• Decentralization Delayed but Not Yet Denied: With just a week before the current Parliamentary session ends, supporters of decentralization are still short of the 300 votes they need to pass the sweeping Constitutional changes. The long awaited decentralization legislation would transfer powers from the Office of the President and Cabinet of Ministers to local governments. It would also give local governments more budget powers and control of their community priorities. However since the changes are contrary to the current Constitution of Ukraine, they require a 2/3 vote of 300 deputies rather than a majority of 226. On August 31st, following violent protests which resulted in the deaths of three persons, Parliament mustered just 265 votes in favor of the decentralization legislation. Under Ukrainian law, only the final vote on an issue requires the full 300 votes with the initial requiring only a majority of 226. However Ukrainian law also requires that Constitutional changes be passed in two different sessions of Parliament. Specifically the Constitution requires that it be passed in the “next session” of Parliament.Sessions of Parliament in Ukraine are somewhat different than “sessions” of the United States Congress. US Congressional “Sessions” are essentially a year each, starting in early January and ending in late December of the same year. However Ukrainian Parliamentary sessions are more arbitrary. For example, the Parliament elected in October 2014 took office in November 2014 which started the first session of the current Parliament. That “session” was brief and in February 2015, the second session of the Ukrainian Parliament began, which lasted until the end of August 2015 (when the first decentralization vote was passed). The next day in September 2015, Parliament started its third and current session. The 2007-2012 Convocation of the Ukrainian Parliament (also known as the 6th Convocation of Parliament) held a record 11 sessions during its full five year term. The first four convocations (1991-1994, 1994-1998, 1998-2002, and 2002-2006) of the Ukrainian Parliament each held nine sessions each during the terms. More recent convocations have held as few as four (2006-2007) though with the average “session” typically lasting about six months. Why are the terms of “sessions” important with regard to decentralization? First, if Parliament fails to get 300 votes this month in favor of decentralization, the legislation can only be re-introduced after one year (Article 158 of the Ukrainian Constitution). That means that failure to pass the bill next week would postpone re-introduction of the legislation until late January 2017. Then in accordance with Ukrainian law, the legislation would have to pass in that “session” of Parliament with a majority and then pass again in the next session with 300 votes. However with talk of new elections already underway at high levels, failure to pass decentralization by this Parliament may doom the effort altogether. The next Parliament is almost certainly not going to share the same pro-Euromaidan composition that the current Parliament enjoys. As a result, radical changes in the structure of government (i.e. decentralization) will be increasingly unlikely. The second reason why understanding “sessions” of Parliament is important to decentralization, is because words have meanings and ultimately the courts interpret those words. As US President Bill Clinton said during the Monica Lewinsky affair, “It depends upon what the meaning of the word ‘is’ is”. Since the government is staring at a potentially embarrassing defeat on decentralization next week, the Poroshenko team has drawn inspiration from President’ Clinton’s quote. Accordingly, several Poroshenko Bloc MP’s have drafted and sent an urgent inquiry to the Constitutional Court of Ukraine to clarify what the definition of “next session” means. Does “next session” mean the next one chronologically, or does “next session” mean simply a future session of the current convocation? In other words, if the vote is delayed until the next session of Parliament beginning February 1st, and lasting approximately until late August, could the decentralization bill be passed sometime during that time frame and still be legal and binding? In English, if one says, “A next session of Parliament” then the meaning is likely to be construed as any future session. However if one says, “THE next session of Parliament”, then the meaning would likely be interpreted as: the session immediately following the current one. Since Ukrainian language doesn’t use articles like “a, an, the”, the interpretation of “next session” by the Constitutional Court has room for flexibility. In fact, that is exactly what the Poroshenko team is banking on. As this blog has pointed out multiple times, most court cases in Ukraine are decided by two factors –and neither factor involves impartiality and/or justice. First, which side (plaintiff or defendant) does the presiding judge fear more? Second, which side (plaintiff or defendant) is willing to pay/bribe the presiding judge the larger sum? In the case of decentralization, the Constitutional Court judges have every reason to fear the President (and Parliament to a lesser degree) and presumably, plenty of incentive to find a favorable verdict given the financial resources of the party in power. Thus, the President’s dismissal this week of four judges including the infamous Pecherskiy Rayon Court Judge Rodion Kireyev (who presided over the trial resulting in the “conviction” and subsequent prison sentence for Yuliya Tymoshenko) takes on additional significance. In addition to the radioactive Kireyev, two of the other dismissed judges were involved in cases which punished Euromaidan activists. While Poroshenko’s dismissal of the judges (who clearly needed to be fired and possibly imprisoned themselves) was recommended by the High Council of Justice, the sudden timing sends a clear message to wavering Constitutional Court Justices on the decentralization law. That message is that the President does not intend to fail on decentralization, and will use all available powers to ensure its success. Having made examples out of four expendable judges, and with the confidence that none of the Constitutional Court Judges want anyone digging too deep into their backgrounds, previous court rulings and financial affairs, the Presidential administration can take the “carrot” approach to receiving a favorable ruling on delaying the decentralization vote.
