Opinion on the Draft Law Amending the Constitution of Ukraine Submitted by Oksana Syroyid

Opinion on the draft law amending the constitution of the Ukraine submitted by Oksana Syroyid, deputy speaker of the Verkhovna Rada of Ukraine, member of the constitutional commission.

І. Introduction

1. The Coalition Agreement, entered in by five factions of the Coalition including the “Petro Poroshenko Bloc”, provided that for the purpose of development of amendments to the Constitution the Parliament will establish Temporary special commission.
2. On March the 3rd, 2015 President Poroshenko established the Constitutional Commission for the purposes of development of the amendments to the Constitution of Ukraine.The President appointed the Speaker of the Parliament Mr. Groysman to the post of the Head of the Constitutional Commission (hereinafter the Commission). The President Administration selected the candidates to the Commission and no criteria of such selection were available to public.
3. The Commission worked within three groups including the one on decentralization. This working group held only 3 meetings. At some point the group did not hold meetings  for a month.
4. At the first meeting of the working group on decentralization members of the Commission were asked to submit their proposals. However, later the Commission members were not engaged in developing of the text of the amendment themselves. The text was written by the Commission’s Secretariat who was not authorized for such actions and the  members of the Commission did not know of whom the Secretariat consisted.
5. While the Commission members worked on the first version of draft amendments (hereinafter – draft amendments –1), the Head of the Commission announced the summation of draft amendments to the Venice Commission. The Commission itself didn’t make any decision to submit draft amendments to the Venice Commission.
6. From the web-site of the Venice Commission the members of the Commission found out that draft amendments submitted to the Venice Commission (draft amendments – 2) differed from those they worked on (draft amendments – 1).
7. On June 26, 2015 after receiving the preliminary opinion of the Venice Commission the working group on decentralization of the Commission had its last meeting. At this meeting another draft amendments appeared (draft amendments – 3), which were different from draft amendments – 2 and draft amendments – 1.
8. The last meeting of the working group where the draft amendments – 3 were introduced lasted only for one hour . After a short discussion, the Commission by the majority of votes approved draft amendments – 3. However two members of the Commission did not support draft amendments – 3. It shall be noted that some experts much criticized the approved amendments despite they voted for them.
9. On June 30, 2015 together with the members of “Samopomich” faction Isent a letter to the President of Ukraine with suggestions and remarks to the draft amendments – 3. Those were not taken into consideration.
10. On July 1, 2015 the President of Ukraine submitted to the Parliament the Draft law on amendments to the Constitution of Ukraine (draft amendments – 4), which was different from draft amendments – 3. In particular, transitional provisions postponed decentralization for 2 years. At the same time, provisions which will give additional powers to the President shall enter into force immediately.
11. On July, 9, 2015 the Parliamentary Committee on Legal Policy and Justice gave an opinion on draft amendments – 4.
12. On July 15, 2015 the President of Ukraine submitted to the Parliament of Ukraine a revised Draft law on amendments to the Constitution of Ukraine (amendments – 5). The difference between draft amendments – 4 and draft amendments – 5 was in provision on “special order of local self-governance in certain districts of Donetsk and Luhansk regions”. This provision was transferred from transitional provisions of the Draft Law on amendments to the Constitution (draft amendments – 4) to the transitional provisions of the Constitution in draft amendments – 5 (the “text” of the Constitution).
13. At the same day, on July 15, 2015 the Parliamentary Committee on Legal Policy and Justice gave an opinion on draft amendments –5. Moreover, despite the fact that draft  amendments – 4 and draft amendments – 5 had a significant difference the Committee on Legal Policy and Justice c anged only the date in its opinion.
14. On July 16, 2015 not with standing the Coalition Agreement (according to which the Temporary special commission should have been established), and the Parliamentary Rules of Procedure (according to which the 14 – days term for submission of an alternative draft law has just started) the Draft Law on amendments to the Constitution of Ukraine (draft amendments – 5) was voted to be added on the agenda and submitted to the Constitutional Court of Ukraine.
15. The voting for the draft amendments – took place with procedural violations. In particular, the MP who was appointed to a position in executive body voted for the draft amendments – 5, despite the fact that he had no more right to vote as an MP. At the same time, the draft law was not properly discussed according to the Rules of procedure.

ІІ. Scope of present opinion

16. Present opinion contains an assessment of the Draft Law on Amendments to the Constitution (on decentralization) submitted by the President of Ukraine to the Parliament of Ukraine on July 15, 2015 (draft amendments – 5). This opinion is based on an informal English translation of the draft amendments: certain comments may be due to inaccuracies of the translation.

