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The dark side of Ukraine’s constitutional reform

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'Bloody Monday’ raised the stakes for Ukraine’s constitutional reform. The new law not only affects the state’s relationship with the east, but threatens austerity measures and infringements on human rights. на русском языке

Vitaly Dudin
16 September 2015

265 votes ‘for’. Three people dead. This is how most of us will remember Ukraine’s current constitutional reform, which passed its first reading last Monday. For the second reading, however, President Petro Poroshenko will need 300 votes—and thousands of police officers.

Widely billed as a change to Ukraine’s system of local self-government and one motivated by the Minsk II agreements, Ukraine’s new constitution has other important provisions. This reform is designed to correct the shortcomings of the constitution, so apparent after Maidan. A closer look reveals the potential for increased political and socio-economic tension within the country.

Special status

For many people, the first question they ask about the constitutional reform is: does the amended constitution give special status to separatist territories in the east? A direct answer is hard to come by, but the language of Point 18 (‘complexities of local self-government in certain districts of Donetsk and Luhansk regions’) of the draft constitution hints at the granting of autonomous status to the Donbas.

The scale of concessions to the ‘People’s Republics’ can already be seen in the decentralisation law passed in September 2014, which grants them more influence in the process of appointing judges and prosecutors for local government officials, the possibility to create a ‘people’s militia’ from local people, the right for towns and villages to sign agreements on cross-border co-operation with regions of the Russian Federation, and a ban on criminal investigations into ‘participants of the events’ in the Donbas.

The government insists that the amnesty won’t include those who have committed serious crimes.

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Demonstrators protest against Ukraine's constitutional reform. Photo: Aleksei Vovak/RIANone of these provisions are yet to be realised, however, as Ukraine does not control these territories.

Decentralisation

A large portion of this new law concerns the organisation of local government. Several experts believe that these amendments will turn Ukraine into a presidential republic, thus overriding the main achievement of the ‘Revolution of Dignity’.

Naturally, some of these amendments are justified by the need to intervene in outbreaks of separatism on Ukrainian territory—at least, that’s what the president says to citizens with nationalist beliefs.

The president and government still retain some control, however, with the institution of prefects, who answer only to the president and central government, and the presidential right to disperse local councils in instances of non-constitutional legislation remaining.

At the same time, the base unit of self-governance is due to become the ‘community’ (obshchina), rather than town or village. In practice, this amendment will lead to the creation of enlarged neighbourhood districts, and is designed to save financial resources.

For instance, several neighbourhoods could be amalgamated into a single ‘community’, and then served by a single hospital or school (the numbers of which are due to be cut by 5% in 2016), whereas in the past each neighbourhood might have had its own polyclinic. Fundamental social provisions such as education, healthcare, transport and road repair could also be transferred to local council budgets. These measures are in complete accordance with the austerity policies thrust upon Ukraine by the IMF.

Nationalist rhetoric, meanwhile, focuses on the idea that the new constitution will legitimise the separatist republics in Donetsk and Luhansk. But the regulation of ‘special zones’ won’t change in comparison with their current position, as their status will become the focus of a normal political negotiation.

In effect, President Poroshenko is blackmailing us: offering a path to peace, he is cutting back citizens’ constitutional and economic freedoms.

Financial independence

A further hallmark of the reform is its focus on granting greater financial independence to Ukraine’s regions.

These moves towards implementing budgetary independence have been greeted with enthusiasm by the wider Ukrainian public, but they will be successful only given the necessary resources.

A further hallmark of the reform is its focus on granting greater financial independence to Ukraine’s regions.

While the government has stated that, since the beginning of 2015, Ukraine's regional governments are enjoying a budget surplus (13m hryvnya by February 2015), it’s hard to say where this extra money is going, as citizens are yet to see improvements in municipal services.

The surplus is likely connected to a decrease in expenditure, for instance, on making transport companies profitable, as well as housing and utilities. Tariffs on these services have risen in many towns and cities to an ‘economically viable’ level, and they may rise even further.

Customs duty contributions to the state budget will drop after the free trade zone with the European Union comes into effect in January 2016, and the income from the ‘single social contribution’, a blanket social payment introduced by the Yanukovych government, will also decrease due to decreasing wages. According to the Federation of Trade Unions of Ukraine, social security funds will see a deficit of 140 billion hryvnya in 2016, or £4.1 billion.

