Ukraine's Constitutional Court on July 31 approved constitutional changes that give more power and functions to regional and local governments and grant powers of self-governance to separatist-held areas of Ukraine.
Parliament must pass the measures before President Petro Poroshenko signs them into force.
Issuing the ruling, Constitutional Court judge Vasyl Bryntsev noted that the decision of the court had not been unanimous. He said that several different judicial opinions had been attached to the court’s ruling on approving the changes made to the constitution.
Poroshenko called the decision of the court a landmark ruling.
“This is an important step that advances momentous changes,” Poroshenko wrote on his Facebook page. “For the first time in Ukraine’s history, the government and president of the state have delegated some of their powers to territorial communities. The reforms will transfer some power to the people … and will make Ukraine strong and firm.”
Apart from granting more powers to local authorities, the constitutional amendments envisage that “the particularities of self-governance in certain regions of Donetsk and Luhansk oblasts will be determined by a separate law.”
The amendments are intended to fulfill some of Ukraine’s key obligations toward implementing the Minsk II peace agreement, which was brokered in February. The inclusion of the provision on self-governance for the occupied territories was strongly lobbied for by U.S. Assistant Secretary of State Victoria Nuland during her visit to Ukraine on July 16-17.
Nuland admitted applying some pressure: Asked if the United States was pushing Ukraine towards approving a special status for the Donbas, she said the measure was aimed at ending Russia’s criticism of Ukraine for failing to honor parts of the Minsk agreement.
“Did we want to see Ukraine fulfill obligations by including that sentence on to do list? Sure. But the main reason we wanted to see it happen was that there will be now no excuses for the other side for (engaging in) renewed violence, and manipulating facts,” said Nuland.
The measures will eliminate the posts of regional governors, who were previously appointed by the president. Their powers will be transferred to district and city executive committees formed by local councils.
To balance that, the president is by March 1, 2018 to appoint regional prefects nominated by the government, who will make sure the local authorities don’t overstep their new powers.
To synchronize the implementation of the law on local elections, which was adopted on July 14, and the now-approved decentralization amendments, local elections will be held in October 2017, ending the powers of the local authorities who will be elected in October 2015.
The Constitutional Court said it had not found any evidence of the unconstitutionality of the amendments. Neither of the proposed amendments limit the scope of Ukrainians’ constitutional rights and freedoms, nor impinge on the independence or territorial integrity of Ukraine, said justice Bryntsev.
Legal expert Mykola Kozubra, a former judge of the Constitutional Court of Ukraine, told the Kyiv Post that the judicial opinions attached to the court’s ruling concerned the separate law that will be added later concerning the governance of Donetsk and Luhansk oblast.
He added that there had been a heated debate among the court judges over the issue of extending the president’s powers to appoint prefects and suspend the operation of local authorities if they go beyond their powers.
Kozubra said none of these powers were excessive. The president will not be able to appoint prefects at his own discretion – the appointment will have to be supported by the government.
Similarly, the suspension of the powers of local authorities has to be subsequently approved by the courts, said Stanislav Shevchuk, a judge of the Ukraine’s Constitutional Court.
Shevchuk said he had not drawn up a separate judicial opinion, while noting that many of the judges had. Some of the judicial opinions touched on the issue of Russia’s de-facto war on Ukraine, he said.
“The determination of the peculiarities of self-governance in the law is the only provision that poses a threat to the independence and territorial integrity of Ukraine,” Kozubra said. “It goes way beyond the limits of local governance.”
However, due to the temporary nature of the provision, evidenced by the fact that it will be included in the transitional provisions of the Constitution, rather than in the body of the text itself, there is nothing to fear, Shevchuk said.
“If the constitutional amendments are adopted by parliament, members of parliament and the Constitutional Court will be obligated to make sure any law on self-governance in Donetsk and Luhansk oblasts is in line with the Constitution,” added Shevchuk.
The heads of the Samopomich Party and Radical Party parliamentary factions, members of the governing coalition that opposed the changes, said the court ruling had been totally predictable. They promised to scrupulously analyze the decision of the court and decide on a future plan of action.
Radical Party leader Oleh Lyashko said that he thought that the decision of the court had been made under pressure. According to Lyashko, six judges of the Constitutional Court are potential suspects in a case on the usurpation of power by Ukraine’s ex-president Viktor Yanukovych, who fled the country together with his allies in late February 2014.
“A Constitutional Court like this does not have the right to exist and has to be liquidated. All members of parliament who will vote for these pro-Putin amendments of the Constitution are traitors of Ukraine,” Lyashko wrote on his Facebook page after the court issued its ruling.
Despite Samopomich and Lyashko’s opposition to the amendments, Parliament Speaker Volodymyr Groysman has said he hopes they will come before parliament for voting in September when legislators return from summer break.
To launch decentralization, parliament has to muster a constitutional majority of 300 votes in favor of the amendments at the next parliamentary session, which starts on Sep. 1.
Kyiv Post’s legal affairs reporter Mariana Antonovych can be reached at [email protected]
Kyiv Post staff writer Veronika Melkozerova can be reached at [email protected].
