Attempts to amend Ukraine’s Constitution and expand the rights of the Donbas could help to resolve the nation’s standoff with Russia over the separatist territories of Eastern Ukraine.
Ukrainian President Petro Poroshenko gestures as he speaks to lawmakers during a parliament session in Kiev, Ukraine, Thursday, July 16, 2015. Ukraine’s parliament, on Thursday sent to the Constitutional Court draft amendments to the country’s Constitution concerning decentralization. Photo: AP
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Last week President Petro Poroshenko of Ukraine proposed the introduction of a set of far-reaching amendments to the Constitution that had already been validated by the Ukrainian parliament and submitted for consideration by the Constitutional Court. If approved and then passed by a constitutional majority at the next vote, the amendments would give Ukraine a revised constitution – a fact that may affect its relations with Russia and the self-proclaimed people’s republics of Donetsk and Luhansk (DPR and LPR).
The amendments not only propose decentralization, but also introduce a legislative norm on “special order of local governance” of these Donbas regions. After all, today they are no longer under the control of the Ukrainian authorities as a result of the continuing armed conflict.
The Ukrainian authorities have repeatedly stated that the amendment of the Constitution is dictated primarily by the need for decentralization reforms.
However, these reforms should apply to the whole of Ukraine. The presence of a “separate” legal clause (on local governance in the Donetsk and Luhansk regions) indicates that certain areas in the east of Ukraine are being offered a slightly different status, which assumes a greater amount of authority than under the powers granted by decentralization.
Moreover, it should be understood that this “separate” provision in the Constitution is essentially a window through which any amendments can be made to the law—in relation to both the empowerment and the future status of these territories.
The term “special order of local governance” is very often confused with the term “special status.” In fact, the concepts are entirely different. Whereas “special status” provides for autonomy, “special order of local governance” refers only to the functioning of local government bodies and the extension of their powers to address issues related to local development in the areas of education, culture, etc.
However, an analysis of the law on the special order of local governance reveals that certain provisions run counter to the norms of decentralization and significantly expand the powers of local government in respect to setting up public prosecutor’s offices and people’s militias. Thus, the level of intervention by central agencies is greatly reduced, thereby extending the scope of authority of local government, which is due to be elected in off-year elections in October 2017, after which the law will enter into force.
Furthermore, there are marked contradictions between the law and the amendments to the Constitution proposed by Poroshenko regarding the powers to be granted to local MPs elected during these elections.
According to the amendments, should a local council pass an act that threatens the integrity of Ukraine and contradicts the Constitution, the president has the right to suspend its powers and appoint a state commissioner.
However, Article 5 of the law stipulates that the powers of MPs elected in the separate territories of the Donbas in 2017 cannot be terminated prematurely.
A consequence of such lawmaking is that MPs there will be hard to control, especially given the fact that local councils in these areas can be elected by citizens sympathetic to Russia. It creates yet another loophole for potential violation of the Constitution.
In addition, the separate territories of the Donbas will get further dispensation in comparison with other regions of Ukraine, namely “protected” items in the budget. A state target program has been developed under which Ukraine guarantees to support these territories’ economic and social development through subsidies from the state budget. This means that Ukraine is committed to financing these territories at the expense of other regions, even though every new amendment to the law has the capacity to further reduce central control.
The adoption of amendments to the Constitution provoked an extremely skeptical response from various Ukrainian experts, who say that it will only further split Ukrainian society, which even now is not united on the issue of the conflict in the Donbas.
The fact that under the adopted amendments and the law more powers are granted to the separate territories of the Donbas than other regions of Ukraine, clearly plays into the hands of the separatists and Russia.
Russia is particularly interested in the fact that the separate regions of the Donbas have greater autonomy with continued financing from Kiev. After all, the elections slated there for 2017 could lead to local councils made up of former separatists and pro-Russian politicians, who even without today’s conflict in the Donbas would be numerous enough.
And given the fact that the president will not be able to suspend the powers of any local councils set up by these interest groups, Ukraine has clearly done a great service to Moscow: it has in effect limited its own sovereignty in the east, stripping bare the boundary with Russia.
It is vital to understand that all further conflicts of interests and powers between the center and the region could culminate in the “haggling” of new powers for the Donbas, which will be enshrined in the form of amendments to the law dated September 16, and the impending approach of autonomy—that selfsame “special status” now on everyone’s lips.
This was confirmed by a statement made by the head of the State Duma Committee for Foreign Affairs, Alexei Pushkov. He described Poroshenko’s amendments as contrary to the Minsk agreements, which means that in future Moscow will try to put pressure on Kiev with the demand to consolidate nothing less than the special status of these territories.
But neither should it be ruled out that the next vote for the amendments (which require the backing of more than 300 MPs to pass) could significantly complicate the process of implementing them, in effect granting Ukraine more time while leaving the issue of the status of the separatist territories of the Donbas unresolved.
For their part, U.S. officials consider the adoption of this law as an important step towards resolving the conflict; since Ukraine has proposed a major change to its Constitution, the next move is expected to come from Russia and the separatists. Europe and the United States are extremely keen for the Ukrainian parliament to adopt the amendments proposed by the president, as evidenced by the presence of foreign dignitaries in the parliament chamber during the vote on July 16.
It is clear that after the imposition of sanctions against Russia, Europe fears a worsening of the confrontation with Moscow, for which reason it is seeking to settle the matter by all possible diplomatic means. Amending the Constitution of Ukraine is seen as one of the most favorable options, able to pacify the Kremlin and divert attention from the Ukraine-Russia conflict, at least for the time being. That the amendments pave the way for the future violation of Ukraine’s sovereignty is a problem mainly for Kiev, not the United States and Europe.
As such, the bill to amend the Constitution, voted for by 288 MPs of Ukraine, is an attempt to freeze the conflict in the Donbas at the expense of national sovereignty.
The law on local governance will take effect only after the elections in Donbas, but the run-up could see the alignment of forces in the east of the country change significantly, and not in Ukraine’s favor. Hence, it remains an open question as to who will receive the right to participate in the 2017 elections, a process that the Kremlin will try as best it can to influence, while seeking at the same time to extend the autonomy of territories beyond the control of Kiev.
The main problem today is that the United States and Russia do not see eye to eye on Ukraine’s implementation of the Minsk agreements. Whereas the United States openly advocates the amendments proposed by Poroshenko as the only possible diplomatic solution to the conflict, Russia, accompanied by the DPR and LPR, will push solely for greater autonomy, thereby exerting pressure on the adoption of the amendments to the law on the special order of local governance.
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.