Decentralization and local control of power is a positive and something Ukraine has needed to do since the end of the Soviet Union. In addition, given that a devolution of powers to allow some local decision making is also required under the Minsk Agreements (emphasis on decentralization though, and NOT federalization), Ukraine and Poroshenko need passage of the decentralization legislation. The concept of decentralization also enjoys public support according to the latest survey by the International Republican Institute (IRI). When asked if they trust their newly elected authorities with additional responsibilities as a result of decentralization, the public was in favor by a 47-29% margin. The Americans and Europeans have already committed $150 million dollars in technical assistance directly in support of implementation of decentralization. Thus, it is priority for both Ukraine and Ukraine’s international partners. Passage of the “Special Status Law” though, which would give the Donbass more autonomy than every other region of Ukraine though, remains rightly controversial. However this vote would take place separately from the decentralization vote and may or may not pass later this year (at the moment it would fail badly).If the Constitutional Court rules that the definition of “next session” is “A next session” rather than “THE next session”, it will save the Presidential administration from a disastrous defeat on decentralization. Such a ruling would give the President approximately six more months to find the needed decentralization votes. In the end, the need for decentralization of powers in Ukraine, outweighs the adherence to an archaic Constitution that assigned randomly selected timetables to passage of Constitutional changes. On May 7, 1992 the Michigan Legislature became the 38th state to pass the 27th Amendment to the United States Constitution. The 27th Amendment, stipulates essentially that salary raises passed by Members of Congress for themselves, can only take effect after an election has occurred. However this Constitutional Amendment was first introduced by then Representative (and later President) James Madison in September 1792 as part of a package of 12 Amendments which became the Bill of Rights (although one amendment on congressional apportionment has still failed to be passed). This “common sense” Constitutional Amendment took 202 years to become the law of the land. Had America been saddled with a strict “the next session” time limitation on passage of this amendment, it would have never become law. Therefore, we will await the response by the Constitutional Court to the deputies’ inquiry on the definition of “next session”. A favorable ruling for the President will still require him to find another 35 votes in favor of decentralization, but at he will at least have time to persuade them. As we know from the American example though, sometimes having adequate time, is all that is needed to prevail.
Finally, in a late breaking story on Friday, Samopomich faction Head Oleg Berezyuk announced that his party would withdraw their minister from the coalition government. The faction leader cited corruption in Yatsenyuk’s government and complained that as a junior coalition partner that they aren’t listened to enough (a classic junior coalition partner complaint in every coalition in every country). Presumably that means that Agriculture Minister Oleksiy Pavlenko will either try to resign or quit attending Cabinet meetings. As Health Minister Aleksandr Kvitashvili learned though after attempting to resign four times, Parliament has the final say. Despite the withdraw of the minister, Samopomich stated that they would remain a part of the parliamentary coalition at least for now. However they added that they will definitely vote against decentralization. While Samopomich has stated its official reasons for this move, the timing in conjunction with the pending inquiry to the Constitutional Court, as well as their specific mention of opposition to decentralization suggests that the move may have far more to do with decentralization, and less to do with complaints coming from a junior coalition partner.
Dates to Watch (for Ukraine unless otherwise noted):
January 26-29: Parliament in Session: The current Parliamentary session ends on Friday, January 29.
January 27: Next Meeting of the Trilateral Contact Group in Minsk
February: Stockholm Arbitration Hearings on Counter Claims between Naftogaz and Gazprom.
April 20: Tentative Donbass Local Elections in the Occupied Territories
June 23: New EU Expiration Date for Crimea related Sanctions on Russia
June 2016: Stockholm Arbitration Courts Expected to Render a Decision on the Case Between Naftogaz and Gazprom.
July 31: New Date for Expiration of the EU’s Donbass related Sanctions on Russia