait­ing to be passed.

“This pack­age in­cludes bills on na­tion­wide and statewide ref­er­enda, lo­cal ref­er­enda, and on pub­lic veto,” Speaker Dmytro Razumkov ex­plained at the end of Novem­ber. “Some other bills may be added to the list that I also ex­pect to be­come law.” In­ci­den­tally, Vik­tor Medved­chuk, the main lob­by­ist for “peo­ple power” and fed­er­al­iza­tion, has al­ready ex­pressed whole­hearted sup­port for all th­ese bills pro­posed by the Ze­len­skiy gov­ern­ment. It’s also pos­si­ble that it’s not for­mer Party of the Re­gions politi­cians who sup­port this idea. In the bat­tles over the land mar­ket, the idea of ref­er­enda was also pro­moted by Yu­lia Ty­moshenko’s Batkivshch­yna and a slew of other pop­ulist par­ties. One way or the other, or­ga­niz­ing the mechanism for lo­cal and na­tional ref­er­enda won’t be dif­fi­cult — but its con­se­quences could be bad, in­deed.

In 2014, ref­er­enda be­came Rus­sia’s cover for tear­ing down state gov­ern­ment, first in Crimea and then in the Don­bas. Of course, then it was just an im­i­ta­tion of “peo­ple power,” rather than gen­uine, le­git­i­mate plebiscite­s. But if the in­sur­gents have a func­tion­ing and — more im­por­tantly — law­ful mechanism for car­ry­ing out a ref­er­en­dum, Ukraine could see a se­ries of lo­cal crises in the style of mini “brex­its.” The facts so far point to the real like­li­hood of a neg­a­tive sce­nario. The Agency for Leg­isla­tive Ini­tia­tives has cal­cu­lated that 178 ap­pli­ca­tions for lo­cal ref­er­enda were reg­is­tered over 1991-2012, some of which had a clearly an­ti­s­tate pur­pose. It’s worth men­tion­ing the 1994 plebiscite in the Don­bas, which asked vot­ers about fed­er­al­iza­tion and a sec­ond state lan­guage. In 2002, Kharkiv City Coun­cil ini­ti­ated an ad­vi­sory ref­er­en­dum on a sec­ond state lan­guage and in 2006, the Verkhovna Rada of Crimea tried to do the same. Clearly, not all of th­ese where sub­ver­sive for Ukraine, but it’s not worth as­sum­ing the pos­si­bil­ity ex­ists. The specter of “emer­gency coun­cils” that pop­ulists con­tin­u­ously ap­peal to is easy enough to raise. In prac­tice, it could sim­ply strengthen lo­cal elites by giv­ing them a pow­er­ful in­stru­ment for hold­ing Kyiv hostage, while Kyiv will have an ex­cuse to act gen­er­ously and hand out priv­i­leges to the re­gions.

At the same time, the threat to Ukraine’s uni­tar­ity could come not just from lo­cal elites but also from for­eign forces try­ing to dam­age the re­la­tion­ship be­tween Kyiv and the re­gions. In the Don­bas, that’s the Rus­sian Fed­er­a­tion, which is try­ing to ar­range au­ton­omy for ORDiLO by black­mail­ing the cap­i­tal through war. The lat­est trick was is­su­ing Rus­sian pass­ports to res­i­dents of the oc­cu­pied ter­ri­to­ries. Mean­while Hun­gary has been is­su­ing its own pass­ports for nearly two decades in Zakarpat­tia. The scan­dal in Bere­homet in 2018, in which the lo­cal Hun­gar­ian con­sul was dis­missed from Ukraine for is­su­ing such pass­ports — in con­tra­ven­tion of Ukraine’s Con­sti­tu­tion, which doesn’t rec­og­nize dual cit­i­zen­ship — did not lead to any fun­da­men­tal break­throughs. Ac­cord­ing to Ghen­nadiy Moskal, the for­mer gover­nor of the oblast, Hun­gary has been sup­pos­edly re­scind­ing its pass­ports on a fairly large scale. How­ever, Am­bas­sador Ist­van Ig­yarto in­sists that th­ese doc­u­ments were is­sued in com­pli­ance with Hun­gar­ian law and this is “Hun­gary’s sovereign right.” In short, he doesn’t see any rea­son to stop this prac­tice.

Just how many Zakarpat­tians have gained dual na­tion­al­ity so far is any­body’s guess. In 2015, the Hun­gar­ian Gov­ern­ment men­tioned 100,000. How many Ukraini­ans have taken Rus­sian pass­ports, vol­un­tar­ily or un­der pres­sure, is also hard to say. But it’s ob­vi­ous that the part of Ukraine’s pop­u­la­tion that has been “pass­portized” is clearly seen is pro­vid­ing the coun­tries do­ing this with lever­age against Ukraine, espe­cially if the re­gions are given the right to hold their own ref­er­enda.

