Constitutional Hurdle-Race: Contemporary Constitution-Making in Ukraine

It has been almost one month since Ukrainian President Petro Poroshenko established the Constitutional Commission and invited governmental bodies, non-governmental actors and international organizations to suggest their nominees to the Commission. Being an advisory body under the President, the Commission is supposed to become the major driving force of the ongoing constitutional reform. The establishment of the Commission has been a long-anticipated step in the constitutional reform process that began shortly after the Maidan Revolution in February 2014, with the restoration of the 2004 version of theConstitution. This process has been considerably delayed, partly because of the necessity of holding both Presidential and Parliamentary elections and partly because of the President’s failed attempt to get his constitutional amendment bill (Presidential Draft) approved by the Verkhovna Rada [Parliament] in June 2014.

Scylla and Charybdis of Constitution-Making in Times of Crisis

The Venice Commission, an authoritative advisory body of the Council of Europe that provides legal advice on constitutional matters, identified the three requirements of a democratic constitution-making process in (i) “transparency, openness and inclusiveness,” (ii) “adequate timeframe” and (iii) “conditions allowing pluralism of views and proper debate of controversial issues.” The Commission has stressed that a sustainable constitutional reform is only possible as a result of public debate that involves different political forces, civil society organizations, representatives of academia and the mass media. It also recommended avoiding strict time constraints on the ground that the constitutional text “should follow the progress made” in public debate and not the other way round. In line with these criteria, the Commission criticized President Poroshenko’s Constitutional Amendment for a lack of public debate and civil society involvement in the drafting process.

How realistic are these requirements in the context of contemporary Ukraine? Have Ukrainian authorities done everything in their power to ensure that the constitutional reform meets these criteria?

The Constitutional Commission is chaired by the Chairperson of the Verkhovna Rada and consists of 59 members appointed by the President. These represent the Academy, the Judiciary, political actors and civil society organizations. The President also approved a list of 13 persons representing international organizations, including the UN, the EU, the Council of Europe and the OSCE, to serve as advisors and observers. Although these external actors cannot vote on decisions that the Commission adopts, their involvement may be useful in terms of providing expertise on issues crucial to the agenda of the Commission.

The composition of the Constitutional Commission demonstrates that the primary consideration was to create an expert advisory body under the President with political actors involved only to give it democratic legitimacy. The rationale is that the Commission is expected to create a draft law on constitutional amendments that subsequently needs to be passed by the Verkhovna Rada. While giving the lion’s share of seats to legal professionals and politicians is not in itself problematic, the weak representation of civil society institutions in the Commission calls into question the inclusiveness of its functioning. The restricted timeframe within which the Commission must work is another shortcoming. This fails to allow for wider public consultation and hinders substantive deliberation within the Commission.

The reasons for introducing a restricted timeframe are twofold. Firstly, the Constitution requires a convoluted amendment process. After submission to the Verkhovna Rada, a draft law on constitutional amendments must pass scrutiny by the Constitutional Court and two consecutive – majority and super-majority – votes in the Verkhovna Rada. Thus the initial idea of having the renewed Constitution in force before the end of 2015 may only work if draft amendments are submitted to the Verkhovna Rada before the end of its current session in July, with a view of passing the amendments through super-majority vote later in the Fall. Secondly, the issue of decentralization of power is even more urgent. Volodymyr Groysman, the Chairman of the Constitutional Commission, at its second session on 15 April, insisted that the draft amendment on local government should be submitted to the Verkhovna Rada by late May in time for municipal elections scheduled for October 2015.

The Commission’s working group on decentralization is going to consider the draft amendments on 12 May and the Commission is supposed to vote on it at its 16 May session. Such busy and restricted timeline leaves no room for public consultation about any constitutional amendment before the President submits it to the Verkhovna Rada. Although public consultation between the first and second voting on the amendments in the Verkhovna Rada is not impossible, it is unlikely to produce any impact on the draft itself as the latter cannot be changed after the Constitutional Court’s opinion.

The current amendment process falls short of the requirements of inclusiveness and civil society involvement stressed by the Venice Commission. The tight deadlines coupled with the necessity of gaining a super-majority in the Verkhovna Rada have practically trumped public inclusion. The Ukrainian Constitutional Commission might be able to secure consensus between the President and major political parties in the Parliament; however what it cannot do – despite the promises of its founding decree – is to “ensure broad public … discussion of proposals for constitutional reform” and to establish “an effective mechanism of interaction between state bodies, civil society and international organizations.”

What is at Stake? Decentralization versus Federalization

Given the ongoing conflict and secession efforts in the eastern regions, devolution of power has become the central issue of the constitutional amendment process. The Constitutional Commission was established shortly after the Second Minsk Agreementsthat, as a key element of the conflict resolution, require the adoption of a new Constitution, to come into effect by the end of 2015. Indeed, even before the agreements reached in February, Russian authorities claimed that “federalization” of the country was the only way to stop the hostilities in the Ukrainian East. These demands could have excited expectations that the negotiations on the status of the separatist-controlled Eastern regions would be integrated into the ongoing process of constitutional reform.

These expectations are unlikely to come true. Despite their demands, the representatives of the separatist territories have not been considered as stakeholders in the current constitution-making process. On many occasions Ukrainian officials have repeated that the decentralization reform is a separate issue and that federalization is unacceptable. Even when Petro Poroshenko stated that he would consider the possibility of a nation-wide referendum on federalization, he separated this issue from the ongoing decentralization reform. The eastern regions controlled by separatist forces are de jure governed by the Lawon the special regime of local governance in “particular districts of Donetsk and Lugansk regions.” The Verkhovna Rada hasdesignated these territories as temporarily occupied. This legal framework grants the local communities certain rights and privileges such as the right to be involved in the appointment of local prosecutors and judges, amnesty rights, the possibility to be engaged in trans-border cooperation with Russia and special status of Russian language in education and public affairs. The law sets the transitional period for three years. However, the operation of these provisions is conditional upon compliance with the Constitution of Ukraine and the results of the upcoming local elections.

