Author: Kostiantyn Shokalo, analyst of the Centre of United Actions
April 21, 2020 was the first anniversary of the second round of the presidential election in Ukraine. In 2019, Volodymyr Zelensky was a clear winner: he got the support of 13.6 mln voters (73.22% of those who participated in the election). During his campaigning, the candidate Zelensky made many promises on reforming Ukraine and included them into his election platform.
“It is necessary to introduce an economic passport for every citizen. Every child will have the right to accumulate on his or her account a share from every sale of natural resources made by the state.” “Honest transparent competitions for all positions, high social status, and state insurance.” “Whether Ukraine wants the integration into NATO has to be decided via a national referendum.” Such were some of the many promises of the presidential candidate Volodymyr Zelensky at the time.
He has taken an obligation to fulfill them after coming into power. Most of the reformatory claims and proposals by Zelensky, though, were outside his competency and powers. Many of them can be implemented by the Government, the Parliament, and local governments, but not the President.
One of the important principles of democracy is a separation of powers. This principle is often violated by Ukrainian presidents that try to expand their authority and by doing so present a severe threat to the democracy in Ukraine. In the end, it can cause the collapse of the political system and the rise of authoritarianism.
The parliamentary majority comprised of MPs from the Servant of the People faction has an inseparable association with President Zelensky. He was the reason the party was created, and its name was appropriated from the TV series where Zelensky played the main character. PR-campaign, election platforms, and selection of candidates were also closely tied to Volodymyr Oleksandrovych and his victory in the presidential election.
However, the fact that Zelensky has a significant influence on the parliamentary majority does not give him the right to expand his power over state institutions and affect their work. In other words, the President has to act within the legislative frame defined by the chapters of the Constitution on the scope of presidential authority.
On April 22, 2020, the Office of the President of Ukraine has issued a documentary A Year of President Zelensky. In this video, Zelensky himself claims that it is necessary for the President to take control over a number of policy issues in order to ensure “real changes”. According to him, he cannot change anything for the country if he has no influence on other government bodies.
Maybe the intentions of mister Zelensky are honest, but the President is not just a person, the President is one of the highest positions in the country with powers, competency, rights, and obligations defined by law. With so much influence in the President’s hands, each transition of power brings a risk to give rise to a dictatorship: Ukraine faced this scenario in 2013-2014.
Thus, we will consider only those parts of the election platform and those promises of President Zelensky that are within his authority. Everything else is just manipulations made up to attract voters during the campaign. Even with the right to initiate and veto legislation the President cannot single-handedly reform everything or impose his will on other independent government bodies.
So, which promises from the last year has Volodymyr Oleksandrovych managed to fulfill, exactly?
People’s rule via referendums
In his election platform, the President emphasized that it is important to introduce a mechanism to ensure that only the people of Ukraine will set key objectives for their government via referendums. This promised Law on the People’s Rule does not exist yet, and the same applies to constitutional changes that can make such law possible.
Admittedly, in January 2020 Dmytro Razumkov created a working group on developing draft bills to address the issue of a people’s rule. A draft bill On the National Referendum prepared by the group later was opened for public comments. Recently the Verkhovna Rada has finished its work on the bill and now it is under scrutiny from Ukrainian and international experts. Who will cosponsor the bill and when it will be considered is unknown for now.
In addition, on August 29, 2019, the President submitted a draft bill On Changing Article 93 of the Constitution of Ukraine (on people’s right to initiate legislation). The bill has not been taken to the floor yet. The President actually proposes to grant people the right to initiate legislation that now only the President, the Cabinet, and MPs have.
According to the conclusion by the Constitutional Court of Ukraine, the term “people” is used in the bill in its widest meaning. The people are the bearers of sovereignty and the only source of power in Ukraine. They cannot be granted the right to initiate legislation without defining in the Constitution the number of Ukrainian citizens with the right to vote. The bill also infringes the MP’s rights to represent the people and exercise their authority for the benefit of all Ukrainian citizens. Consequently, the bill will restrict the rights and freedoms of citizens. What is the reason for the Verkhovna Rada to exist at all under such circumstances?
Justice and equality in the eyes of law for everyone
In his election platform, President Zelensky promised to submit draft bills On Abolishing the Immunity of the President, People’s Deputies, and Judges, On the Impeachment of the President of Ukraine, On Recalling a People’s Deputy of Ukraine. Draft bills concerning the immunity of the President of Ukraine and judges have never appeared on the parliamentary agenda.
As for other bills, the Parliament has already passed the Law on Changing Article 80 of the Constitution of Ukraine (on the people’s deputies’ immunity) and the Law on Special Procedure of Removing the President of Ukraine from Office (on impeachment). Both draft bills were submitted by the President.
