| (52a A5) Analysis of Draft Law “On the Administrative and Territorial System of Ukraine” of December 12, 1997 By E. Rakhimkulov |
 |
 |
 |
|
Analysis of Draft Law “On the Administrative and Territorial System of Ukraine” of December 12, 1997 By Edward Rakhimkulov Background Territorial organization and the system of administration over territorial units in Ukraine is set out and delineated in the Constitution of Ukraine. Its chapter IX establishes basic principles of the administrative-territorial system, based on grounds of indivisibility/unity of the state and relevant economic, geographic and demographic factors. The draft law "On Administrative-Territorial System of Ukraine" aims at provision of division of powers and responsibilities between the local self-government authorities, the legislative branch (the parliament), and the hierarchy of the executive institutions on the local, regional, and national levels in the matters concerning classification of the populated settlements and administrative-territorial units, their boundaries, names, official information about them, and their confines and demarcation on geographic maps as well as on the territory. The draft law determines principles and establishes mechanisms of setting and change of territorial boundaries within the state and provides categorization of administrative-territorial units: settlements (cities, towns, and villages), districts (rayons), regions (oblasts), the Autonomous Republic of Crimea, and the cities of Kyiv and Sevastopol. The draft is one among the package of legislative acts that deal with the matters of division of powers and responsibilities between self-government authorities and executive institutions on the subnational and national levels. Other legislation consists of laws "On Local Self-Government in Ukraine", "On Local State Administration”, etc. General Notes on the Draft Law 1.The draft law is, in effect, a legislative backup of the status quo of the territorial division and administrative system that existed in Ukraine after 1991 as inheritance of the Ukrainian S.S.R. One of the major distinctions of the draft from the previous administrative-territorial system is that it eliminates the so-called town settlements (selyshcha miskoho typu) and classifies them as towns. 2.In many of its articles the draft is overly repetitive. In the first three articles it repeats the exact wording of the Constitution of Ukraine (chapter IX); in later ones it reiterates similar principles or mechanisms of division of powers and responsibilities for different territorial units separately. 3.The draft law attempts to deal with the new territorial formations established by the law "On Local Self-Government in Ukraine": city, town and village districts (okruhy). The president's remarks to the draft alters these to "city, town and village communities (objednannia), and eliminates them from several articles. This is legislatively justified as the union of villages, towns, and cities is an essential part of local self-governance and is legislatively delimited and outlined in the law "On Local Self-Government”. 4.The Verkhovna Rada is vested with powers and responsibilities that under the law "On Local Self-Government in Ukraine" should be granted to subnational governments, such as naming and renaming, establishment and elimination of settlements and city and town districts. Implications to Local Self-Governments 1.Kyiv and Sevastopol city councils are granted the right to set the city borders, while this right is not granted to other territorial units and are under the jurisdiction of the parliament. This power is also vested by the current draft in the Verkhovna Rada, creating grounds for conflict between these cities' councils and the legislative branch. 2.Article 36 (5) states that local authorities can resolve disputes in courts. It is difficult to imagine this procedure working in case with the land plots of industrial use located on the territory of two administrative units. The law most likely has to provide some authority in dispute resolution between the administrative units with regard to jurisdictional issues. In general, the passage of the draft would have a positive effect on the activities of the local self-governments in Ukraine after modifications are made in the legislative discussion of the draft. The advantages of the current draft: a) Outlines, though too generally, basic responsibilities and powers of the local self-governing bodies in their territorial boundaries and providing them with at least some mechanisms for division and operation of the communal property, economic and enforcement activities delegated from the center, such as definition of the tax base, tax collection, imposition of local taxes and fees, and the like. Such procedure can be set out by the law on the local communal property with a reference to it written in the current law. b)Specifies boundary demarcation and change procedures, which may become necessary to more efficiently carry out economic activities and public service. c)Provides for greater responsibility of the local self-governing bodies over the non-sanctioned construction in the city and town suburbs, road construction and maintenance, and provision of other necessary public services. However, the draft needs several modifications so that it is compliant with other legislation and, foremostly, with the constitutional provisions. Some critical remarks: a)The draft does not provide for mechanisms dealing with territorial disputes that might arise in the situation whereupon the current territorial division contradicts the one set out by this law. For instance, when communal property, settlements and enterprises overlap on the boundaries of the two administrative-teirritorial units. According to article 36.5 all the disputes would be decided in court, however the principles for such resolution are not set out. b)Articles of the Transitional Provisions (Chapter V) provide for change of status of small towns (selyscha) into villages. This bears potential grounds for conflicts of status, especially in what concerns budgetary matters, because small towns according usually get bigger expenditure categories than villages. c)Article 33 delineates powers of the executive institutions to submit their considerations regarding the naming and renaming of the administrative-territorial units, yet the relations and mechanisms of cooperation between the local self-governing authorities and executive institutions are not set out. d)The powers of the local self-governing authorities in the matters of the territorial administration are limited to hierarchical subordination of functional activities (submission of proposals to higher authorities). e)The draft does not specify the status of city and town suburbs (prymiska zona). f)The draft does not provide the mechanisms and procedures for demarcation of administrative boundaries on the territory. Many observers indicate that there exist many practical controversies in this draft law. Some parliamentary deputies interested in the issues related to the local self-government even call it "the most problematic piece of legislation” on the current Verkhovna Rada’s agenda. Given the problems with the law listed above, and taking into consideration its positive sides and potential advantages, there is a very remote possibility that the draft law on administrative-territorial system in Ukraine could pass through the main legislative body and would not be vetoed by the president before presidential elections in October 1999. August, 1999 |
American Councils for International Education presents a professional exchange program – Legislative Fellows Program (LFP), funded by the US Department of State, coordinated by American Councils for International Education, which is the official program coordinator in Ukraine.