The state is therefore likely to assign more expenditure to local council budget; the possibility of making state institutions such as schools, universities, and hospitals financially ‘self-sufficient’, as Russia did in 2010, cannot be discounted.

Local budgets are also going to fall, with more utilities services transferred to private ownership. Companies are currently lobbying to lower payments on leases for oil and gas extraction.

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A woman demonstrating outside the government building in Kyiv. Photo: Aleksei Vovak/RIAEarlier this year, local councils received the right to regulate property taxes, and in Kyiv, parliamentary deputies with ties to business have already lobbied for these taxes to be set at the minimum rate, and the tax to be payable only from May 2016.

Ultimately, the question of financial guarantees to local self-government can only be discussed when big business pays its fair share. Why should talking about decentralisation for the tax system if large corporations still pay their dues via offshore schemes (and not where they make their money)?

Attempts to intervene

The attempt to alter Ukraine’s constitution has polarised society, last week’s violence merely confirms that polarisation.

For instance, on 13 August, conservative constitutional experts, politicians and public figures sent an appeal to Poroshenko, asking him not to change the constitution when war still rages in the east.

The attempt to alter Ukraine’s constitution has polarised society, last week’s violence merely confirms that polarisation.

While these people had previously called on the public to vote for Poroshenko, now they claimed these amendments would violate Ukraine’s territorial sovereignty. Instead, the signatories, largely conservative, demanded a moratorium on constitutional reform until Russian troops withdraw from Ukraine.

Right-wing politicians in Ukraine are concerned that the separatists will win the war of symbols, but, in any case, Luhansk and Donetsk won’t be able to use the powers given to them. Instead, the Ukrainian authorities ‘make concessions’ to the Donestk and Luhansk ‘People’s Republics’, and then accuse them of not wanting to negotiate or observe the ceasefire.

These accusations of treachery from the right sound naïve at best: Ukraine has been negotiating with representatives of the DNR and LNR for almost a year.

What do the separatists need?

Back in 2004, Ukraine’s oligarchs were promoting the idea of Ukraine as a country suffering from a regional split—a Russian-speaking east (nostalgic for the Soviet system) versus a Ukrainian-speaking west (oriented towards Europe).

As a result, the right to use the Russian language in eastern Ukraine became a political slogan, and protest on socio-economic grounds became practically impossible. As the country became more and more centralised, Kyiv appointed public officials in the east, causing dismay among the locals, and budget centralisation rose to the levels of the former USSR.

The danger of implementing IMF-backed reforms was viewed as a threat to stability, and nationalists, increasingly influential, became the catalyst. The Donbas answered by turning to conservatism and pro-Russian sentiment. Ultimately, the Donbas’ slogans of linguistic and cultural self-definition were justified, as was the desire to gain influence over the appointment of judges and other officials.

But the demands of the separatists, such as the creation of a ‘people’s militia’, reflect the fact that these groups are never going to find a system of governance which would meet their expectations.

 Previous attempts at autonomy, such as Crimea, haven’t been so successful either. 

Previous attempts at autonomy, such as Crimea, haven’t been so successful either. The Autonomous Republic of Crimea, as it was under Ukrainian state control, did not use its powers particularly effectively. Indeed, the peninsula’s poverty simplified the process of annexation for the Russian Federation.

New human rights

For most people, though, it’s the second section of the constitution, the section on human rights, that is going to affect them most of all.

The human rights chapter contains some conservative provisions, including a whole series of articles limiting the rights of citizens through the ‘defence of morality’. On this basis, interference into private life is permitted (Article 27), as well as limits on the activities of political parties (Article 32).

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Protesters and security forces clash in Kyiv. Photo: Stringer/RIABut ‘morality’ isn’t the only grounds for limiting freedoms. For instance, Article 31 authorises limits to freedom of speech when it comes to personal reputations, or the authority of the courts. Article 26 extends the grounds for detention without trial, in particular, for non-fulfilment of a court order, or to prevent a likely terrorist act.

Meanwhile, Article 32 bans fascist, Nazi and communist political parties. This is, unfortunately, another attempt to promote hysteria against Ukraine’s left-wing parties. If the new Constitution remains the only amendment to the recent laws on ‘decommunisation’, then this new provision could open the way for ideological repressions.

