As the head of state and acting on its behalf, the president is, according to Article 102 of the Constitution of Ukraine, the guarantor of Ukraine’s political sovereignty and territorial integrity, observance of the Constitution, and human and civil rights and liberties. These components of the president’s constitutional and legal status determine his role in society and state and, objectively, do not need to be revised.
By Mykola ONISHCHUK
There can be no prospects for Ukraine’s evolutionary development unless the provisions of the current Fundamental Law are reconsidered and qualitatively new constitutional foundations are laid for the construction of a democratic, social, and rule-of-law state and a harmonious civil society in Ukraine. This calls for constitutional reform in Ukraine.
However, the need for this reform by no means cancels out the achievements and importance of the current Constitution of Ukraine. It should be noted that the 1996 Constitution could not have been different. We had no experience of national state building, and in any case our Fundamental Law outdistanced social development at that particular moment. Meanwhile, the adoption of the well-known Law No. 2222 “On Introducing Amendments to the Constitution of Ukraine” averted a serious political and legal crisis in the state and staved off a bloody scenario in 2004. But when all the clauses of Law No. 2222 came into force in 2006, serious shortcomings in the updated Fundamental Law were revealed. Confirmation of this was the constitutional crisis of 2007.
Finally, the political structure of a civil society, which logically followed the constitutional processes of 2004-08, the gradual establishment of rule-of-law principles, and the further development of democratic institutions in Ukraine brought about a situation where social relations, which are regulated by the current Constitution of Ukraine, began to surpass its normative content. While retaining its legal inertia, the current Fundamental Law gradually stopped meeting high social challenges and expectations that the processes of national state building and lawmaking would be stipulated.
In addition, a crucial need has emerged in society to carry out a series of legal reforms that have mostly been a matter of scholarly debate in the past 15 years of Ukraine’s independence, but have failed to materialize in the form of laws. The reforms in question concern public administration, administrative and territorial issues, the law and the judiciary, as well as local self-government in Ukraine. Procrastination or compromises in this sphere are hindering the development of the Ukrainian state, causing it to lag behind the European Union states, and engendering legal nihilism in the society and its disillusionment in Ukraine’s European future.
At the same time, it would be of little use to carry out these legal reforms without implementing constitutional reform in Ukraine, which would allow for the qualitative updating of our state’s Fundamental Law. In this sense, the legal position of the President of Ukraine, who issued Decree No. 1294 on Dec. 27, 2007, creating the National Constitutional Council, is completely logical.
As of today, academics and various political parties have publicized several concepts of a revised Constitution of Ukraine, which call for improvements to the organization and functioning of the government. The debate essentially boils down to which political regime, i.e., the constitutionally-regulated type of relations among the branches of power, is best suited to Ukraine. There are calls for switching from a mixed form of government to a purely presidential or parliamentary republic.
Leaving aside a detailed analysis of these concepts, I would like to note the following. Any constitutional expert knows that, out of all the above-mentioned types of constitutional-pluralistic regimes, the semi-presidential or mixed one is the most vulnerable, but at the same time this type of regime is typical of countries in transition from totalitarianism to democracy because it is a reliable safeguard against the return of autocratic forms of rule. According to doctrinal sources, presidential, and even more so parliamentary, republics are very susceptible to the political culture of the populace. They can only exist and work effectively in countries with well-established democratic traditions, where public awareness and political practice uphold the principles of rule of law and economic and political pluralism, and which obey the rules of parliamentarianism and have established a genuine multiparty system. Otherwise, this kind of republic very soon turns into the dictatorship of, say, a parliamentary party or its leader.
While I remain a staunch supporter of the mixed form of government, and considering that Ukraine has not yet exhausted the potential of a semi-presidential republic, and the state and civil society are still rather far from democratic ideals and European values, I would like to dwell on the key provisions of the constitutional model that we have created. This is a fundamentally new constitutional model of a presidency that rests on the common foundations of classical European constitutionalism now being developed in current constitutional state- building concepts of the European community.
The doctrine in question is based on three original ideas that, first of all, call for modernizing the system of checks and balances among the branches of power; second, unifying the executive branch, which is still being formed by parliament as a result of the national elections; and, third, developing people power in Ukraine.
