Domestic Policy-specific Characteristics of Constitutional Process Implementation in Ukraine

This article reviews Updating the Constitution as the Completion of the Revolution, a Ukrainian research project. It identifies the problem areas of full-scale implementation of constitutional reforms proposed by the nation’s leaders, as well as potential ways and means for overcoming existing obstacles on the path to a successful transformation of the country, while taking into account Ukraine’s domestic policy-specific characteristics and geopolitical realities.

This article reviews Updating the Constitution as the Completion of the Revolution, a Ukrainian research project. It identifies the problem areas of full-scale implementation of constitutional reforms proposed by the nation’s leaders, as well as potential ways and means for overcoming existing obstacles on the path to a successful transformation of the country, while taking into account Ukraine’s domestic policy-specific characteristics and geopolitical realities.

Ukraine’s constitutional process remains the focus of the country’s political life as it continues to generate intensive debates about its own outlook and the nature of any potential changes. This new wave of reform for Ukraine’s social and political life remains overshadowed by extremely heavy involvement by international political power centers in its domestic affairs, as the country still ranks near the top of the global agenda and remains a place where subjective geopolitical interests clash vigorously.

Research into the essence of Ukrainian political transformations has been largely fragmented. Whether they fail to keep pace of changing political dynamics or are reluctant to try and cover the entire range of future reform solutions, representatives of the Ukrainian expert community make only rare attempts at quality and comprehensive studies of the content, direction and potential implications of the large-scale constitutional reform the Ukrainian government is about to undertake. In this context, the joint research project of the International Center for Policy Studies and the Center for Policy and Legal Reform with support from the International Renaissance Foundation, presented to the Ukrainian public under the title Updating the Constitution as the Completion of the Revolution, stands out for its quality.

The report by the Ukrainian authors features an easy-to-read content structure and logical consistency, covers the full range of constitutional transformations, offers a competent assessment of existing issues, and sets forth the necessary trajectory for subsequent legislative developments. In the first chapter of the report, the experts analyze the Ukrainian constitutional process through the prism of existing historical experience, defining two ways for the establishment of a constitutional government – through voluntary delegation of social rights to newly created state institutions in the vein of the liberal tradition, or through a people’s fight for self-determination through regime change in the emergence of a despotic rule. According to the authors, the change of political power in 2014 can be described in terms of the latter. The inability of the authorities at the time to meet the emerging Euro-integration demands of the society majority set the scene for a protest sentiment. The Ukrainian experts also point out, correctly, that the powerful revolutionary impulse and its peculiar methods are no longer suitable for the functioning of minute nation-building mechanisms. That’s why a real evolution of Ukrainian political transformations can only be achieved if the process is approached in rational and logical terms and complete with practical implementations of professional political and legal reforms.

In the second chapter, the authors apply a systemic approach to describe the directions of required constitutional changes that are essential to Ukraine’s political progress: decentralization, strengthened independence of the judiciary, balanced separation of political power, and guarantees of civil rights and freedoms.

In chapters three and four, the experts identify a legal framework for the contemplated constitutional changes, analyze the procedural features for implementation of structural reforms, and suggest mechanisms for engaging the civil society to take part in constructive processes.

Without a doubt, the authors’ competent approach to the theoretical component of constitutional modernization is commendable. The experts offer a thorough analysis of the “new rules”-based principle of the country’s territorial division into territorial communities, districts and regions. They point out a potential danger in the institution of the prefects, who are in theory expected to monitor the constitutionality of local self-government bodies once the reform is completed, but might in reality become tools for leveraging the President’s influence at the local level and for presidential control of regional political processes. The prefects directly report to the president and are accountable to the cabinet of ministers, leaving the parliament completely out of the picture. In addition to description of the new principles of the administrative and territorial divisions, the authors offer examples of what they believe are necessary additions. Some of their most important suggestions are as follows:

• a carbon copy of Poland’s self-government arrangements, up to the use of the term “powiat” instead of “district”;
• limiting the president’s influence over the prefects by dividing them into the district and regional prefects while giving more appointment powers to the cabinet of ministers;
• formation of new districts (powiats) by the Verkhovna Rada of Ukraine after the establishment of a majority of the territorial communities.

