What to do with lockdown introduced without declaring emergency state

The coronavirus pandemic in Ukraine surges and presents a significant threat.

The Parliament, the Government, and the President in their attempts to prevent the spread of the infection have already locked the border for foreigners, strengthened penalties for quarantine violations, stopped subways in Kharkiv, Dnipro, and Kyiv, and introduced the restriction on a number of people in public transportation vehicles.

In trying to act carefully and proactively, the government has outrun itself. Selective changes to laws, lockdowns in oblasts, and emergency situations without declaring the emergency state look rather like an imitation of fighting the pandemic. Local governments are forced to implement new restrictions without having neither authority to do so nor money to pay for the lockdown.

So what is the problem with not declaring the emergency state? Why local governments in some cities refuse to comply? And what should people do under such circumstances?

Government bodies and local authorities belong to different systems. Local governments are not under the control of the Parliament or the Cabinet, do not report to them and are accountable only to their territorial communities. However, the Parliament defines the scope of authority for local governments and dictates how they exercise that authority. Government institutions can appeal against unlawful actions of mayors and city councils in the court of law.

Ideally, the state and city governments should cooperate. In reality, they have different interests and goals: the state has to protect its citizens, defend state borders, ensure fair investigations of crimes, economic and industrial growth, etc. Cities are mostly concerned with their own development.

The state, though, often tries to impose extra obligations on local government bodies without even talking to them. For example, the President ordered mayors of big cities to increase the number of shuttle busses, busses, and trolleybuses. Where to get extra vehicles and drivers the President has not specified.

The shutdown of the subway also presents a grave problem. The consequences of halting this essential transport artery were felt instantly: unbelievable crowds at public transportation stops, long lines to busses, and hours-long trips from one part of the city to others. As a rule, people blame majors for such discomforts.

It is also amazing that among the pandemic and economic crisis, legislative changes that should have decreased the tax burden for small and medium-sized businesses in fact turned out to be most advantageous for big businesses and oligarchs. The Parliament relieved companies from paying land tax and real estate taxes for two months. There are at least two problematic moments here: first, small and medium-sized businesses almost never pay these taxes anyway; second, the revenue from these taxes goes to local budgets, so the state is trying to solve the problem at the expense of local governments.

To understand the scale of financial losses, let us look at city budgets for 2020. Kyiv was planning to get near ₴ 2.38 bln from the land tax, i.e. near ₴ 200 mln per month. Dnipro’s budget was expected to get ₴ 640 mln from the land tax, i.e. near ₴ 53 mln per month. Kharkiv’s budget revenue from the land tax — ₴ 583 mln, i.e. near ₴ 48.5 mln per month.

Neither the President, nor the Government, nor the Parliament had discussed the issue with mayors before making the decision. Danylo Hetmantsev, an MP from the Servant of the People faction and the Head of the Committee on Finance, Tax, and Customs Policy, gave the following comment:

“I confirm that we have not talked to mayors. We consulted those businesses that provide jobs for people that had elected mayors.”

Therefore, it is not surprising that city heads publicly or through greeted teeth criticize the initiative enforced by the Bankova and sometimes even refuse to cooperate. The mayor of Dnipro Borys Filatov openly challenged legislative changes adopted by the Parliament, the Government, and the President. He has provided somewhat different information about how much cities have to lose because of tax relieves:

“Their “tax relieves” has deprived city budgets (which, by the way, suffer the most because of extra spendings to fight the pandemic) to the benefit of oligarchs: Kyiv’s lost a billion, Dnipro — 300 mln, Kryvyi Rih — 250 mln, Kamianske — 100 mln.”

The mayor of Kyiv Vitalii Klychko has also criticized the tax break.

“Kyiv gets revenue for its budget from diversified sources, but for some other cities (the land tax — ed.) is practically the only source of revenue. Financially, they have been stripped naked. The decision was made and just handed down to us, and now we have to somehow survive and solve this problem.”

The Association of Ukrainian cities also argued against these legislative innovations: in the letter to President Volodymyr Zelensky (signed by Vitalii Klychko, among others) they asked not to sign the proposed bills.

Cities, towns, villages, and amalgamated communities that spend hundreds of millions of hryvnias on fighting the pandemic will not have enough money soon. Moreover, they will not be able to pay even minimum wages to medics, teachers, social and daycare workers, employees of public transportation and utility companies!

One of the biggest conflicts concerning these issues occurred between President Volodymyr Zelensky and the mayor of Kharkiv Hennadii Kernes because the latter did not want to close schools and stop the subway:

“Common sense tells us that the Cabinet of Ministries after making a decision to introduce a nation-wide lockdown should have given the authority to decide whether to close schools and kindergartens to local governments that are better informed about the epidemiologic situation than people in Kyiv. The situation with the lockdown demonstrates also that Ukraine needs real, not fake, decentralization.”