The improvement of the system of checks and balances assumes special importance in the doctrine as an objective requirement, with due account of the political immaturity of Ukrainian democracy, absence of a direct relationship between the interests of individuals, the nation, the state, corporate values, and the goals of political parties, as well as the weak impact of the civil society on government institutions. This idea is being implemented by way of further developing the institution of the presidency, establishing a Senate (the Ukrainian parliament’s upper house), and disuniting the sources of the formation of the main branches of power, especially the judicial one.
At the same time, a nationally- elected president is supposed to be the key element in the system of checks and balances because s/he will be vested with or retain the following powers: to dissolve the National Assembly (lower house of parliament) ahead of time for political reasons; overturn cabinet decisions on national security, defense, and foreign policy matters; veto laws passed by parliament; appoint judges to an indefinite term, dismiss them (on the advice of the Higher Council of Justice), and advise parliament on the appointment of all Constitutional Court justices; appoint (with the consent of parliament’s upper house) and dismiss all officials who perform supervisory, controlling, regulatory, independent, and special functions.
The second goal — the unity and integrity of the executive branch as a condition for efficient political management by the forces that have won the national elections — is to be achieved by choosing a single source for the formation of the entire cabinet without exception; withdrawing local administrations from the system of executive power and turning them into bodies (prefectures) that represent the president in the regions and perform supervisory functions (compliance with the law by executive bodies); and abolishing the institution of suspending cabinet acts.
The third idea — the development of people power and improvement of the forms of direct democracy — is to be implemented by the introduction of institutions of national legislative initiative and people’s veto, the granting of the right of constitutional address to individuals, and the wide-scale use of democratic referendums, especially to resolve problems of local importance.
These doctrinal ideas and provisions are part of the Concept of the Systemic Renewal of the Constitutional Regulation of Social Relations in Ukraine, which was presented to the general public on April 23, 2008. This concept is supposed to lay the theoretical and methodological groundwork for a new version of the Constitution of Ukraine.
While sharing the views of those statesmen, public figures, politicians, and academics who believe it is important for the ongoing constitutional and legal reforms in Ukraine to secure improvements to the system of individual rights and freedoms and form viable institutions of direct democracy, I nevertheless consider it necessary to focus on improving public administration mechanisms in the new Constitution of Ukraine. According to the well-known US philosopher, sociologist, and futurologist Francis Fukuyama, “the creation of new government institutions and the strengthening of existing ones is one of the most important issues for the world community” (Francis Fukuyama, State-Building: Governance and World Order in the 21st Century (New York: Cornell University Press, 2004).
The comprehensive modernization of the government mechanism in Ukraine and the principles of its relationship with local self- government calls for an updated constitutional and legal status of government bodies in Ukraine and bringing the system of checks and balances among the branches of power in line with European constitutional practice. Certain processes are supposed to effect major changes in the chapters of the Fundamental Law, which regulate the legal status of the Verkhovna Rada, the president, the Cabinet of Ministers, and other government bodies.
In particular, what should undergo essential changes in the chapter dealing with the Verkhovna Rada of Ukraine is the procedure of nominating the candidature of the prime minister and forming the cabinet. It is also considered advisable to remove the constitutional clauses that provide for the wholly political practice of forming a parliamentary coalition. It is suggested, instead, that the Constitution of Ukraine should enshrine the rights of the parliamentary minority as far as the Verkhovna Rada’s organization and functioning are concerned, first of all, in exercising parliamentary control over the government’s performance.
An important direction in improving the Verkhovna Rada’s constitutional and legal status is the creation of a hierarchy of legislative acts. Such a clause would thwart various law-based disputes that today are behind the numerous political and legal conflicts.
It is also advisable to put into national constitutional practice the institution of interpellation, i.e., the process by which a certain number of Ukrainian MPs call the Cabinet of Ministers to account. Today, interpellation is a classic form of parliamentary control over the government, which increases the political responsibility of the latter. At the same time, it would be reasonable to remove the clause about parliamentary queries to the President of Ukraine because if the head of state is stripped of executive powers, his/her performance cannot be subject to parliamentary control.
