OF LOCAL AND REGIONAL AUTHORITIES
28th SESSION – 24-26 March 2015 2014
Mr Gianni Buquicchio
President of the Venice Commission
Ms President, members of the Congress,
First of all, I would like to thank the Chamber of Regions for inviting me to take part in this important debate on the process of decentralisation in Ukraine.
From the outset, I would like to underline that this is a debate on decentralisation, and not a debate on federalisation. Federalism is a system, which functions well in some countries, but it would not make sense for Ukraine to move from a highly centralised system directly towards federalism. Moreover, Chapter I of the Constitution of Ukraine on General Principles clearly prohibits a federalisation of the country. This Chapter is very difficult to amend, and I do not think that there would be much support for an amendment making Ukraine a federal country.
I would also like to underline that decentralisation is not an issue arising now, as a result of the conflict in some parts of Eastern Ukraine. On the contrary, decentralisation is in the interest of the country as a whole, and the process of decentralisation seems to me an important element of the efforts of the new authorities in Kyiv to make Ukraine a more democratic country, fully in line with Council of Europe values and standards.
Nevertheless, it is clear that the conflict has made it much more urgent to address this issue, and we now have clear deadlines coming from the Minsk agreements. Unfortunately, the conflict has also made many people afraid of decentralisation. They fear that decentralisation could be a means of breaking up the country.
I understand these fears but I do not share them. Decentralisation makes it easier for people to identify with the country they live in. It is not leading to separatism; it is an alternative – or rather the alternative - to separatism. It has enabled Italy to successfully integrate Alto Adige, South Tyrol, and it enabled Spain to stay together after the Franco years.
I therefore very much welcome that the Ukrainian authorities have launched the process of decentralisation. I understand that considerable progress has been made at the legislative level, but this is not the area of involvement of the Venice Commission. In this area Ukraine is benefitting from the assistance of other Council of Europe experts.
Our area is the Constitution. In this respect I am concerned that the constitutional reform process may be too slow, in particular with respect to the urgent need to tackle the constitutional aspects of decentralisation.
The President of Ukraine has established a constitutional commission with the task of preparing constitutional amendments. These amendments are to be submitted to the Verkhovna Rada. The Venice Commission will be represented on this Commission by an observer. But this commission has not yet started its work.
This is cause for concern since the Constitution of Ukraine cannot be amended quickly. Once the constitutional commission has concluded its work, the proposed amendments will have to be discussed by the Verkhovna Rada, the parliament, and submitted to the Constitutional Court for review.
After having obtained the opinion of the Court, any amendments have to be adopted in two distinct sessions of the Verkhovna Rada. This means that amendments can enter into force this year, only if the text of the amendments is approved in the first reading before the summer break.
It is, however, imperative, that constitutional amendments especially on decentralisation enter into force this year. One reason is that local elections are scheduled to take place in October. When voting the voters have to know what kind of bodies they are electing and which are the powers of these bodies.
Postponing the local elections would not be a good solution. Prolonging the mandate of democratically elected bodies beyond the period, for which they were elected, is always problematic. Prolonging the mandate of the current local authorities in Ukraine would be particularly questionable, since the last elections during the presidency of Mr Yanukovych were heavily criticised by both domestic and international observers. Ukraine has changed dramatically since these elections and this should be reflected at the local level.
The powers of the bodies to be elected will not have to be defined in detail in the Constitution. This should be done through legislation. Only some basic rules should be in the Constitution. Otherwise we would risk creating a rigid system which prevents further evolution.
But there are obstacles to decentralisation in the current Constitution, which have to be lifted, if decentralisation is to be successful. In particular, under the current Constitution, the state local administration carries out the executive functions for the organs of local and regional self-government. But real self-government requires that the self-government bodies have their own executive agencies.
There are other constitutional rules which could be improved. Last year already, President Poroshenko made proposals in this respect which we assessed, on the whole, positively, in an opinion to which your expert, Alain Delcamp, contributed. We therefore already have a basis on which to build.
Amending the Constitution in this respect will also send a political signal that Ukraine is ready to decentralise. This will enhance the credibility of the reform and send a clear message that the Ukrainian authorities are keeping their promises made to the Ukrainian people last year.
And, last but not least, in the Minsk II Agreement Ukraine undertook an explicit commitment to carry out this year a constitutional reform providing for decentralisation, including a reference to the specificities of certain areas of the Donetsk and Luhansk regions. Ukraine therefore has no choice but to carry out the reform this year.
I am aware that many people are skeptical whether this Agreement will hold. But all sides have to do everything to make it hold, and to act on the assumption that it will continue to hold. Therefore it is imperative to respect the provision of the Agreement that the reform should be carried out this year.
I also know that for many people in Ukraine it is difficult to accept to have special rules in the Constitution for these areas. But Ukraine has already, following the Minsk agreements, adopted special laws for these areas of Donetsk and Luhansk regions. It will be only logical to provide a constitutional basis for these laws. Such special constitutional rules are also not unique. Moldova has them and Ukraine already has special rules for Crimea.
In any case, we have to be conscious that decentralisation in the whole of Ukraine will be a complex process which will take time and can be carried out only gradually. For the separatist-controlled areas of the Donetsk and Luhansk regions solutions have to be found much more quickly and they will have to go further. A purely symmetrical approach with the same rules applying throughout the whole of Ukraine will therefore not be sufficient.
To sum up, it is of decisive importance for Ukraine to carry out a successful decentralisation this year, at the constitutional and legislative level. This decentralisation has to include specific rules for the separatist-controlled areas of Donetsk and Luhansk regions. I understand that there are concerns in this respect within Ukraine, but the country cannot afford to be held back by these concerns.
I would like to congratulate the Ukrainian authorities on what was already achieved, especially at the legislative level, but urge them to speed up the work on the Constitution to make it possible to adopt constitutional amendments in time for the October local elections.
Thank you very much for your attention.