What prevents Ukraine’s system of public consultations in the central executive body policy-making process from working as it should? December 12, 2012 Ivan Ratushniak

Plenty has been done to institute public consultations in Ukraine

Regulatory environmentc The principles and basis for state policy have been defined and legislated. The legislative basis and mechanisms for consultations are in place. A Procedure for holding public consultations related to the formation and execution of state policy has been approved.

Organization: Primary responsibility (1) Responsibility for holding public consultations: Central Executive Bodies (CEBs) Council of Ministers of Crimea Oblast and Municipal (Kyiv/Sevastopol) State Admins Subunits

CEBs and local executive bodies (LEBs) now have advisory civic councils attached to them that: – coordinate effective interaction between executive bodies and the public; – bring public opinion into play in the formation and execution of state policy. Organization: Auxiliary support (2) In practice, CEBs and LEBs have begun to post draft legislation and regulations on their official sites.

What does the government say? (1) Presidential Decree №212 “On the Strategy of state policy to foster the development of civil society in Ukraine” dated March 24, 2012, notes: – “The work of CEBs and LEBs continues to be opaque, closed and excessively bureaucratic rather than moving towards effective dialog with civil society.” – “The mechanisms for civil society to be engaged in the process of formulating and executing state policy are not being properly used.” – “Positive instances of effective cooperation between CEBs, LEBs and civil society institutions are the exception rather than the rule.”

The President continues to emphasize the importance of engaging civil society in the policy-making process. During a meeting with student leaders on November 14, 2012, the President stated, “When reforms directly affect voters, it’s very important for voters to understand why they are taking place.” Viktor Yanukovych What does the government say? (2)

How is it that, given all the attention to democratic development on the part of those in power, civil society in Ukraine remains uninformed, unheard, and unsatisfied?

The problems (1) “Need to include civil society in the process” remains more declarative than actual: – In practice, CEBs and LEBs do not follow the Cabinet Regulation or the Procedure for holding consultations. – As a rule, the consultation process comes down to merely publishing draft legislation and regulations. – The democratic standards of public participation are simply ignored.

The institutional capacity of CEBs and LEBs makes it difficult to hold high-quality consultations: – Sub-units of CEBs and LEBs responsible for interacting with civil society lack the necessary knowledge and skills. – The staffing of such sub-units is frequently too small. The problems (2)

Neither the Law “On central executive bodies” nor the standard provisions regarding ministries and CEBs define the functions of these bodies with regard to holding public consultations. The problems (3) As a result, such functions are also missing in the provisions on sub- units attached to the administrations of these bodies and in actual job descriptions.

Oversight, as a means of upholding legislation on engaging civil society, is ignored. Officials, whose powers include calling to task those responsible for violations, follow the law at their own discretion: if they feel like it, they respond; if they don’t feel like it, they don’t. So public consultations depend directly on their will and whims. Such officials are not answerable to anybody for their biased actions and thus go unpunished. The problems (4)

The law does not specify responsibility and penalties for such direct violations as failure to follow the procedure for holding public consultations. The problems (5)

The public consultation process is not properly regulated. Provisions in individual laws only partly regulate this institutions: – The law only extends the requirement to hold public consultations to the Cabinet of Ministers, CEBs, LEBs and local governments. – There is no requirement whatsoever to hold public consultations when legislation is being drafted by National Deputies of Ukraine as a legislative initiative or in the Law “On the Regulation of the Verkhovna Rada.” – Nor is the President bound to hold consultations when drafting decrees and other legal acts: Presidential Decree №970 dated November 15, 2006, allows this requirement to be applied selectively. The problems (6)c

Civil society institutions are: – overly passive in exercising their rights and defending their interests in the policy- making process; – not making use of existing levers of influence on the government. The problems (7)

What steps might bring hope? 1.Civil society needs to pressure the government to move from declarative to real actions in terms of public consultations. 2.The institutional capacity of government bodies to hold public consultations needs to be improved. 3.A basic law needs to be adopted that will: – set the minimal standards, mechanisms and procedures for public participation based on the existing Procedure for public consultations; – be binding on all government agencies, without exception, including the President of Ukraine and VR Deputies. – establish the specific violations for which specific officials will be held accountable. 4.A system of independent state oversight needs to be set up that would automatically penalize officials for inaction in terms of holding public consultations.

Recommendations to civil society and donors (1) Demand that the Government provide a transparent institutional chart of the executors and a chart of state oversight for holding public consultations. Demand that the President and Government draft and incorporate changes to the provisions on CEBs and individual job descriptions to make it mandatory to hold public consultations.

Recommendations to civil society and donors (2) Demand that the Verkhovna Rada adopt a basic law that properly and fully regulates public consultations. Demand that the Government hold responsible all officials who fail to follow the procedure on holding public consultations. Broadly disseminate current legislative and regulatory documents on public consultations and demand that government bodies uphold them.