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17 July, 2016  ▪  Oleksandr Kramar

Constitutional confrontation

Many of the problems connected to Ukraine’s Basic Law are the result of trying to rebuild it on the foundations of a soviet constitutional heritage that does not reflect current realities

The current version of the Constitution of Ukraine resembles a house of cards that, at any moment, will collapse from the slightest puff of air coming from those who are prepared to demonstrate the necessary political will. Ukraine’s Basic Law is not the outcome of a social contract or of a nationwide consensus, but simply of a series of forced compromises among political actors jockeying for power. Today, this tug-o-war is currently at a fever pitch.

A sticky post-soviet mess

Setting aside the “managing and directing” role of the Communist Party, which was dropped even before Ukraine became independent, the Ukrainian SSR was nevertheless a soviet republic. Art. 2 of its last Constitution, approved in 1978, clearly stated “the people exercise government of the state through Councils of National Deputies... All other government bodies are subordinate and accountable to Councils of National Deputies.” At the pinnacle of this system was the Verkhovna Rada.

The new model of government in Ukraine after seceding the USSR was built upon the parliamentary model the country had inherited, while taking into account a new institution, the presidency. Its emergence in 1991 led to a slew of unsystematic corrections and additions to the 1978 Ukrainian SSR Constitution, which continued to be in force in 1995 and 1996. Altogether, 18 amendments were made after Ukraine became independent, and the original fairly streamlined model, where the Verkhovna Rada stood above all other government agencies, including the “highest body,” the Cabinet, started falling apart.

Amendments that came with the institution of the presidency declared this individual the “Head of State and of the Executive Branch,” “responsible for bringing the Constitution and Laws of Ukraine to life through the system of state executive bodies.” The president effectively was the end point for the entire executive branch and mediated its interactions with the legislature: “manages and directs the executive activities of the Cabinet of Ministers; “heads the system of central executive bodies (CEBs), and provides for their interaction with the Verkhovna Rada;” “presents the draft state budget and the report on its fulfillment to the Verkhovna Rada for review;” “nominates candidates for the posts in his remit, that is, the Ministers of Foreign Affairs, Defense, Finance, Justice, and Internal Affairs, and the chairs of State Border Security Committee and the State Customs Committee to the Verkhovna Rada approval; dismisses these individuals from their posts;” “establishes, reorganizes and dismisses ministries, agencies and other state executive bodies; appoints and dismisses the directors of these agencies; revokes legal acts of the Cabinet of Ministers, ministries and other central executive bodies.”

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On the other hand, the Government, even though it is subordinate to the president, remains “accountable and responsible before the Verkhovna Rada,” which had the right to express non-confidence in the premier, individual ministers or the Cabinet as a whole, which could result in their dismissal.

People power or power to the president?

As it soon became apparent, by leaning on the legislature, premiers like Leonid Kuchma in 1992-1993 could challenge the authority of the president in the executive branch of government and attempt to confront that individual.

Moreover, the question of subordination in the executive at the local level, which was dependent on local, county and oblast councils, remained unclear. A systemic conflict among different branches of government led to a political and constitutional crisis and, in the end, to early elections to the Verkhovna Rada and the presidency in mid 1994. Nevertheless, this did not resolve the problem of the tug-o-war over influence, and by May-June 1995, these two government institutions once again were on the verge of open war.

On May 18, 1995, the majority in the Verkhovna Rada adopted a bill “On state government and local government in Ukraine,” but was unable to get the necessary two-thirds vote to make the necessary amendments to the Constitution as well. On May 31, 1995, President Kuchma issued a decree to survey public opinion over trust in the president and the Verkhovna Rada but the Rada vetoed this act. The only solution to the loggerheads was a temporary compromise, known as the Constitutional Agreement between the Verkhovna Rada and the President, signed on June 8, 1995. Consisting of 61 articles, it was, in effect, a replacement for the country’s Basic Law in terms of the separation of powers.