III. Analysis of the draft amendments

17. I highly welcome the mare idea of decentralization of executive power and establishment of local communities. Such communities should have enough resources and powers to perform their functions. The Draft law under analysis suggests provisions, which, however, endanger capacity of local self-government.

Local self-government: threats to  independence

18. The scope of powers granted to local self-government by Article 143 of draft amendments – 5 is the same as it is in current Article 143 of the Constitution of Ukraine. At the same time, it is declared that subsidiarity principle is being implemented. In my letter, mentioned in par. 10 of current Opinion, I suggested that in view of subsidiarity principle Article 143 might be following: “Territorial community directly or through local self-government authorities according to the law performs powers, which according to the Constitution of Ukraine and laws of Ukraine are not granted to governmental authorities, district and regional council”.
19. The power to suspend decisions of self-government authorities granted to prefects by Article 144 of the draft amendments is considered as a threat to independence of local self-government. Suggested power is not limited by any mechanism protecting local self-government authorities from arbitrary use of such power, especially in view of direct political influence on prefects by means of appointment and dismissal. In such countries as Bulgaria, Croatia, Latvia, Lithuania, Serbia and Slovenia only courts may suspend  decisions of local self-government authorities. In other countries such as Hungary, Poland and Romania government representatives make such submission to the court. However, the final say in cases of suspending of decisions of self-government should be made by court.
20. The power of the President of Ukraine to suspend powers of elected bodies and to appoint temporary state governor according to Article 144 is considered as a threat to independence of local self-government in view of the following:
a) such power is not limited by explicit terms, in particular there is no term in Article 144 within which the President should make a submission to the Parliament of Ukraine after the Constitutional Court of Ukraine has found the decision of elected body unconstitutional. As a result, temporary state governor may function instead of local self-government for and unlimited period;
b) no responsibility for misuse of such power is provided. The only mechanism according to which the President of Ukraine may be held responsible is impeachment procedure.  However, this procedure requires ¾ votes in the Parliament, which makes it ineffective;
c) such power does not correspond with its declared aim. There are other means of fighting terrorism and protecting national security and territorial integrity. In particular, according to par. 20 of Article 106 the President of Ukraine has an obligation to introduce martial law in case of threat of attack, danger to the state independence of Ukraine. As the example of Crimea has shown, dissolution of the Verkhovna Rada of the Autonomous Republic of Crimea made by the Parliament of Ukraine on March 15, 2014 did not help to protect nether national security, nor territorial integrity of Ukraine;
d) in such countries as Bulgaria, Denmark, France, Greece, Latvia and Sweden neither the President, nor other authorities has power to suspend powers of elected bodies and to appoint temporary state governors. Even in such countries where local elected bodies may be dissolved such dissolution is made by the Parliament (Lithuania), by Parliament on submission of the government (Hungary, Poland, Slovenia) or by the government (Croatia, Romania, Serbia). Therefore, the mechanism of appointment of temporary state governors provided in Article 144 differs from existing practice of democratic countries.
21. Draft amendments – 5 suggest excluding from the Constitution of Ukraine the provision according to which the rights of local self-government are protected in court. It contradicts Article 11 of the European Charter of Local Self-Government, according to which “local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation”.
22. Therefore, seeing suggested draft amendments – 5 systematically, it is necessary to mention that local self-government will be put under pressure and will remain unprotected. In such circumstances, local communities will not be able to become independent and capable of performing their functions.

