Venice Commission President: "Decentralization is one of the most important reforms required in Ukraine"
An exclusive interview with President of the Venice Commission of the Council of Europe Gianni Buquicchio
Q: How does the Venice Commission evaluate the draft amendments to the Constitution of Ukraine? Are your recommendations were taken into account?
A: We are very pleased with the draft as it stands now. Basically all recommendations of the Venice Commission were taken into account. I’d like to thank the Constitutional Commission and especially its chair, Speaker Groysman, for the excellent co-operation. I also welcome that President Poroshenko quickly submitted the text to the Verkhovna Rada for adoption. This is a good start of the constitutional reform and I hope that progress on other chapters will follow. Decentralization is one of the most important reforms required in Ukraine and the draft provides a good basis for this reform.
Q: How dos the Venice Commission evaluate this draft in the light of the division of powers between the President, the Cabinet of Ministers and Parliament? How do you assess the president's right to dissolve local councils and to appoint and dismiss the prefects?
A: The draft largely maintains the current balance of powers between the President, the Cabinet of Ministers and Parliament. This is probably the only realistic approach in current circumstances. In the medium and long term, we would favor a strengthening of the powers of the Cabinet of Ministers, which is accountable to the Parliament. However, the current crisis situation is not the best moment for this change.
The right of the President to suspend – not terminate – the powers of bodies of local self-government, if these bodies approve acts which are not in compliance with the Constitution of Ukraine and threaten the sovereignty, territorial integrity or national security of the country, is a reaction to what recently happened in Ukraine. It is legitimate to give this task to the President, who under the Constitution is the guarantor of state sovereignty and the territorial indivisibility of Ukraine. The requirement that there has to be a "threat to sovereignty of the state, territorial integrity or other threat to national security" establishes a high threshold and in such cases, suspension and, following the decision of the Constitutional Court, dissolution of the body is a proportional sanction. In our opinion we insisted that, pending the decision by the Court, the act should only be suspended and not terminated, and that the Court should be under an obligation to act quickly. Both recommendations are reflected in the draft.
As regards the prefects, the President may not appoint or dismiss them acting alone but only upon recommendation by the Cabinet of Ministers. This reflects the recommendation in our opinion and corresponds to the current constitutional rule. We were indeed not in favor of giving to the President the power to dismiss the prefects on his own initiative.
Q: The draft amendments contained the transitional provisions on the special order of local government in some areas of Donetsk and Luhansk regions, and this issue was the subject of many discussions in Ukrainian society. Was it possible to do without it changing? Was it possible to avoid these provisions?
A: To a large extent the discussion in Ukraine seems to me to be based on a misunderstanding. The Constitution will not regulate the status of certain areas in Donetsk and Luhansk regions but will only give the possibility for the law to establish such a regulation. This seems logical and necessary. If, at some point in the future, an agreement can be reached on the settlement of the dispute, there will be no need for constitutional changes but the settlement can be implemented through ordinary legislation. Obviously, any such law will have to respect basic constitutional principles such as the sovereignty and territorial integrity of Ukraine. Since the clause is limited to areas of those two regions, no other area of Ukraine will be able to rely on this clause to claim special rights.
At the international level it is very important for Ukraine that such a provision is included in the text. The provision shows the readiness of Ukraine to implement the Minsk agreements. Everybody knows that the International Community is attached to the implementation of these agreements and it is important to show that Ukraine is ready to implement them.
Q: When do you think these amendments would enter into force? When should they be adopted?
A: You are certainly aware that the procedure for adopting constitutional amendments is complex. In our opinion, the amendments should enter into force before the October local elections. This means that the first reading has to take place during the current session of the Verkhovna Rada, while the second reading should take place in September or at the beginning of October.
Q: What do you expect from these amendments? What effect will they have for Ukraine?
A: First of all the amendments provide a good basis for the decentralization of the country. Democracy cannot be limited to the national level but has to start at the grass roots. People need to have the possibility to decide on issues of local relevance at the local level, in accordance with the principle of subsidiarity and without needing authorization from Kyiv for everything. If people have the feeling that their views are heard at the local level, this should strengthen the unity of the country.
We should, however, be conscious that the constitutional amendments are only a first step. Most of the work still has to be done. Many laws will have to be adopted or amended and the new rules will have to be implemented in practice. This will take some time but it is important that this reform process is now launched.