Robert Agranoff Advisor on Intergovernmental Relations and Local Self-Government, PDP

1. Most of this law is complimentary to the law on local self-government. What it seems to do in addition is to specify processes for creation and elimination of subnational units of governments, boundary demarcation and delineation procedures, and some brief mention of dispute resolution.
2. The law is very repetitive and a number of the President’s calls for deletion seem to be in areas where there is extreme repetition. It is not clear why powers and responsibilities must be repeated again and again.
3. In a number of cases the President’s objections lie in the area of deleting provisions that reinforce the Verkhovna Rada’s normative power over subnational governments. On the other hand, many provisions preserve the power of the VR to settle the main issues of territorial organization of the state.
4. Article 27, which first (or most strongly) deals with the power of the VR to deal with boundary questions, e.g. formulation, approving of new cities or territories, etc. is suggested by the president for deletion. Normally, parliamentary bodies – not the executive branch/powers – have this power. The reason why these controls are not in executive’s hands is that historically they have administratively adjusted boundaries for political reasons, particularly if they don’t like who is in control in certain areas. It is also easier for executive agencies to ignore public opinion. What better way to punish your political enemies than to abolish their territory or prevent a new settlement from becoming a city or district? Parliamentary bodies have different fractions represented and such arbitrary treatment is, while not unheard of, much harder to invoke. Moreover, new jurisdictions are usually created, adjusted and eliminated by special law and parliament is, of course, the law-making body. Finally, territorial organization of the state is constitutionally delegated to the VR in Ukraine and these functions appear to come under territorial organization.
5. Another large issue is territorial dispute resolution in Article 36. Should it be, as stated, a function of the VR? While creation, delineation, abolition, etc. may be a legal function, disputes are normally judicial functions. In most countries the courts or some special administrative court deals with these issues. It provides for a legal judgement whereas in parliamentary bodies they are more likely to get political treatment. This is not a legislative function and should be deleted from the law.
6. Article 34 refers to the need to consult public opinion in a jurisdiction while resolving issues of administrative and territorial systems. The consulting public opinion provision is wide open to interpretation and is the sort of thing that always becomes open to court challenge in other countries. The way the law is now written (see no. 5 above) the VR might have to sit in judgement regarding issues of this type. I am sure the VR has many more important things to do than to decide a dispute over the adequacy of public consultation in territorial questions.
7. Article 13 tries to delineate all of the possible areas that would be included in a territory and the President’s draft lists two more. This could be streamlined because the law will never cover everything possible. VR bill draftees seem to like long lists of inclusion rather than general categories. I would add after the list, “and all others as defined by local regulation” (or normative action).
8. Article 17. Microstructures, e.g. those at the submunicipal level. In some countries they are not mentioned in the law, but just adopted or supported by executive order/decree.
9. What seems to be missing from the law are provisions spelling out a procedure that would allow councils to define boundaries on their own, making it easier for the VR to quickly ratify non-controversial decisions.
10. Also missing is any mention of relationships between representatives/units of state administration in oblasts, raions, cities, settlements, etc. While they may not be “territorial” they certainly are administrative.
11. I agree with those observers who conclude that Article 5 and others make clear the supremacy of the VR on matters of territory, but because other bodies also have rights, (Cabinet of Ministers, VR of Crimea, local executive bodies and others) it indirectly provides for presidential influence, if not direct powers. In particular, presidential powers over the cabinet would seem to be the important force here. This should lead to presidential approval of the law.

April 19, 1999