The constitutional and legal status of a Member of Parliament also requires further improvement, also by way of abolishing the institution of imperative mandate. The current Fundamental Law’s provisions on parliamentary immunity should also be optimized. With due account of the positive constitutional experience of EU member states and the recommendations of the Venice Commission, it would be good to limit parliamentary immunity with a constitutional demand that the Verkhovna Rada agree to the detention or arrest of a member of the Ukrainian parliament.
However, the above-mentioned constitutional innovations alone will not contribute to improving the quality of Ukrainian parliamentarianism. What could help achieve this goal is the introduction of institutions of bicameralism and consignature into the text of the Constitution of Ukraine, which in turn necessitates the application of a different electoral system that would allow not only political parties but also the political will and the legitimate interests of territorial communities and regional elites to be represented in parliament.
Bicameral parliaments have logically resulted from the application of the doctrine of classic European constitutionalism. While bicameral parliaments reflected social and — above all — class-related, compromises between the feudal aristocracy and the emerging bourgeoisie in the 18th century, and the features of a federal state system in the 20th century, the existence of bicameral parliaments in the 21st century usually stems from the necessity to improve their legislative activity and optimize the system of checks and balances among the various branches of power. For example, bicameral parliaments effectively function in such EU countries as the UK, Belgium, Ireland, Spain, Italy, the Netherlands, Germany, Poland, France, etc.
The political and legal realities of today bear out the advantages of fixing the bicameral model of parliamentarianism in the updated law. The existing system of parliamentary member selection according to closed electoral lists of political parties and blocs calls into question the implementation of the principles of representative democracy in the Ukrainian parliament, thus denying national parliamentary representation to the interests of territorial communities. A convincing illustration of this is the performance of the Verkhovna Rada of the 5th and 6th convocations.
It is suggested that an upper house of parliament, which may be called a Senate by force of historical traditions, be formed on the basis of the first-past-the-post electoral system. The number of members in this chamber, to be determined with due account of the features of Ukraine’s administrative and territorial division and the number of territorial communities in different regions of Ukraine, could range from 70 to 90. The Verkhovna Rada’s lower house (National Assembly) should be formed on the basis of the proportional representation system and express the interests of ordinary people via political parties and blocs in the legislative body. The number of members will depend on the functions with which this chamber has been vested and may reach 300.
Bicameralism can be introduced not only in order to improve the principles and procedure of forming the Verkhovna Rada or to increase the quality of the parliamentary body. A bicameral parliament should overhaul the mechanism of governance in Ukraine and optimize the existing system of checks and balances among the legislative, executive, and judicial branches of power.
The lower house of the Verkhovna Rada is supposed to ensure that the Cabinet of Ministers is formed on the basis of party representation. The leader of the political force that has won the lower house elections should form the government on the president’s instructions. Failure to do so within the prescribed period would allow the president to entrust the formation of the cabinet to the political party or bloc that came second in the parliamentary race. Should even these forces fail to rise to the occasion, the president would then instruct a caretaker prime minister to form a cabinet. In other words, it is necessary to institutionalize consignature in Ukraine. A government that is formed by the National Assembly coalition is politically answerable to the president and the Verkhovna Rada, and is subject to the control of national assemblies.
The Verkhovna Rada’s upper house not only performs legislative functions, but also gives its consent to the presidential appointment of the heads of independent supervisory, regulatory, and special-purpose agencies, as well as staff appointments to a number of offices (the Prosecutor-General; the head of the Security Service of Ukraine, the heads of the Antimonopoly Committee of Ukraine, the staff of the Board of the National Bank of Ukraine, national regulatory commissions (National Telecommunications Regulatory Commission, National Energy Regulatory Commission, etc.) as well as top appointments to the armed forces, and intelligence and special investigative bodies (Anti-Corruption Bureau), which are accountable to the president and subject to the Senate’s control.