The Ukrainian experts’ assessment of key threats presented by the bill on the judiciary, drafted by the ad-hoc Constitutional Commission, is worth noting. The experts drew attention to the following problematic aspects:

• if the president is authorized to appoint judges, there is a chance of Ukrainian courts becoming dependent on the presidential administration and the judiciary branch getting excessively “politicized”;
• a possibility of keeping a four-level courts system and an excessively “dispersed” system of judiciary bodies, which goes against the recommendations of the Venice Commission regarding the establishment of a single consolidated and powerful institution;
• keeping the “political” mechanism for appointing the prosecutor general by a decision of the president with approval by the parliament, instead of a more transparent procedure of a contested election by the Supreme Judicial Council.

The report’s authors thus offer a quite thorough description of the structure of Ukraine’s constitutional process, identify the criteria for assessing potential transformations, present their own vision for the technical particularities of mechanisms for future changes, stress the need for engaging Ukraine’s civil society into the development of quality reformist ideas, and arrive at a conclusion about the need for a logical completion of the events of 2014 with the establishment of a new constitutional model for the arrangement of the social and political arena in line with best European practices.

At the same time, it should be noted that the study mostly concentrates on the theoretical aspect of the constitutional reform without shifting the focus onto important features of the Ukrainian social and political process, as well as numerous challenges, issues and contradictions of real-life political circumstances stemming from internal competition among the leading political forces, the escalation of the Donbas stand-off and the country’s involvement in the current geopolitical confrontation. In order to offer a full-fledged analysis of Ukraine’s constitutional process, project further scenarios of how the situation will develop, and get an understanding of the degree of practical implementation of the contemplated changes, the above factors must be taken into account.

Decentralization of power

Constitutional reform process in Ukraine
Report "Updating the Constitution as
the Completion of the Revolution"

Despite the importance of reform of the country’s administrative and political arrangements and the unprecedented popularity of the idea of adapting the best practices from local self-government organization, implementation of Draft Bill 2217а on introducing amendments to the Constitution of Ukraine (regarding decentralization of power), initiated by the country’s president, has been increasingly bogged down in the whirlpool of Ukrainian politics. The reasons for that may be as follows:

1. Lack of total political consolidation.

The preliminary approval of the draft bill in the first reading by the country’s government was accompanied by a terrorist attack near the Verkhovna Rada building on August 31, 2015. The parliamentary debates and public demonstrations were triggered by paragraph 18 of the Constitution’s transitional provisions that establish special conditions for local self-government in certain districts of the Donetsk and Luhansk regions. The head of state inserted this provision into the text of the draft bill to comply with paragraph 11 of the Minsk Accords calling for the institution by the end of 2015 of a new Constitution envisaging decentralization that would require the approval of special characteristics by representatives of certain districts in the Donetsk and Luhansk regions, as well as for the enactment of a permanent legislation on the special status of certain districts in those regions.

O. Lyashko’s Radical Party, Svoboda, UKROP and a number of independent MPs viewed the bill as a threat to the country’s national integrity and, having armed themselves with supporters from the Ukrainian public, organized mass demonstrations. The conflict at the parliament’s gates laid bare the political divisions between the proponents of presidential power and representatives of the nationalist wing of Ukrainian politics that continue to block further implementation of constitutional amendments preliminarily approved by Ukraine’s government. After that memorable grenade explosion near the Verkhovna Rada building, the radicalism of domestic political confrontations has eased somewhat without substantially reducing the intensity of the political standoff that has developed a bureaucratic dimension.

The parliamentary forces came up with different approaches to the draft bill-mandated institution of the prefects. For instance, the Samopomosch political force views the mechanisms for appointment of the prefects and their accountability to the country’s central bodies of power as a possibility for the president to control the exercise of power at the local level. Therefore, under the pretext that the threat of the head of state seeking to expand his political influence, even amid decentralization, needs to be eliminated, the parliamentary political forces could create an additional obstacle to final approval of the constitutional amendments.