As we can see, Zelensky did initiate the abolishment of MPs’ immunity and the introduction of the procedure to impeach the President of Ukraine. These bills have become laws due to the support from the Parliament (in particular, thanks to the monomajority of Servant of the People). However, these “promised” changes are questionable.
First, the abolishment of people’s deputies’ immunity was not something new in the legislation. President Poroshenko initiated it back in 2017 and his draft bill was just revised and resubmitted by President Zelensky.
Second, the impeachment procedure is not an easy one to implement. It takes at least three-fourth of the constitutional composition of the Verkhovna Rada of Ukraine to initiate the procedure — at least 337 votes. To change the Constitution, on the other hand, it is enough two-thirds of Rada’s composition — 300 votes. It turns out that the President is protected better than the Constitution. Moreover, it was supposed that in addition to the impeachment procedure the President’s immunity is abolished — his key defense mechanism. This has not been done yet.
Has not promised but tried to do
It seems as if instead of the promised people’s rule the President’s grip over the country is tightening. One of the prominent examples of Zelensky’s intentions is his attempt to get control over the National Anti-Corruption Bureau of Ukraine and the State Bureau of Investigations. There was no mention of this in the election platform, but unexpectedly two draft bills appeared on the agenda.
President Zelensky has also tried to change Article 106 of the Constitution of Ukraine to get the authority to create independent regulatory agencies. He wanted to get the power to appoint and dismiss the heads of the NABU and the SBI. The Constitutional Court of Ukraine has ruled such changes unconstitutional: they would have violated the principle of separation of powers and given the President direct influence over these bodies.
Fair trials and elections?
President Zelensky continues the judiciary reform that started in 2016 but with significant revisions. He has initiated the draft bill on changing the work of judicial self-governance. The bill was adopted by the Parliament and signed by the President on November 4, 2019.
The bill envisages a staff reduction of the judges of the Supreme Court, the lustration of members of the Supreme Council of Justice, and the launch of the commission on integrity and ethics. Some aspects of the judiciary reform were ruled unconstitutional by the CCU in March of 2020. Thus, without significant legislative changes the judiciary reform will be ineffective.
The Verkhovna Rada of the previous convocation has adopted the Election Code of Ukraine. It introduced a proportional electoral system with open lists and guaranteed gender quotas. The election reform has not been started by President Zelensky — the Election Code had been on the agenda since 2017. However, it was signed by Volodymyr Oleksandrovych.
Person’s safety — country’s safety?
President Zelensky has promised and indeed continued Ukraine’s integration into the EU and NATO (as is provisioned in the Constitution of Ukraine). He also planned to confirm Ukraine’s course toward NATO via a referendum but this has not been done because there is no referendum procedure yet.
In his platform, Zelensky claimed that the SSU would not investigate economic crimes anymore. In other words, the President proposed to restrict the SSU’s authority by taking law enforcement powers from it. The intent is impressive but no steps have been taken to make it real.
“We just need to stop shooting” — such was Volodymyr Zelensky’s position on the war during the campaign. After a year of unsuccessful attempts to stop the fighting in Donbas in such a fashion, his position has significantly changed. In the documentary A Year of President Zelensky, Volodymyr Oleksandrovych emphasized that it is difficult to resolve the military conflict and more radical solutions are possible. That is, the war is not over yet and the temporarily occupied territories have not been liberated.
Also, the President has claimed that there can be no negotiations on selling out Ukraine’s national interests and territories. No territories were given to the enemy, but negotiations renewed in December of 2019 in the Normandy Format in Paris. Negotiations in this format have not been held for over 3 years before that.
At the meeting in Paris, Ukraine and Russia agreed to exchange prisoners and pull back troops at several places in Donbas. The biggest problem — for Ukraine to regain control over its borders before the local elections — has not been solved.
Recap of the Ze! year
As we can see, the year of Volodymyr Zelensky’s presidency turned out to be quite ambiguous: some of the promises were fulfilled, some were not addressed at all. Among the achievements made within the scope of the presidential authority were the abolishment of MPs’ immunity, the course toward the integration into the EU and NATO, and defense of the national interests and territories.
Other aspects of his work during the year raise many questions. They were in full or partially fulfilled by the President, but their results turned out to be not like what was envisaged in his election platform. For example, changes to the Constitution that the President has initiated to ensure people’s rule and improve the judiciary are unconstitutional and have to be significantly revisited.
Zelensky’s amendments proposing to expand his powers to influence independent regulatory agencies were overtly unconstitutional and the CCU has confirmed that. Although the impeachment procedure has been introduced, its implementation is complicated and ambiguous in some parts. The most sensitive presidential promise is still unfulfilled: the war continues.
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