Dan­ger­ous li­aisons?

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

The Ukrainian Week - - CONTENTS - An­driy Holub

On the red lines that keep haunt­ing Volodymyr Ze­len­skiy

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.

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 Nar­odu tried 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 Yare­menko 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 far­fetched, 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.

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. THE SEC­OND IS TO DO ITS OP­PO­SITE. BOTH THE CUR­RENT AND PRE­VI­OUS AD­MIN­IS­TRA­TIONS PRE­FERRED THIS AP­PROACH

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. 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 Nar­odu have 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.

Sluha Nar­odu

The equa­tion for 300. It's al­ready ev­i­dent that the pres­i­dent will have prob­lems get­ting the nec­es­sary votes to pass the fi­nal amend­ments to the Con­sti­tu­tion: the bill has been soundly crit­i­cized by all fac­tions ex­cept

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