BY
No differently from the theatrics, populism,
and cacophony of discord that saw Bill №2217a “On Amendments to the
Constitution of Ukraine (concerning the decentralization of power) pass through
the Rada yesterday, undoubtedly Ukrainian main stream and social media will be
screeching and squawking over the 288 votes in favour for the proposed
amendments to the Constitution of Ukraine, and the “decentralisation” of powers
these amendments bring – if eventually adopted, which is not guaranteed.
Having garnered 288 votes (300 being a
constitutional majority), the Bill now heads to the Constitutional Court for
its consideration.
It has to be noted that the Venice Commission
is generally in favour having seen the amendments, returned them with
“recommendations”, and those “recommendations” were by and large acted upon.
Thus any constitutional issues are not likely to be with content but with
the procedures of the Bill passing through the Rada – if there were any.
Once given the Constitutional Court’s nod of
approval, the amendments must then be returned to the Rada where the Bill must
gather 300 or more votes in favour, lest it fail to meet a constitution
changing majority, to then be sent to the President to sign these amendments
into constitution changing force.
Ergo the 288 MPs that voted in favour today
cannot change or waver in their position over the Bill, and another 12 or more
must also be found to vote in favour – a vote probably some time in late
September/early October to allow the Constitutional Court sufficient time to
ponder the amendments thoroughly. Hurdles clearly remain.
Of the details, most eyes will wrongly be
looking at are the provisions relating to The Donbas and the area currently
controlled by The Kremlin and its proxies. So to deal swiftly with that
issue now.
The website of the Verkhovna Rada on 15th July,
made public a draft law on amendments to the Constitution of Ukraine concerning
the decentralization of power – marked “modified.”
The most important difference from this and the
first publication of the draft law of 1st July relates to the peculiarities of
local self-government in certain (occupied) regions of Donetsk and Lugansk
which are to be defined by a separate law – and not the Constitution of
Ukraine.
The 1st July edition of this provision in the
draft law was detailed in the “Transitional Provisions” of the bill, whereas
the accompanying notes to the amended draft law of 15th July proposed to fix
this norm within the Constitution of Ukraine.
As such, an amended Constitution will read “Property of the local self-government in parts of
Donetsk and Lugansk regions will be determined by a separate law.” That law is not yet adopted
and seems extremely unlikely to be adopted and implemented until The Kremlin
has removed all of its hardware and troops, as well as returning the control of
the internationally recognised Ukrainian borders to Ukraine. Don’t hold
your breath for any of that to occur swiftly, if at all.
Thus Ukraine is seen to progress along the
trajectory of the Minsk Agreement it signed, knocking the ball back into the
Kremlin court once more, when little has actually changed, or is likely to
change, regarding situation in The Donbas. Readers would be wise to
consider the Minsk Agreement a “framework” rather than the be all and end all
of a legislative and political solution.
As long as Ukraine is seen to be going s far as
it can reasonably be expected to go without any reciprocal and agreed actions
from The Kremlin in eastern Ukraine, then ammunition for extending sanctions
against Russia come 31st January there will be within Brussels as well as
provide additional ammunition to the USA, Canada et al.
What the constitutional amendments do, is
insure Ukrainian foreign policy, defence policy, national security, civil
rights and their monitoring etc., remain the obligation of the core and not the
regions – including The Donbas. Rightly so too, for it is the State that
must answer internationally as to why it is failing to adhere to any or all of
its ratified international obligations either in part or in full.
As such, whilst the USA is not a party to the
Minsk Agreements, clearly it is/has unofficially taken upon itself the role of
“guarantor” for what remains of Ukrainian territorial sovereignty and upholding
what is left of international law in the region – at least as far as eastern
Ukraine is concerned. Crimea is and will remain a “long grass” issue for
as long as the current Kremlin occupant remains in office – if not longer.
However, it is not wise to through out the good with the bad in pursuit
of the best in the current circumstances. Issues in eastern Ukraine
currently and necessarily take primacy.
That, so far as it goes, deals with the
proposed constitutional amendments with regard to The Donbas and the near term.
What is subsequently in any “separate law” that will be constitutionally
referred to, remains to be seen once/if Ukraine gets control of its borders
back. There may (or may not) be additional surrendering of
sovereignty/power in The Donbas – at least temporarily. Long term,
without Kremlin tanks, soldiers, proxies, a closed border, and little in the
way of local economics/infrastructure that has not been wantonly destroyed, it
seems a matter of time before additional funding/goodwill is sought from Kyiv
and thus that sovereignty is slowly either de facto or de jure returned.
The rest of Ukraine, however, will see the
significant changes to local governance and the holders of additional
responsibilities within local constituencies.
Of particular note, the amendments stipulate
that the territory of Ukraine is divided into the communities. The
community will be the primary unit in the system of administrative and
territorial structure of Ukraine.
Territorial communities according to the
amendments will manage the property in communal ownership, approve the budget
of the community and monitor its implementation, approve the program of
socio-economic and cultural development – controlling their implementation,
determine local taxes and fees, ensure the implementation of the results of
local referendums, will form, reorganise and liquidate communal enterprises,
organizations and institutions, as well take control over their activities, and
resolve other issues of local importance assigned to its jurisdiction by law.
A long way from the current centralised system,
and also the proverbial country mile from Kremlin insistence of a federal
Ukraine.
The envisaged outcome is that the separation of
powers in the system of local governance and their executive bodies at
different levels is based on the principle of subsidiarity, which corresponds
to the European
Charter of Local Self-Government.
In accordance with Article 4 of that Charter,
local governments within the law have a right to freely decide any matter that
is not excluded from their competence in the conduct of any other official
body. Public authority and administration therefore, is by and large, to
be borne by those closest to its constituents.
Regional Governors (Mr Saakashvili & Co)
will be renamed “Prefects”. They will no longer be appointed solely by
presidential decree, but will be nominated by and agreed by the Cabinet of
Ministers and President.
Fundamentally, their role does not change.
They remain the representative of the core, insuring that the
constitution and other laws of Ukraine are upheld, government policy is
effectively administered, and coordinate the activities of the lower structures
of local governance where applicable, etc.
The newly christened “Prefects” may
also suspend acts of local self-government based on their inconsistency
with the Constitution or laws of Ukraine, with a simultaneous appeal to a
court.
Should the peripheral wheel wobble to the point
of threatening the State, the amendments allow that in case the chairman of the
community council, district, or regional council act not in conformity with the
Constitution, threatening a violation of state sovereignty, territorial
integrity or present a national security threat, the President can stop the
action of the relevant act with a simultaneous appeal to the Constitutional
Court of Ukraine. He may then temporarily stop the powers of the head of
the community, the board of the community, district, or regional council and
appoint a temporary state commissioner.
If the court finds that any of the above have
acted unconstitutionally or outside of the law of Ukraine, sackings can (and
undoubtedly will) occur.
Issues relating to finances and taxation etc,
are not really worth the lines they will take to outline, given that what is
constitutionally proposed is already in existence under the umbrella of an
existing law.
That, for the time being, is a brief summary of
the proposed amendments to the constitution – and as/when/if they eventually
become part of the constitution, the situation in The Donbas does not radically
change per the amendments themselves – any radical change will come only via
“separate law” the constitutional amendments will refer to.
What will be far more interesting, is the
effect these constitutional amendments will have upon the standard and
accountability of local governance throughout the rest of Ukraine – after the inevitable
teething troubles of course.
Meanwhile, the constitutional cacophony that
began in the Rada in the preamble to passing this Bill, will undoubtedly
continue with screeching and squawking in the main stream and social media –
not to mention no shortage of jerking knees.
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