The preamble to this pseudo-constitution was illustrative as it emphasized the equality of the two sides, which “received their powers directly from the people” and “on the basis of good will, mutual concessions and compromise were able to agree on the following: “...the Verkhovna Rada is the sole lawmaking organ in Ukraine...the President is the Head of State and head of the executive branch of government of Ukraine... The two sides are aware that failure to uphold the provisions of this Contract will result in chaos in society, the collapse of the economy, the threat of social upheaval, and could jeopardize the very existence of a sovereign, democratic Ukraine.”

This excerpt is important as it illustrates what motivated Ukraine’s lawmakers to come up with a new Constitution given how imbalanced the existing one was. It wasn’t about drafting a document from scratch to provide an ideal model of government for the country, but only about compromising between two parties that were at war over governing powers and were trying to prevent it from spilling over into a real domestic war. In that situation, the position of the Head of State was clearly stronger than a poorly-structured legislature that had been elected after several tries using the FPTP system and whose members were effectively carved up. Thanks to this, the president gained the upper hand.

Art. 19 of the constitutional agreement established that, as head of the executive branch, the president exercised its powers “through the Government/Cabinet of Ministers led by him and the system of central and local state executive bodies.” Although only individuals elected to chair their respective councils were to be appointed heads of local state administrations (MDAs), the president was granted the right to dismiss them from both posts for not carrying out his orders. In short, the formal conditions did not eliminate the real dependence of all MDA heads on the Head of State.

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At this point, the president could effectively run the country independently of the Verkhovna Rada, while the legislature could barely pass a bill without his approval. For instance, Art. 25 of the Constitutional Agreement provided that “The president issues decrees on economic reforms that are not regulated by existing legislation.” What’s more, if the Rada tried to “regulate” similar issues against the will of the Head of State, he could simply issue a veto, at which point 300 lawmakers needed to agree to overcome the veto. The Rada also had the right to veto presidential decrees, but only if they were actually unconstitutional and prior to the issuing of a ruling on them by the Constitutional Court.

The post-independence Constitution: a lopsided compromise

The Ukrainian Constitution that was passed on June 28, 1996, was based largely on the balance of power between the president and the legislature established in this agreement. Moreover, its passage was also done under pressure from the president, who maintained the initiative. In order to stop the games in the Rada with inserting thousands of corrections intended to weaken the power of the president in the draft Basic Law that had passed first reading, on June 26, Kuchma issued a decree stating that there would be a national referendum to adopt the new Constitution on September 25. Facing such a threat, the deputies spent 24 uninterrupted hours working up the final version of the Constitution on June 27-28 and finally passed it—after which the presidential decree was withdrawn.

Formally, the new Constitution no longer referred to the president as the head of the executive branch, but his status was essentially preserved, while control over local government bodies became more clearly articulated. The Verkhovna Rada also lost its power of veto over presidential decrees, which now became binding on all branches of the executive, including MDAs or local administrations, while the Head of State hung onto the power to veto bills passed in the Verkhovna Rada. As before, overturning a presidential veto required a “constitutional” majority of two thirds of the seats in the Rada, or 300 votes.

The highest body in the executive branch” became the Cabinet of Ministers, but it was still responsible before the president, who had the power to appoint and dismiss its members, including the premier, as the Head of State. And, of course, the president could still cancel an acts issued by the Cabinet, while the Cabinet, among its activities, not only had the Constitution to honor but was obligated to carry out all acts of the president and all legislation, which could only come into effect with the imprimatur—of that same president. The president also maintained the right to establish or reorganize ministries and other CEBs.

Art. 118 of the new Constitution clearly stated that executive functions at the oblast and county level was handled by local state administrations (MDAs), whose heads were appointed and dismissed by the president at the recommendation of that same Cabinet of Ministers that was subordinate to the president, and were accountable before them. Their relationship to former local councils, whose chairs they had to be in the past, was now limited to being accountable “in those areas of competence relegated to them by the relevant county or oblast councils.”

Thus, the 1996 Constitution in its original edition established an idiosyncratic duality of power in the country. On one hand, the entire executive branch could function basically completely autonomously from the situation in the legislature—under the direction of the president, the Cabinet, and the local MDAs. On the other, fundamental decisions such as the Law on the State Budget, which were regulated exclusively by laws according to the Constitution, the appointments of the premier, prosecutor general and a slew of other heads of CEBs were supposed to be approved by the Verkhovna Rada.

