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Ukraine

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Constitutional Politics in Central and Eastern Europe

Part of the book series: Vergleichende Politikwissenschaft ((VGPO))

Abstract

This chapter discusses constitutional developments in Ukraine, a country that since its independence in 1991 has struggled with crucial constitutional questions, notably on how to balance the offices of the president, prime minister and chairman of parliament. A mixed system with a focus on presidential powers was put in place in 1996, but this did not significantly stabilize institutional relationships. The results so far have been three rounds of constitutional turns (the fourth is in the making). Nevertheless, the mixed system enshrined in the document continues to have serious shortcomings, which is one of the reasons why constitutional discussions have not ceased in Ukraine.

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Notes

  1. 1.

    For this reason the chapter will not cover theories such as the transition paradigm or categorize the Ukrainian democratic system. See for example Kubicek (1994, 2001), Kuzio (1997, 2005, 2010) or Riabchuk (2012) for works on the nature of Ukraine’s democracy.

  2. 2.

    The chapter will also not discuss other Russian efforts to influence Ukrainian constitutional politics since the country’s independence and their political implications, for instance the question why a special status was granted for Crimea, or the issue of blackmailing/corruption when it came to constitutional issues. As for external western influence on constitutional developments, the chapter will exclusively consider the Venice Commission.

  3. 3.

    See the Draft Constitution of Ukraine, May 27, 1993; including a substantial comment on the May 1993 version—the fourth draft (Draft Constitution 1994).

  4. 4.

    “Plusieurs articles donnent à penser que les rédacteurs n’adhèrent pas entièrement aux principes de la démocratie représentative” (Venice Commission 1993).

  5. 5.

    In autumn 1994, a state constitutional commission had replaced the former parliamentarian one. Leonid Kučma and Oleksandr Moroz, the new speaker of the parliament, co-chaired the body. Moroz also blocked attempts from Kučma to concentrate power in the future president’s hands.

  6. 6.

    See Protsyk (2005, 27f.) on Kučma’s use of decrees and their relevance for the constitution-making process and for more on Kučma’s presidency, see also Wilson (1997, 69f.).

  7. 7.

    See Wolczuk (2001, 196f.) on the contradictory norms of the Dohovir, the various commissions and their drafts, and the debates the latter provoked.

  8. 8.

    The constitutional commission, which in the meantime had delegated the process to a smaller working group of ten experts, failed to present a substantively different document in November 1995, as there was no consensus on how to redraft the 1995 Constitutional Agreement.

  9. 9.

    Moroz abstained from voting (Kolomayets 1996a).

  10. 10.

    See Wolczuk (2001, 205f.) in detail on the constitution-making process in 1995 and 1996.

  11. 11.

    Ukraine had been eager to pass the document before the final round of the 1996 Russian elections to clearly underline the country’s sovereignty and that Crimea was a part of Ukraine. Still, Russia occupied Crimea from February 27, 2014 onward and incorporated it in retrospect into the Russian Federation on March 18, 2014 after a referendum. The Venice Commission declared it being not in line with the Ukrainian Constitution (Venice Commission 2014).

  12. 12.

    The Venice Commission subsequently criticized a separation of powers was not “consistently maintained throughout the text” (Venice Commission 1996); see also Futey (1996, 31f.) and Kuzio (1999, 28).

  13. 13.

    A rare example took place in 1999 when Prime Minister Valeriy Pustovojtenko was not re-confirmed (three votes missing). Moreover, the president dismissed prime ministers unilaterally up until the 2004 reform—Pavlo Lazarenko in July 1997, Viktor Juščenko in May 2001, and Anatoliy Kinah in November 2002.

  14. 14.

    The 1999 presidential elections brought 56 % for Kučma and 38 % for the Communist candidate Symonenko in the final run-off. See also Birch, Wilson (1999) on the 1998 parliamentary elections in which the Communist Party (KPU) came out strongest with more than 25 %.

  15. 15.

    Åslund (2009, 129) provides details on the desolate economic situation, especially in the context of the 1998 Russian financial crisis.

  16. 16.

    See Article 106.6 of the 1996 Ukrainian Constitution: “The President of Ukraine shall: […] appoint the All-Ukrainian referendum regarding amendments to the Constitution of Ukraine in accordance with Article 156 of this Constitution, and proclaim the All-Ukrainian referendum initiated through the popular initiative.” And Article 156: “A draft law on making amendments to Title I General Principles, Title III Elections, Referendum, and Title XIII Making Amendments to the Constitution of Ukraine, shall be submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by not less than two-thirds of the constitutional membership of the Verkhovna Rada of Ukraine, provided that it is adopted by at least two-thirds of the constitutional members of the Verkhovna Rada of Ukraine, be approved by an All-Ukrainian referendum called by the President of Ukraine […].” (Ukraine 1996). The outdated 1991 referendum law had been adapted slightly to the requirements of the 1996 Constitution.

  17. 17.

    The court in general deemed his undertaking not in line with the Ukrainian Constitution (Constitutional Court of Ukraine 2000).

  18. 18.

    The presidential alliance “For a United Ukraine” (Za Jedynu Ukrajinu) only came third, after the second-placed Communist Party with 20 %. On the elections and their consequences, see Kuzio (2003) or Birch (2003).

