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Slaves with the Mandate, or the End of Decentralization of Power

26.01.2016
Public administration /
Decentralization

On the threshold on the New Year, the Verkhovna Rada of Ukraine has adopted in the first reading draft Law of Ukraine registered under № 3693. If it is adopted as a law, decentralization process will end up in failure.
This bill implements the imperative mandate on the local level and provides political parties with the right to recall deputies of local councils, without a possibility to challenge the lawfulness of such decisions before a court!
 


On the threshold on the New Year, the Verkhovna Rada of Ukraine has adopted in the first reading draft Law of Ukraine registered under № 3693. If it is adopted as a law, decentralization process will end up in failure.
This bill implements the imperative mandate on the local level and provides political parties with the right to recall deputies of local councils, without a possibility to challenge the lawfulness of such decisions before a court!
The absurdity lies in the fact that all the factions of the democratic coalition have supported this document. The only faction that hasn’t given a single vote “for” was the… Opposition Bloc.

The authors of the draft Law of Ukraine “On Amendmаnts to the Law of Ukraine “On the status of deputies of local councils”” (Reg. No. 3693) are leaders of the parliamentary factions – Yulia Tymoshenko, Oleh Bereziuk, Yurii Lutsenko, Oleh Liashko.

The draft law is devoted to the mechanism of recalling deputies of local councils. In fact, the ideas of this document establish the imperative mandate at the local level, that doesn’t correspond to the recommendations of the Venice Commission and make the elected representative of the people dependent on the will of his political leader.

How were the deputies turned into slaves by amendments to 5 articles?

The authors of the draft law suggest to complement by additional paragraphs the current Law of Ukraine “On the status of deputies of local councils” that determines grounds for premature termination of the powers of the deputies of local councils and grounds for their recalling.

Current legislation stipulates termination of powers of any local deputy in a number of cases:

1)    When the voters recalled him (controversial mechanism, that doesn’t deny a political party an opportunity to get rid of “uncomfortable” deputies, though this way is not very simple and at the same time it actually deprives citizens of the right to recall a person nominated by a political party;
2)    If his citizenship is terminated or he left for permanent residence abroad;
3)    If he is elected a deputy to the other local council;
4)    In the case of court recognition of him (her) being either disabled or absent without notice;
5)    In the case of his death.

There is a proposition to add one more paragraph: recall of the deputy by the governing body of the party, which coordinated the decision of the relevant meeting on the nomination of the electoral list of candidates to the relevant council.

That is why the list of recall reasons is being completed (that, according to the bill, is possible not only by popular initiative but also by initiative of party organization).

Currently the reasons for the recall of deputies by popular initiative, that is by the decision of voters, are standart:

1)    violation by a deputy of local council the principles of Constitution and laws of Ukraine, that is set by the court;    
2)    missing from more than a half of the plenary meetings or the sessions of standing commision of the council throughout the year, non-fulfilment of his commitments  as a deputy in his constituency;
3)    inconsistencies between the activity of a deputy and the main principles and positions of his electoral programme, unfulfilment of his commitments to report back to the electors and to hold meetings with them.

It is expected that the draft law registered under № 3693 will be expanded with a range of new grounds:

1)    inconsistencies between the activity of a deputy and the purpose and target, set in the party rules;

2)    failure to join the faction of the local organization of the political party, by whose relevant organization’s election list he was elected a deputy;

3)    exit of a deputy from the faction of the local organization of the political party, by whose election list he was elected,or his expulsion from the party for failure to execute party decisions, including solidary voting.

The right to submit a proposal to recall a deputy of local coucil has a local organization of a political party, that nominated him. A very decision to recall the deputy is made by the highest managing body of the political party (read – in Kyiv).

In other words, a party can in an absolutely legitimate way deprive any deputy of a mandate if he votes “not in the way the others do” or not as it is needed.

Also it is necessary to remember that according to the new Law of Ukraine “On Local Elections” the right to nominate deputies to regional councils, city councils (including Kyiv), district councils and city district councils have ONLY local organizations of parties.Talking about village and settlement councils, here works the principle “it’s up to me either to nominate myself or to be nominated by a political party”.

So, any way, all the deputies of local councils, if it is not village or settlement, are to some degree the “hostages” of one or another political party.

Moreover, an important nuance set out in the draft law (reg n № 3693) is that a decision of party to recall a deputy of local council is final and can’t be appealed in a court.

This “wonderful” novel of the law in fact means excluding a question of the recall of a deputy of local council by a party from litigation, that violates the norms of Constitution.

I see the goal – do not see any obstracles

The passage of the bill in the Parliament was not less stunning, than its content.

On the very day of its registration, on the 22 of December, there was prepared the conclusion of Central Scientific Experts Office of the Verkhovna Rada of Ukraine and the draft bill was considered at the meeting of relevant committee – Verkhovna Rada Committee on State Building, Regional Policy and Local Self-Government, under the chairmanship of Serhii Vlasenko.

Central Scientific Experts Office of the Verkhovna Rada of Ukraine in its conclusion has mentioned that the idea of recall of deputies in a form that differs from the procedure of their election (voting of the electors for the recall of a deputy) is conceptually inadmissible. 

Besides, it is indicated in the Conclusion that the proposal of recall of deputy in the case he votes against the decision of a faction means that a deputy of a local council is not free in making his decision towards voting, so the very sense of electing a deputy to a council is being lost.

And furthermore, the norm that regulates recall of a deputy in the case he doesn’t affiliates with a faction of a party, by whose election list he was elected, doesn’t comply with the very Law of Ukraine ” On Status of Deputies of Local Councils”, that doesn’t include a norm demanding the obligatory joining a faction.

However, the Committee, in spite of all the remarks of Central Scientific Experts Office, was not able to reach an agreement on what conclusion to give.

And that’s why, so to say, decided to wash their hands of it, and as it is said in the committee’s Conclusion “ to introduce the draft law (reg n 3693) to the Parliament for making decision towards it“.

The next day, on the 23 of December, the draft law was introduced to the Parliament and at 8 attempt it was approved through summary proceeding in the first reading. By a general number of 227 votes ” for” it has been supported by all the five factions of the parliamentary coalition – “PETRO POROSHENKO BLOC”, “PEOPLE’S FRONT”, “SAMOPOMICH Union, Oleh Liashko Radical Party and “Batkivshchyna”.

Quo Vadis, Parliament?

In the current situation, the government is giving broad publicity to the process of decentralization, at the same time trying to take absolutely different way.

Let us be clear: the draft law registered under № 3693 is a threat to the whole reform of local self-government.

It doesn’t make sense to pass the powers to the local self-government bodies, to make budget decentralization, owing to which local budgets get much more money for the needs of ordinary people, if as a result we get deputies, that are dependent not on their electorate but on managing bodies of political parties in the capital.

Legislative initiative of political leaders in this case is nothing but a try to implement absolutely legitimate way of strengthening of the staffing of deputy corps  by loyal people and get rid of nonconformists.

It is a huge step towards destruction of freedom of action of local self-government bodies.

And citizens’ view won’t be taken into account as usually.
                                                                                  
Ihor Koliushko, Kateryna Davydenko, Centre of Policy and Legal Reform