Dominated by leftist populists until 2000, the Verkhovna Rada and the executive branch headed by the president could effectively live in parallel universes under the 1996 Constitution for quite some time. The Rada all too often passed laws and resolutions without the say-so of the president and Government that were completely detached from any reality and did not bind anyone to anything. And the rare joint decisions were adopted on the basis of fairly complicated opportunistic compromises.

To carry out systemic transformations, the president and Government needed stable legislative support from a Rada majority that shared responsibility for the country’s development with them. But no such creature was provided for in the 1996 Constitution.

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After Kuchma was elected to a second term, he tried to launch a new offensive against the legislature and get a new balance of power to be considered. In January 2000, he announced a referendum to ensure him the necessary support for decisions allowing him to dismiss the VR if it fails to form an effective majority within 30 days or if it failed to pass the State Budget within 90 days. He also wanted to remove from the Constitution provisions that allowed deputies to be sued in criminal court, detained or arrested only with the approval of their colleagues in the Rada, to reduce the number of seats in the legislature from 450 to 300, and to institute a two-chambered parliament, one of which would represent regional interests across Ukraine.

The president vs the Rada

Still, the president’s offensive against the Verkhovna Rada, which based itself on the 2000 constitutional referendum, was choked off by a conflict within the center-right majority and ended up in its collapse and the dismissal of the Yushchenko Government in early 2001. The struggle over who would take over after Kuchma in anticipation of the 2004 election began in earnest. Ukraine’s political elite were not prepared for a radical change in the balance of power simply because it wasn’t certain whose hands it would be in next. Thus, the next set of changes to the country’s Basic Law became possible only when the next threat of all-out war arose—during the Orange Revolution.

The Law amending the Constitution that was adopted on December 8, 2004 was intended to unbalance the government in order to weaken the influence of the new president. It managed to pass with 402 votes out of 450 only because of the fear that one of the candidates was prepared to take over using force. When it came into force on January 1, 2006, the altered Constitution led almost immediately to a political crisis because of a vote of non-confidence in the Government appointed by the president.

The transition to a parliamentary-presidential model took place, in which the Head of State lost some of the main leverage over the executive, which now became the domain of the Cabinet of Ministers, and influence over the formation of the Cabinet, with the exception of the ministers of defense and foreign affairs. The Cabinet was formed from a coalition of factions in the Rada and was answerable to it.

At the same time, the president continued to have powerful options for blocking any actions of the legislature and Cabinet with which he disagreed: veto power over Rada decisions if fewer than 301 deputies voted for it; the right to stop acts of the Cabinet of Ministers; and an unclear separation of powers in terms of forming and running local state administrations. Moreover, this entire arsenal was effectively used in a series of power struggles in the triangle formed by the legislature, Government and President over 2006-2009: first between Yushchenko and Yanukovych in 2006-7, and then between Yushchenko and Tymoshenko in 2008-9.

The result was that this period went down in Ukraine’s history as wasted on constant tugs-o-war rather than developing the country. President Yushchenko used whatever leverage he had, forcing early elections in 2007 and attempting to do so again in the fall of 2008, rather than learning from Kuchma’s tactics how to force the necessary changes to the Constitution to remove the cause of these conflicts.

The Yanukovych regime came up with its own way to escape the situation in 2010 that, in his typically authoritarian approach, corrupted, co-opted and reorganized all the branches of power under himself. This included the unconstitutional formation of a majority in the Verkhovna Rada and the subsequent appointment of the Azarov Government in March, getting the Constitutional Court to declare null and void its constitutional reform of December 2004 in September 2010, using administrative leverage to force all local councils to be subordinated to the president, paying off or threatening deputies in the fall of 2010, and taking over the judiciary.

However, the result of this usurpation of power and willful use of authority by Yanukovych led to the Euromaidan Revolution and the restoration of the constitutional reforms of 2004, with the inclusion of technical changes to it in 2011 and 2013 regarding the terms of office for government agencies and local government agencies, and of the Accounting Chamber.