The absence of a single vision for political consensus regarding a comprehensive decentralization program is reflected in certain disproportionalities in the implementation of this important project. Successful yet piece-meal steps have so far been taken at the legislative level (the passing of the laws “On Cooperation between Territorial Communities”, “On Introducing Changes to the Budget Code Regarding the Reform of Intra-Budget Relations”, “On Introducing Changes to the Tax Code of Ukraine and Certain Regulations Regarding the Tax Reform”), which has established new functional units – the territorial communities – in Ukrainian territory, helped increase the funding available to local authorities by more than 40% and facilitated the allocation of 1 billion hryvnias from the 2016 State Budget in subventions to newly created communities.

For a full-fledged launch of decentralization and the completion of administrative and territorial reform, the proposed constitutional amendments must be enacted, which remains an extremely difficult task at the moment given the lack of political consolidation. Although the appointment of V. Groisman as Prime Minister has created a favorable situation for P. Poroshenko in the executive branch, the parliament remains an arena where a lot of interests clash. With that in mind, the admittedly good plan for introducing amendments to the Constitution and the establishment of a new political power organization could face further delays with practical implementation and lead to more political conflicts.

2. “The link between decentralization and the Minsk process”.

Not only did the above-mentioned terrorist attack near the Verkhovna Rada become an embodiment of ideological contradictions over the decentralization process, but it also showed how difficult it would be to carry on with administrative and political reform amid the uncertainty surrounding the future of Ukraine’s eastern regions. During the initial parliamentary vote in August 2015, the president managed to push a provision setting up “self-government game rules” in certain districts of the Donetsk and Luhansk regions into the bill’s main language, yet the bill might fall short of the required supporters in parliament for successful voting down the road. The problem of the eastern regions promises to become a substantial obstacle to the administrative and political reform. What are the circumstances that determine today’s state of affairs regarding this issue?

First of all, in addition domestic political tensions, the situation is exacerbated by the stance of the leaders of the self-proclaimed republics in the Donetsk and Luhansk regions who are reluctant to cooperate with the Ukrainian authorities on a political settlement of the conflict. They even saw the Bill 2217а as an imitation by the Ukrainian government of the Minsk process implementation activity.

Secondly, the uncertainty surrounding the “special status” of the eastern regions continues. The resolution, “On Designation of Certain Districts, Cities, Settlements and Villages in the Donetsk and Luhansk Regions for Which a Special Procedure for Local Self-Government is Established,” which supplemented the law “On Special Procedure for Local Self-Government in Certain Districts of the Donetsk and Luhansk Regions” signed back in September 2014 has also failed to find an expected understanding on the part of the leaders of the non-recognized republics. Besides, the Ukrainian decentralization project avoids the use of the terms “autonomy” or “Donbas”, which are among those leaders’ favorites. Even if the conflicts are successfully resolved, those regions would return into Ukraine’s administrative and political fold not as the Donetsk and Luhansk People’s Republics but as individual districts, i.e. territorial units. Consequently, the Ukrainian government is trying to achieve decentralization where the interested Russian side would like to see federalization. In Ukraine’s political usage, those two terms have different meanings and have been provoking rather unproductive debates both at the domestic Ukrainian level and on the international negotiation tracks, something that is bound to obstruct the implementation of the sought-after reform.

Thirdly, the decentralization reform remains hostage to the endless saga of implementation of the Minsk Accords. The controversial issues of local elections in the regions, reestablishment of full Ukrainian control of the international border, and determination of status and functional powers of the problem regions are having a destructive effect on the constitutional process in the country, slowing the administrative and political reform.

Carnegie Europe expert Gwendolyn Sasse has proposed an interesting approach in this context. As part of her research into the process of reform transformations in Ukraine, she insists that the constitutional process should be separated from implementation of the Minsk Accords. In her article “Constitution Making in Ukraine: Refocusing the Debate”, she argued that if the Minsk process is to be freed of its link to the broader constitutional reform process in Ukraine, the EU will also have to offer Russia a concrete perspective to lift the sanctions. Thus not only did Gwendolyn Sasse point out the involvement of foreign actors in Ukrainian politics, but she also reiterated the idea that the situation in Donbas substantially complicates the decentralization reform.