Though the exact implementation of this law remains unclear, the April ‘decommunisation’ law de facto criminalises justifications of the Soviet period. The Communist Party of Ukraine (CPU) and other ‘communist’ political groups have already been deprived of the opportunity to participate in October’s local elections. The ban even affects the ‘renewed’ Communist Party of Ukraine, which was set up by the Kuchma government in 2000 to draw votes away from the CPU.

But if the constitutional amendments are passed, political groups professing ‘the ideology of communism’ could also be banned. This isn’t a threat only to left-wing parties, but political parties as a whole. Any party that calls for de-oligarchisation, for instance, could risk liquidation.

Article 46 is another instance of increasing bureaucratisation of the right to strike. In the new constitution, the right to strike is understood exclusively in collective terms—individual pickets are not discussed. Even the liberal labour codes of Georgia and the Russian Federation enshrine the right of workers to down tools if they fail to receive compensation.

The Ukrainian authorities wish to force a situation where a strike becomes possible only after numerous agreements and negotiation procedures—even when employees are well within their right to strike. Despite appeals by civic activists, the Constitutional Commission has also done away with strikes in solidarity with other workers.

The rights of business owners are also likely to improve, with the constitutional working group guaranteeing foreign investors the ability to take profits and invested capital out of the country. Confiscation of property is being made more complicated: any court order should meet international law, making it easier for oligarchs to defend their property from confiscation in a London court. That said, the right to entrepreneurship has improved in its legal basis, with simplified procedures included in the new constitution.

Finally, the Constitution is due to lose Article 49, which protects the existing network of state health institutions from cuts. According to Vsevolod Rechitsky, a constitutional specialist, ‘free medical care will be accessible only in extreme cases.’

Current rights

The current constitution, in contrast, fosters social struggle and the development of civil society in Ukraine. It forbids restrictions to constitutional rights, and provides reasonable standards of defence for several of them. Currently, passing laws commercialising medicine, including the closing of hospitals, is practically impossible.

The current constitution allows civic organisations to demand concessions from the authorities and business under the guise of constitutional guarantees. This practice will be lost after the amendments take effect.

It’s not a given that the government will be able to pass the new section on human rights, as the proposals are yet to be made into a draft law. 

Of course, social movements in Ukraine are weak, but neoliberal reforms are pushed through parliament without difficulty. For instance, take March’s pension reform, which included another raising of retirement age for workers in harmful industries, or the law permitting arrests without court orders in the anti-terrorist operation zone.

These changes, by and large, aren’t anything new. The Yanukovych government wished to carry out many of the most unpopular reforms, including the removal of Article 49, which guarantees free medical care, as well as economic liberalisation.

It’s not a given that the government will be able to pass the new section on human rights, as the proposals are yet to be made into a draft law. Instead, the government is focusing on the decentralisation changes, which will be hard enough to get through parliament. The current constitution is rather demanding in this regard: 300 Rada deputies have to vote for this bill twice.

Uncertainties ahead

We don’t know whether the second reading of these constitutional amendments will lead to the end of the war in the east. There’s no certainty that the government will be able to muster 300 votes in December, when the second reading is due to take place, though following ‘Bloody Monday’ public opinion has definitely sided against the opposition.

But it’s worth noting that Ukraine has made efforts at peaceful regulation of this conflict. Meanwhile, the fact that far right groups have come out against these changes should be an important signal for residents of the Donbas. In this sense, Kremlin myths about the ‘Kiev junta’ are exposed for what they are—inventions of the Kremlin.

Separatist leaders have, of course, expressed dissatisfaction with these amendments, but this is rather a reflection of their investment in the continuing war, and might have negative consequences for their support. (The plans for integration of the separatist territories into the Russian Federation are also likely to harm the current leaders.)

Instead, Ukraine’s new constitution should include provisions for direct democracy, regional autonomy, giving citizens legislative initiative, radical de-oligarchisation, anti-discrimination and decentralisation, which is socially just.

Is it possible to make constitutional changes in war time? It is not only possible, but it is necessary if it leads to a cessation of conflict. While these amendments are far from a guarantee of peace, they should be made together with moves to liberate Ukrainian society from oligarchic power and extend the possibilities for every citizen as an individual.

At the time of writing, the ceasefire in the Donbas had lasted three days. Perhaps this is no accident.

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