  19. 19.

    The 18 judges were appointed for 9 years (equal shares by president, parliament and the High Council of Judges) without the right of reappointment; the appointment came into effect only after oath of the potential judge in parliament (Venice Commission 2011). On an assessment of the court see also Wolczuk (2002).

  20. 20.

    In October 2000, the Venice Commission stated that a referendum cannot alter the Constitution (Venice Commission 2000b).

  21. 21.

    See Art. 85 on the extended powers of the Ukrainian parliament, Art. 116 on the competences of the government, and Art. 106 on the competences of the president Ukraine(2004).

  22. 22.

    See Hesli (2007) and Copsey (2008) for the consequences of the institutional battles.

  23. 23.

    The coalition and according agreements were called “PriByuT”, see Chaban and Vernygora (2010, 236), Kubicek (2009, 324f.), and Izvestija (2008).

  24. 24.

    Julija Tymošenko lost tightly with 45.47 % against 48.95 % for Janukovič, and spoke of serious electoral fraud. On the elections, see for example Herron (2010). Kuzio (2010, 208f.) analyzes the general developments in the first Janukovič period.

  25. 25.

    Article 59 on the “Rules of Procedure of the Verhovna Rada” had been altered. In its new version (March 9, 2010) it permitted individual deputies to join the deputy factions in order to elect the prime minister. Thus a procedural regulation had been used to invalidate a constitutional provision.

  26. 26.

    See The Interpreter (2014a) on February 18, 2014 and The Interpreter (2014b) on February 20, 2014—the bloodiest day of the protests when snipers atop government buildings in the city center gunned down protesters. For possible Russian involvement see Unian (2014). Investigations on the issue are ongoing.

  27. 27.

    397 deputies out of 450 had registered. Votes in favor came from 140 deputies from the Party of Regions, 89 from Batkivščyna, 40 from UDAR, 32 from the CPU, 35 from Svoboda, and 50 independents (Interfax 2014).

  28. 28.

    Jatsenjuk continued as prime minister after his newly formed party National Front won the parliamentary elections in October 2014.

  29. 29.

    For a critique see Hromadske.tv (2014).

  30. 30.

    For more critique see Rafalskyi (2015).

  31. 31.

    The situation is complicated by the so-called Minsk Agreements in which Ukraine is forced to decentralize power and to enshrine a “special status” of the Donbas in the constitution (Telegraph 2015).

  32. 32.

    Ukraine as of summer 2015 has largely managed to contain anti-democratic and Russian forces previously present in parliament with large numbers of parliamentarians, notably the Communist Party (KPU), the Social-democratic Party of Ukraine (united) (Social-demokratyčna Partija Ukrajiny (ob’jednana)—SDPU(o), the Party of Regions or the Opposition Bloc (Оpozicijnyj blok), that sabotaged legislative processes among others. At the same time, the office of the president underlies little democratic control. Those facts speak strongly in favor for a serious try on a parliamentarian system. Compare also with the chapters on Moldova and Romania.

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Authors and Affiliations

  1. Universität Fribourg, Oftringen, Switzerland

    Nicole Gallina

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  1. Nicole Gallina
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Correspondence to Nicole Gallina .

Editor information

Editors and Affiliations

  1. Institut für Sozialwissenschaften, Humboldt-Universität zu Berlin, Berlin, Berlin, Germany

    Anna Fruhstorfer

  2. Institut für Sozialwissenschaften, Humboldt-Universität zu Berlin, Berlin, Germany

    Michael Hein

Appendix: Constitutional Politics in Ukraine 1996–2014

Appendix: Constitutional Politics in Ukraine 1996–2014

Dates of amendment and implementation

Article

Constitutional subfields

Short analysis of the reform process/content

12/08/2004/

01/01/2006

Article 76, 78, 81–83, 85, 87, 89–90, 93, 98, 112–115

• Executive-legislative relations

• Law of Ukraine No. 2222 IV

• Adopted by the national parliament (final vote 402-to-21 majority without abstentions, 19 did not vote; 442 out of 450 present)

10/01/2010

Return to 1996 document

• Executive-legislative relations

• Return to 1996 Constitution

• September 30, 2010—Law of Ukraine No. 2222-IV is abolished by the Constitutional court

02/01/2011

76–77, 103, 136, 141 (Law 2952-VI)

• Elections

• Crimea

• Adopted with 310 votes in favor by the national parliament

09/19/2013

Article 98 (Law 586-VII)

• Other control/oversight agencies

• Adopted with 380 votes in favor by the national parliament

02/21/2014

Including amendments of 2011 and 2013 (Law 586-VII and 2952-VI)

 

• Law 742 VII

• Return to the constitutional document amended by Law 2222 IV

• Final vote: 386-to-0 majority with one abstention, 10 did not vote, 397 out of 450 present)

• Took effect on February 22, 2014 with 325 votes (as president Janukovič fled and did not sign the document on February 21, the parliament passed it with an according bill the next day).

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Gallina, N. (2016). Ukraine. In: Fruhstorfer, A., Hein, M. (eds) Constitutional Politics in Central and Eastern Europe. Vergleichende Politikwissenschaft. Springer VS, Wiesbaden. https://doi.org/10.1007/978-3-658-13762-5_20

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