3. “Perception of the reform by regional elites”

As of today, the delays with the decentralization process are accompanied by a certain complication in the perception of those processes by regional elites. As long as there is a lack of agreement as to the perception of the essence of decentralization and the mechanisms for its practical implementation, the uncertainty will persist in relations between the central and local authorities. If the reform envisages a culling of local self-government bodies and a subsequent sharing of funding between the communities and the center, an issue of regional and district councils’ powers will arise, in addition to a reluctance of some local officials to lose their standing. Also, a very important aspect of efficient decentralization (at the legislative level, the movement has taken the right direction) involves the correct redistribution of money, which will help local communities exercise powers delegated to them. Given many Ukrainian cities’ propensity to run budget deficits, to make them financially responsible for infrastructure upgrades or for the funding of local schools and hospitals could become an unbearable burden.

Judicial reform

REUTERS/Gleb Garanich
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June 2, 2016 marked an important milestone in Ukrainian President P. Poroshenko’s term, as it was on that day that the government was supposed to enact the constitutional amendments concerning the judiciary. Ukrainian political back-room maneuvering intensified as votes needed to be secured to pass the proposed draft. Critics even claimed that those events were linked to the MP Sergey Leschenko’s publication of a list of slush fund spending by the deposed Party of the Regions. They claimed it was an attempt to “force” Opposition Block MPs to vote in exchange for minimizing the potential effect and litigation related to the previous government’s corruption practices. Yet those rumors were never confirmed, while the amendments to the Constitution were successfully passed.

It’s important to note that full-fledged implementation of the reform consist of three stages: constitutional transformations as such, bringing the legal and regulatory framework into line with the adopted constitutional changes, and enforcement of the approved provisions. The main goal of the reform is to take politics out of the judicial system. As usual, a debate flared up in the Ukrainian media about the feasibility of separating the judicial and political processes from the potential snags obstructing the reform program. Innovative solutions involving the establishment of a new institution– the Supreme Judicial Council – and stripping the president of the right to appoint courts suggest a qualitative modernization of the judicial system. Critics have noted that the planned measures must be implemented over extended periods of time, with the deadline for the former measure set for April 30, 2019 and for the latter one for December 31, 2017. They believe that during the period intended for full-fledged implementation of the reform, the president will retain enough leverage to create the necessary conditions for a painless transition to the new game rules. It’s worth noting that the article stripping the president of the right to appoint courts will come into effect following the enactment of the above-mentioned administrative and territorial arrangements; given the multitude of problems facing decentralization, there is good reason for concern for the fate of the judicial reform that is contingent upon it.

Besides, a full-fledged rollout of the reform requires the enactment of new laws on the Supreme Judicial Council and of laws on legal counsels, prosecutors and the Constitutional Court, as well as amendments to the various codes of procedure. That’s why the implementation process of planned changes promises to be long and intense. If it is successfully brought to completion, however, Ukraine could enjoy qualitative changes to its judicial system.

Separation of political powers

The issues in selecting the most appropriate model for political power organization, in efficient operation of the checks and balances mechanism, and in the search for a balance between the executive and legislative branches have all remained urgent throughout the entire formation of Ukrainian statehood. Those matters are just as important today, as new constitutional arrangements are emerging. Some experts don’t rule out a scenario where external partners would try and convince the president of the need to steer the country’s reform in the direction of a parliamentary republic, which would guarantee decentralization of political power and continued pluralism of the Ukrainian political process (citing Moldova as an example). Yet questions remain over whether political will or sufficient political resources exist to accomplish such transformations. The problems of transformation of the state governance model will therefore remain the subject of extensive debates, with slim chances of being implemented any time soon.

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In conclusion, it should be noted that the complicated process of constitutional reform requires not only a rational theoretical understanding and the development of promising modernization programs, but also consideration of the country’s social and political realities, which are highly dynamic.

Without a doubt, as we analyze the mechanisms for accomplishing successful transformations proposed in the Updating the Constitution as the Completion of the Revolution report, we should take into account the practical aspect of Ukrainian politics. Ukraine stands at the threshold of important changes, where the achievement of its desired goals and the country’s emergence from a systemic crisis require fast and well thought-out decision-making. If the political establishment succeeds in launching the reform process, the country will make yet another step towards international self-determination and economic prosperity; otherwise, there’s a threat of further deterioration of the situation with unpredictable consequences. Whereas in the past, the severity of Ukrainian laws was compensated by the optionality of their enforcement, today’s government has been given a brilliant opportunity to reverse the trend. Not missing this chance is crucial.