Mayors and city councilors are elected by voters — members of territorial communities, and not Volodymyr Zelensky. Without declaring the emergency state neither the President nor the Government can force local governments to do anything. If because of local governments’ actions, though, the infection spreads further or people are hurt, local authorities will be responsible in the eyes of their voters and face criminal liability in the eyes of the state.

Without declaring the emergency state, government institutions cannot close the subway, intercity traffic, shopping malls, kindergartens, or schools, restrict the number of people in public transportation vehicles, etc. Most of these things are the responsibility of public companies, and only local governments can decide whether to stop these companies or restrict their work.

The Government can declare an emergency situation but that will be inconsequential for local governments and Ukrainian citizens. The emergency situation does not give the right to restrict human rights or the scope of local governments’ authority. With the emergency state declared, on the other hand, government bodies, local governments, and military command temporarily get additional powers to deal with the problem, some human rights can be temporarily restricted.

The Cabinet can also introduce a quarantine, but local governments are not obliged to act on it and people can ignore it too. Under the quarantine, state and local government bodies can at best strengthen the rules of entering and leaving particular territories, engage companies into localization or liquidation of the pandemic, or temporarily use buildings and equipment necessary for anti-pandemic measures. Still, no positive actions are mandatory for local authorities.

The fact that state or local government bodies by declaring the emergency situation or quarantine have no authority to enforce most of the restrictions does not mean that we should endanger ourselves or our families: we really should stay inside if possible and switch to remote work if there is such an option.

Without declaring the emergency state and giving local authorities additional powers, the arsenal of what mayors and city councils can do is quite limited. They have control only over public utility companies and, thus, can close public kindergartens and schools, change the schedule or halt public transportation, close public cinemas, theatres, museums, etc.

Local governments cannot influence private establishments. In theory, private kindergartens, schools, shopping malls, and cinemas are allowed to work. Local authorities can only recommend them some course of action, but the final decision is made by the owners.

Still, no one can deprive local governments of the chance to talk to people. They can do that via local TV-channels, radio stations, newspapers, social media, or during live meetings. That is a way to calm people down, provide them with the latest updates, and inform them where to go when in need.

The mayor of Kyiv Vitalii Klychko informs about the situation in the city via video messages on Facebook, radio shows, and programs at a local TV-channel. Of course, it is easier for him than for most other Ukrainian mayors because news about Kyiv is covered on nation-wide TV-channels and commented on by top officials.

Mayors of Lviv and Dnipro are doing the same, basically. Andrii Sadovyi addresses his voters via local TV-channels, video messages, posts on social media, and live meetings. Borys Filatov also informs his community via personal pages on Facebook and Youtube, and also at local TV-channels.

People suffer from this difficult situation the most. The subway is closed, the number of seats in public transportation is limited, and so people have to look for alternative routes to their workplaces: they either use public transportation or go on foot. That does not help to ensure isolation and stop the spread of the coronavirus.

No one is guilty here, not everyone can work remotely. 119 thousand police officers or 74 thousand of the State Emergency Service employees cannot stay home. In Kyiv only, 35 thousand doctors have to get to their workplaces. The same goes for civil servants, employees of banks, insurance companies, supermarkets, pharmacies, and public utility companies.

Overall statistics are unpromising. According to the State Statistics Service, 40% of Ukrainians do not have savings, 3.5% lack the money even for food. Thus, many people cannot afford to stay home fearing that next month they will not be able to sustain themselves.

The key problem still stands: how doctors, police officers, and firefighters can get to their workplaces? In social media, there are more and more stories about the adventures of doctors that are forced to travel to their hospitals from neighboring localities while intercity traffic is prohibited.

Under such circumstances, people can only hope for the wisdom of state and local authorities and that the situation will not get worse.

For now, it looks like the state is trying to only imitate the fight against the coronavirus. Selective legislative changes passed by the Parliament are insufficient for neither businesses, nor employees, nor the country. Instead, the Parliament, the Government, and the President should institute new effective mechanisms to prevent the spread of the disease, create a necessary legislative and economic environment for businesses to work in this new situation, and, most importantly, start drafting a bill declaring the emergency state.

Prime Minister Denys Shmyhal recently has proposed an idea: “to develop a draft bill that will give government bodies the authority to delegate their powers to make a vitally important decision during the pandemic.” This is about the procedure of declaring the emergency state: if the Parliament is unwilling to approve President’s decree, then give the Head of the State the power to make this decision by himself. The Constitution provisions that the emergency state can be initiated by the President but needs approval from the Parliament, so PM’s proposal cannot be introduced without changes to the Constitution.

Only the emergency state can be a legitimate reason to restrict people’s rights for work, freedom of association or of enterprise, restrict the work of businesses, expand the scope of local governments’ authority. Still, it is important to remember that all these measures can be introduced only temporarily.

The emergency state will not automatically solve the problem and people are always suspicious of such initiatives. If the situation is handled professionally, though, it will at least help to legitimize the Government’s plan to stop the spread of the coronavirus and make people stay home.