BY
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.
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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