Dubious Duality: Current Territorial Structure and Its Drawbacks                                                                         

It is clear that the amendment on decentralization of power will be the first substantive issue to be addressed at the Commission’s meeting in mid-May. The proposed reform on local governance has been designed to remedy the deficiencies of the existing system.

The current territorial structure of Ukraine as a unitary state is established by the Constitution. In practical terms, this means that there is a duality between territorial offices of state administration and elected local councils, worsened by their overlapping competencies and ambiguous accountability. Self-governance in its pure meaning exists only at a lower level within the three-tier structure of the country. Thus in smaller cities, towns and villages, both local councils and mayors are elected by popular vote. In districts (raions) and counties (oblasts), there are also councils that are elected by citizens, but executive powers are performed by the respective offices of state administration (Raionna or Oblasna derzhavna administratsiya). The power to appoint the heads of territorial offices of the state administration is vested in the President, who at the same time acts on the advice of the Council of Ministers.

Current arrangements have been evaluated as “undemocratic, unresponsive and inefficient.” Citizens are significantly limited in their capacity to influence policy decisions and to hold the authorities accountable on a local level. Councilors in districts and counties lack decision-making power, which is instead concentrated in the hands of the state administration. The situation is worsened by the fiscal arrangements that make local authorities financially dependent on the central government. Thus in practice the existing system allows little room for local agenda-setting, since the resources of the state administration as well as the careers of the heads of the state administration in the localities depend on how they implement central government directions rather than on their responsiveness to local needs.

This constitutionally entrenched dual system has also been prone to maintaining conflict primarily between locally elected councilors and state administrations appointed by the central government. On one hand, the heads of state administrations enjoy greater authority than the counties and districts as units of local self-governance. On the other hand, the Constitution provides local councils with the right to withdraw confidence from the head of the territorial state administration. This is problematic from a theoretical perspective, since how does one withdraw something one does not give? Although a local vote of no confidence is unlikely to result in the removal of the head of state administration, owing to the need for a super-majority for such a motion to pass, the possibility of removal remains to be a potential source of conflict.

Anticipated Model: Details Need to Be “Polished”?

The outline of the decentralization model that is now on the table was first presented in the Concept of the Reform of Local Self-Government and Territorial Organization of Government in Ukraine. It later took shape in the Presidential Draft, which was inspired by the Polish system of local self-government and submitted to the Parliament in June 2014. There seems to be aconsiderable consensus on the model of decentralization among major stakeholders within the country. The decentralization amendments were also encouraged by the Venice Commission, that, among others, noted that the new arrangements met the requirements of the European Charter of Local Self-Government and stressed that the reform “might enable the establishment of a modern municipal government in accordance with the principles and the spirit” of the Charter. Given the accute lack of time, the Constitutional Commission’s working group on decentralization will likely build its suggestions on the Presidential Draft.

The President’s Draft proposed to keep the three-tier territorial structure is kept with the establishment of larger communities (gromadas) that are supposed to include smaller residential units. It suggested abolishing the duality between local self-governance and state administration to enable district and regional councils to elect their own executive authorities. The model is based on the principle of subsidiarity to avoid overlapping competencies between authorities on different levels. The suggested amendments also aim at reinforcing the financial independence of the local self-government.

The Poroshenko Draft also envisages the central government’s supervision over the legality of decisions handed down by the authorities of local self-government. This is arguably the most controversial issue the working group faces, as the power to supervise the legality and constitutionality of local decisions would be vested in representatives of the President, who could appoint and dismiss them at his discretion. This would further expand presidential powers, especially given that the supervisory authority entails the power to suspend the allegedly illegal or unconstitutional decision of a local-government body - and even dissolve it, if the unconstitutionality is established by the Constitutional Court. The decentralization working group should lend an ear to the Venice Commission, which in this regard cautioned from granting such powers to the President. Even in the invoked Polish decentralization model – according to Chapter VII of the Polish Constitution – the central government official (wojewoda) supervising the legality of local government actions is appointed by and is accountable to the Prime Minister, not the President. The Polish Constitution does not provide for the possibility to suspend the decisions of local self-government bodies either. The dissolution is only possible in cases of flagrant violation of the Constitution or a statute and the power to dissolve the local self-government body is not granted to an individual, the President or the Prime Minister, but to the Polish Parliament, the Sejm.

The constitutional issues of local governance are not matters confined exclusively to the local government. As Ukrainian constitutional history has shown, the choices pertaining to territorial structure may contribute to attaining or indeed failing to reach a balance between the main political actors on national level – the President, the Cabinet of Ministers, and the Parliament.

Constitution-making in times of crisis is a task that requires hard and often prompt choices. In Ukraine, time constraints urge the Commission to increase its pace, thus leaving the rest of the society in the role of distant spectators. Nevertheless the constitutional reform process could play a key role in guiding the country out of a complex crisis characterized by external threats to its territorial integrity, secession efforts of its eastern regions, and deep economic crisis in the midst of political and societal fragmentation. The array of challenges has put not only the government but also the Constitutional Commission itself to the test. Whether the reform process will be able to alleviate the ongoing conflict and consolidate democracy is yet to be seen. However, the extremely tight timeline rings warning bells and calls for additional safeguards to ensure the process is inclusive not only on its face.

Maxim Timofeev is an Associate Professor at the Department of Law, European Humanities University (Vilnius, Lithuania) and an Editor-in-Chief of the Journal of Constitutionalism and Human Rights.