Oleksii Sydorchuk – Constitutional reform in Ukraine

This is a guest post by Oleksii Sydorchuk, PhD student at the National University of Kyiv-Mohyla Academy in Kyiv, Ukraine

img_9161

On July 16, the Ukrainian parliament (Verkhovna Rada) sent a draft of the constitutional amendments proposed by President Poroshenko to the constitutional court to review their conformity with the basic law. The document was the result of several months of activity by the Constitutional Commission that was created in March 2015 by Poroshenko. The draft developed by the Commission in late June was sent to the Venice Commission of the Council of Europe which made a number of recommendations. Some of them were included in the latest version of the draft.

Unlike the previous constitutional reform of 2004, the proposed constitutional changes do not deal directly with the highest state institutions – president, parliament and cabinet. Instead, they are focused on so-called decentralization, i.e. the transfer of competences and resources from central-level executive bodies to local self-government bodies. The issue of decentralization was placed on political agenda immediately after the new authorities came to power in February 2014 following the Euromaidan events. Since then it has been addressed in several pieces of legislation. The proposed constitutional changes are likely to indirectly influence the president’s powers, as well as relations between the president and cabinet.

On the surface, both the president and cabinet are to be stripped of their present competences in controlling local governments. The presidential draft envisages the liquidation of local state administrations, the heads of which are currently appointed and dismissed by the president on cabinet’s nomination. Currently, these figures dominate the decision-making processes at the regional and local levels. In their place, prefects (borrowed from French legal system) will be created. They will be appointed and dismissed in the same way, but they will have limited powers. Prefects will no longer coordinate and direct actions the local self-government bodies, but will control their activity, having the right to suspend acts of local agencies if the latter violate existing laws. According to the draft, prefects will be responsible to the president, but also accountable to the cabinet.

The president, while losing important points of influence over local governments, will obtain several new ones. Most notably, the president will get right to dissolve local councils if the latter adopt unconstitutional decisions that threaten state sovereignty, national security or territorial integrity. This provision is clearly aimed at preventing separatist-minded activities and declarations like the ones made by local councils in Eastern and Southern Ukraine in early 2014 during Russia’s annexation of Crimea and the upheavals in the Donbas region. Critics of such a provision, however, point to the vagueness of what is meant by such a ‘threat’, warning that it could give the president the opportunity to interfere into local self-government. In order to alleviate this concern, the president will have to refer the matter to the constitutional court for approval. Yet, the ability of the court to serve as independent arbiter is questionable, given its history of highly controversial and politically motivated decisions.

What has largely escaped the attention of Ukrainian observers are the possible implications of the proposed constitutional changes for relations between the president and the cabinet with regard to the regional level. Prefects, according to the draft, will coordinate the activities of regional executive bodies, which are formally subordinated to the cabinet, not the president. However, with the ability to appoint and dismiss prefects, the president will most likely not only preserve some of his influence over local governments, but also gain new ways of influencing the cabinet’s responsibilities for regional bodies through prefects. The implementation of such a provision could lead to an increase in the president’s involvement in the cabinet’s affairs at the regional level and to conflict between the two.

The preservation of double responsibility of prefects and the introduction of new overlapping spheres of competences stem directly from the existing semi-presidential form of government. In February 2014, during the last days of Euromaidan, Verkovna Rada voted to re-introduce the premier-presidential constitutional model which had been in operation from 2006 to 2010. Two months later, Ukrainian legal experts proposed further changes to the form of government and even elaborated their version of constitutional amendments which would have decreased the president’s executive powers and eliminated his influence over regional executive bodies. This proposal was, however, ignored by both president and parliament, and the idea of changing the form of government was put aside.

There are several reasons why the current constitutional process does not attempt to review the existing semi-presidential framework. They relate mostly to president who is usually the agenda-setter in the process of constitutional reform in Ukraine. On the eve of May 2014 presidential elections, Poroshenko expressed his comfort with the institution’s constitutional powers and vowed not to change them. In July 2014 he, however, did try to initiate changes to the constitution which would have given him slightly more powers, but he quickly abandoned this idea following a hostile reaction from the majority of parliamentary factions. Since then, even though his parliamentary support base has increased after the October 2014 parliamentary elections, the deputies’ reluctance to surrender their constitutional powers to president has forced Poroshenko to forego any further attempts at increasing his powers.

Moreover, during his tenure, President Poroshenko has demonstrated a much more consensual approach to handling relations with the cabinet than his predecessor, Viktor Yanukovych. In this, he has been partly aided by Prime Minister, Arseniy Yatseniuk, who has also opted for cooperation instead of confrontation in most cases. Paradoxically, the relatively peaceful coexistence of Poroshenko and Yatseniuk could also be explained by the pressure of important external factors, such as need to resist the encroachment of pro-Russian separatists in Donbas and to prevent the economic collapse of the country. Such profound threats have served as a mobilizing factor which has preserved a high level of cooperation among key political actors. However, if they lose their relevance, cracks inside ruling coalition could start to unravel.

The proposed constitutional amendments, if they are embraced by both the constitutional court and a two-thirds majority of parliament, could add another impetus to potential conflicts inside the executive branch. Therefore, without any revision of the existing premier-presidential model with its division of executive powers between the president and cabinet, even efforts aimed at decentralization could lead to undesirable consequences in terms of the relations between the two ‘heads’ of executive. If Poroshenko’s constitutional draft is supported by deputies, he could gain some competences from cabinet. In the long term the Ukrainian political system will remain vulnerable to intra-executive conflicts.

Oleksii Sydorchuk is a PhD student in political science at the National University of Kyiv-Mohyla Academy in Kyiv, Ukraine. His spheres of interest cover semi-presidential regimes, comparative constitutional engineering, and post-communist politics. He also works as political analyst at the Ilko Kucheriv Democratic Initiatives Foundation, Ukrainian non-governmental think tank.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.