Mean­while, the new gov­ern­ment, rather than fight­ing dual cit­i­zen­ship, plans to le­git­imize it. In or­der to draw Ukraini­ans work­ing and liv­ing abroad back to their home­land, Ze­len­skiy an­nounced he would take this step, back dur­ing his elec­tion cam­paign. Later, he pre­sented the idea of of­fer­ing dual cit­i­zen­ship to eth­nic Ukraini­ans in the di­as­pora. In mid-De­cem­ber, the nec­es­sary pres­i­den­tial bill, #2590, was sub­mit­ted to the Verkhovna Rada for con­sid­er­a­tion. Rather than propos­ing that the rule about only one cit­i­zen­ship be re­moved from the Con­sti­tu­tion, those tak­ing out Ukrainian cit­i­zen­ship will no longer be re­quired to ab­di­cate their other cit­i­zen­ship. The State Migration Ser­vice has stated that this nov­elty is prepa­ra­tion for ac­tu­ally le­gal­iz­ing dual cit­i­zen­ship.

“You might say that dual cit­i­zen­ship is a pro­gram to at­tract­ing im­mi­grants to Ukraine,” says SMS Di­rec­tor Maksym Sokoliuk. “There will be re­stric­tions on cer­tain coun­tries, in­clud­ing Rus­sia.” How­ever, this could turn out to also be that the new ad­min­is­tra­tion is pre­par­ing in this way to “re­solve” the prob­lem of hold­ers of Rus­sian pass­ports in ORDiLO: by sim­ply le­gal­iz­ing their pres­ence in the re­gion. There’s no need to think long to re­al­ize that in this same way, Ukrainian cit­i­zen­ship will be di­luted more than just in the Don­bas. Although most peo­ple typ­i­cally ac­quire for­eign pass­ports of prac­ti­cal con­sid­er­a­tions, rather than po­lit­i­cal ones, the grow­ing num­ber of Ukrainian cit­i­zens hold­ing other pass­ports will sooner or later be­come yet an­other chal­lenge to the coun­try’ unity.

In the­ory, Bill #2598 an­tic­i­pates that the pre­fects will pre­cisely be the pre­ven­tive mea­sure against un­rest at the lo­cal level. Should a lo­cal gov­ern­ment pass some le­gal act that is un­con­sti­tu­tional, the pres­i­dent will be able, at the re­quest of the pre­fect, to im­me­di­ately stop the ef­fect of the law and to even cut the pow­ers of that guilty agency and ap­point a tem­po­rary proxy. If the Con­sti­tu­tional Court con­firms the sus­pi­cion, the lo­cal gov­ern­ment will have to call a snap elec­tion and those guilty of the rul­ing will be held re­spon­si­ble. How­ever, even this kind of set-up has weak spots, be­cause the­ory doesn’t al­ways work out as planned in prac­tice. Oblast ad­min­is­tra­tions were sup­pose to over­see the work of lo­cal gov­ern­ments in the past, but they proved com­pletely in­ef­fec­tive, to use the Don­bas in 2014 as an ex­treme ex­am­ple. How did that hap­pen? The trou­ble is that re­la­tions be­tween the cap­i­tal and the re­gions of­ten turn out to be based on mu­tual de­pen­dency, which in­evitably leads to a wide range of com­pro­mises. Typ­i­cally, Kyiv closes its eyes to lo­cal self-deal­ing in re­turn for rel­a­tive peace in the prov­inces, the sup­port of lo­cal lead­er­ship in an elec­tion, and so on. This means that, whether they’re called gov­er­nors or pre­fects — who will be ap­pointed in ex­actly the same man­ner — they aren’t likely to give up the habit of com­pro­mise. The only dif­fer­ence is that th­ese will now be de­ter­mined by the po­lit­i­cal sit­u­a­tion — and at times the par­ties in­volved could even be out­side forces.

In this way, the pres­i­dent’s ini­tia­tives taken as a whole are quite likely to strengthen the old cen­trifu­gal trends and even gen­er­ate new ones. If the en­tire set of re­formist con­cepts of this ad­min­is­tra­tion take on a real life, Ukraine’s re­gions will have more op­por­tu­ni­ties to fight Kyiv for a va­ri­ety of priv­i­leges, up to and in­clud­ing “spe­cial sta­tus” along the lines of what ORDiLO might still be granted. But the big­gest threats are posed by the right to run lo­cal ref­er­enda and le­gal dual cit­i­zen­ship. At the mo­ment, all this is only a hand­ful of bills, but they need to be taken se­ri­ously. Hav­ing a mono­ma­jor­ity at its ser­vices and it­self in­clined to op­er­ate in turbo mode, the gov­ern­ment could un­wit­tingly set in mo­tion pro­cesses that will cost Ukraine dearly to clean up af­ter the fact.

The Agency for Leg­isla­tive Ini­tia­tives has cal­cu­lated that 178 ap­pli­ca­tions for lo­cal ref­er­enda were reg­is­tered over 1991-2012, some of which had a clearly anti-state pur­pose

A win­dow of op­por­tu­nity. The no­to­ri­ously anti-Ukrainian Vik­tor Medved­chuk and his party are try­ing in ev­ery way pos­si­ble to take ad­van­tage of lo­cal ref­er­enda to pro­mote the fed­er­al­iza­tion of Ukraine

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