Executive power: disbalance of powers

23. At the regional level draft amendments – 5 establish the position of prefects who are appointed and dismissed by the President upon recommendation of the Cabinet of  Ministers (Article 118). Their functions according to Article 119 are supervision of compliance with the laws and the Constitution by the local self-government authorities, coordination and supervision over local bodies of central executive authorities, administrative functions (enforcement of state programs).
24. While performing governmental functions prefects are accountable to the President and not the Cabinet of Ministers. At the same time the Venice Commission in its previous decisions {1} has stated that supervision over local authorities is a governmental function. This function is needed for an authority that is performing administrative supervision. In countries (where administrative supervision is performed not solely by courts) such as Croatia, Bulgaria, Hungary, Lithuania, Latvia, Poland,  Romania, Serbia, Slovenia this supervision is performed either by the government through its ministries and central executive bodies or the representative, appointed by and accountable to the government.
25. Prefects are granted with administrative functions, in particular enforcement of state programs. Such provision contradicts the mare idea of decentralization whereas the nature of decentralization is to give functions of executive power to the level of local self-government and local bodies of central executive authorities.
26. Prefects perform co-ordination and supervision over local bodies of central executive authorities. Thus, the President indirectly through prefects can influence the government and at the same time bears no responsibility for such influence.
27. Prefects are declared to be public servants, however no guarantees of professional competence and political neutrality are provided in the draft amendments – 5{2}
28. Therefore, seeing suggested draft amendments – 5 systematically, it is necessary to mention that:
a) the government is weakened whereas its policy can not reach the local level due to the President’s influence over prefects;
b) for performance of governmental functions prefects are accountable to the President not the government;
c) the fundamental principle of democracy is undermined in view of the fact that a part of executive branch of power is not accountable to the Parliament, while in a democratic statesuch situation is unacceptable;
d) the role of theParliament in a mixed parliamentary-presidential system is significantly weakened: the Parliament loses its control over the government, due to the fact that at the local level government officials are accountable to the President, but not the Parliament.
Special order of local self-government in certain districts of Donetsk and Luhansk regions: a threat to existence of the Ukrainian state
29. On March the 17th, 2015 the Parliament passed the Resolution “On recognition of certain districts, cities, towns and villages of Donetsk and Luhansk regions as temporary which provided that the territories granted with the special order of local self-government by the abovementioned law were temporarily occupied until all illegal militant groups are withdrawn from the territory of Ukraine and the Ukrainian government takes full control over Ukrainian-Russian border.
30. Introducing provisions on special order of local self-government in certain districts of Donetsk and Luhansk regions in the “text” of the Constitution will give such provisions direct effect and provide that special order of local self-government will be effective in certain districts of Donetsk and Luhansk regionsprior to their liberation by Ukrainian government. Such approach is inconsistent due to the following:
a) Ukrainian government does not control the abovementioned areas and thus can not guarantee any implementation of laws of Ukraine on such territory;
b) Special order of local self-government can be granted on the constitutional level for certain purposes. For example, the Constitution provides special order of local self-government in Kyiv and Sevastopol due to the fact that Kyiv is the capital of Ukraine and Sevastopol is a major navy base. There is no legitimate aim for granting special order of local self-government to certain districts of Donetsk and Luhansk regions. The only reason named by the President is that Ukraine has to follow Minsk Protocol and Minsk package of Measures;
c) On July the 17th, 2015 the Parliament passed a resolution prohibiting local elections on the occupied territory of Ukraine including certain districts of Donetsk and Luhansk regions due to the fact that Ukrainian government cannot perform its functions in this area. Therefore local self-government bodies will not be able to function in certain districts of Donetsk and Luhansk regions until Ukrainian government liberates them and thus there is no physical possibility for constitutional provisions on special order of local self-government to be performed at all.
31. Referring Preliminary Opinion of the Venice Commission as of 24 June 2015 {3}, where the Commission recommended to add a provision it the Constitutionof Ukraine in order to enable “future legal developments in line with the Minsk agreements” I would like to mention the following. The right to amend the Constitution of Ukraine is a sovereign right of Ukrainian nation. Neither other state, nor international organization has a right to decide how the Ukrainian nation should amend its Constitution and what kind of provisions should it add to the Constitution. The question of implementation of political agreements goes far beyond the scope of the competence of the Venice Commission according to its Statute. Moreover, in its previous opinions the Venice Commission demonstrated high respect to sovereignty of a state amending its Constitution. For example, giving its opinion to Hungary the Venice Commissionmentioned: “The Commission never denied the sovereign right of Parliament to adopt the constitution or to amend it, but it criticized the procedure and methods of doing so in Hungary. The Constitution of a country should provide a sense of constitutionalism in society, a sense that it truly is a fundamental document and not simply an incidental political declaration. Hence, both the manner in which it is adopted and the way in which it is implemented must create in the society the conviction that, by its very nature, the constitution is a stable act, not subject to easy change at the whim of the majority of the day” {4}.
Therefore, by analyzing the procedure of development of the abovementioned amendments the Venice Commission would make a great contribution in development of   Ukrainian democracy.

IV.Conclusions

32. Considering the fact that the Venice Commission gave a Preliminary Opinion on Draft law amending the Constitution of Ukraine, I kindly ask the Commission to consider the abovementioned information while giving the final Opinion. Also in view of the fact that the Venice Commission has already given an opinion on draft law   amending the Constitution of Ukraine on parliamentary and judicial immunities and also considering that the draft law amending the Constitution of Ukraine on judiciary soon will be submitted to the Venice Commission I highly appreciate if the Venice Commission gives its opinion viewing all these amendments together.

Notes