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Working to fix the system?

The new president, Petro Poroshenko, assured Ukrainians from the start of his term that he would honor and uphold the parliamentary-presidential model and planned to use other sources of leverage on various government bodies (see The Fine Art of Compromise at The amendments to the Constitution that he has initiated do not offer the president any more powers, but strengthen the independence and effectiveness of the judiciary and local governments.

First of all, this is the Bill “Amending the Constitution of Ukraine (regarding the judiciary),” which was passed in the Rada on June 2, 2016. This law reduces the influence of the legislature and the president on the judicial system and the Higher Council of the Judiciary, which is based on the current Higher Council of Justice, and expands the Council’s powers. Other amendments to the Constitution affect the prosecutorial system, among others, removing the Verkhovna Rada’s right to vote non-confidence against the Prosecutor General.

These changes supposedly will reduce corruption and strengthen the sense of responsibility of judges for wrongdoings. However, in a system where corruption is nigh total and very deeply entrenched among judges, these changes actually risk turning Ukraine’s judiciary into a closed, untouchable corporation whose members are engaged in mutual hand washing, which means that they will be primarily independent from responsibility for any illegal actions. The problem is that now, to dismiss judges or take them to court for even the most obvious crimes will be impossible without the agreement of members of the judiciary corporation, who will have an absolute majority on the Higher Council of Justice.

The constitutional amendments affecting local government passed first reading in August 2015 but have become hostage to provisions demanded from outside to provide “special status” for the counties of Luhansk and Donetsk Oblasts that are currently occupied by Russia, known as ORDiLO. This has put a brake on the passing of the main body of changes, which affect the formation of self-sufficient communities and eliminate their dependence on the appointment of heads of local state administrations (MDAs) by the Cabinet on recommendation from the president, and the passing of the main authority to ensure that residents can live normally and responsibility for this on local governments.

Another lingering problem is the consolidation of administrative territorial units. Between the 1978 soviet Constitution and the current Basic law, an absurd fixation with a complete list with the exact names of all 24 oblasts. If counties are consolidated, a number of oblasts will no longer need to exist: they will end up with 3-4 counties, so maintaining a coordinating superstructure over these counties in the form of the current oblast administrations will make no sense. This means that the Constitution will have to also be amended to reduce their number, change their boundaries, and rename them in those cases where the oblast center has been renamed in order to complete the reform of the system of local government.

The opposition is critical of the new institution of prefects who will be appointed by the president and be responsible for overseeing that local government bodies adhere to current legislation, although this does not in any way extend the powers of the president. The president currently has far more influence at the local level through MDAs than what prefects are likely to provide. In fact, dragging out local government reforms actually looks convenient for the president, politically speaking. Whereas he controls power at the central level and in some local councils, he could lose some of this power over local councils if his ratings fall and they face re-election with the conclusion of local government reform.

The conundrum of social guarantees

A more serious problem are the provisions regarding free healthcare and free education at state institutions that Ukraine inherited from the soviet Constitution, Arts. 49 and 53, and the guarantee that all pensioners will receive a benefit that is no less than the subsistence minimum, Art. 46. These provisions are no longer appropriate to market realities but according to Art. 173 of the current Constitution, they cannot be changed. The only way to resolve this problem is to approve a new Constitution or a political, legal decision to change this article—which could then be challenged in the Constitutional Court of Ukraine at any time.

Meanwhile, the nominally “guaranteed” free healthcare and education—this from K-11 through tec-voc school and university—at public institutions will lead to their further steep decline through progressive underfunding in Ukrainian realm. A similar situation arises with Art. 46, which provides for “pensions and other social benefits and assistance that are the main source of living for the individual to be no less than the subsistence minimum established by law.” The consequences of maintaining this norm are only two possible ones and they are identically destructive for the social security system. The first is progressive social injustice when the level of state assistance to those who never contributed is hardly different from the benefits provided to those who conscientiously contributed over decades, which is a disincentive to contribute to such social funds. The second is progressive but arbitrary reduction in the subsistence minimum by the government until it ceases to serve its intended function as a social standard.

Translated by Lidia Wolanskyj

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