Improving the Fundamental Law will help resolve not only the Verkhovna Rada’s organizational problems but also a number of others that are connected with parliament’s performance. It is about improving the professional competence of parliament and withdrawing parliamentarians from bodies that have nothing to do with legislative activity, such as the Higher Council of Justice, the Board of the National Bank of Ukraine, etc. After all, the failure of the MPs to make a concerted effort will only weaken the main purpose of parliament in a state — to draft and pass laws.
Some staff-appointment powers of the Verkhovna Rada also look dubious, for example, the appointment of judges to an indefinite term. After the constitutional changes of 2004, when the Verkhovna Rada was vested with powers to form the government, i.e., the executive branch, parliament in fact became the only source of the formation of different branches of power, which contradicts the fundamental principle of government organization in a democratic society — division into the legislative, executive, and judicial branches.
To increase parliament’s responsibility, one should provide for the possibility to dissolve it ahead of time for political reasons through a procedure laid down in the Fundamental Law.
What also needs to be properly assessed and reconsidered is the constitutional and legal status of the President of Ukraine, the nationally elected head of state. Ukraine’s modern constitutional history shows that the president has limited possibilities to perform the functions bestowed on him by the Fundamental Law.
As the head of state and acting on its behalf, the president is, according to Article 102 of the Constitution of Ukraine, the guarantor of Ukraine’s political sovereignty and territorial integrity, observance of the Constitution, and human and civil rights and liberties. These components of the president’s constitutional and legal status determine his role in society and state and, objectively, do not need to be revised.
At the same time, the central idea of the Fundamental Law should be the elimination of the current dualism in the executive power in Ukraine, where the president is vested with certain powers in the executive branch. The executive branch should be single and integral by its very nature, which in turn requires essential changes to the procedure of forming the cabinet and other executive bodies, and establishing new legal imperatives in the relationship between the executive branch, on the one hand, and the president and parliament, on the other.
As mentioned above, the president’s functions with respect to the formation of a cabinet should be reorganized by establishing the institution of consignature. This would allow the creation of a politically homogeneous Cabinet of Ministers answerable to the president and parliament.
It should be noted that since 2004 the appointment of foreign and defense ministers by the president has generally had a negative effect on the performance of the executive branch. At the same time, taking into account the discrete nature of the head of state’s foreign policy and defense functions, it would be logical to vest the President of Ukraine with the right to decline the above-mentioned ministers’ candidatures when a cabinet is being formed.
Modern constitutional doctrine also calls for strengthening the institution of the presidency by embedding in the updated Fundamental Law the president’s right to repeal cabinet acts on foreign policy and, on the advice of the National Security and Defense Council, national security and defense matters. At the same time, it is proposed that the existing constitutional practice, where the president can suspend cabinet decisions and refer matters to the Constitutional Court, be dropped.
The revision of the president’s governing functions calls for strengthening the guarantees that he/she will properly carry out representative and supervisory functions. The head of state should be granted the right to dissolve the Verkhovna Rada (National Assembly) for political reasons, for example, in the event of a protracted parliamentary crisis, or when parliament has made political decisions that contravene the constitutional foundations of the state’s domestic and foreign policies, etc.
An important element of the president’s representative and supervisory functions should be a provision in the updated Constitution of Ukraine that the president is authorized to appoint and dismiss from office, in consultation with the upper house of parliament, the heads of supervisory, independent and regulatory bodies.
As the guarantor of human and civil rights and freedoms, the President of Ukraine should be vested with powers sufficient for the performance of this function. It would be correct in this connection to grant the president the right to appoint judges of general jurisdiction courts without a time limit, while retaining his right to establish courts in an order stipulated by law.
The same system of coordinates comprises the president’s right to appoint and dismiss, in consultation with the Senate, the Prosecutor- General of Ukraine. Moreover, the holder of this office should be stripped of the duty to oversee the observance of human and civil rights and freedoms and the upholding of the law by central and local government bodies and their officials, as well as to conduct pretrial investigations.
The experience of state building and formulating laws in 2006-08 has brought to light the necessity of improving the mechanism of forming the Constitutional Court. For example, it would be good to vest the president, as the guarantor of the Constitution, with the right to advise the Verkhovna Rada on the appointment of all Constitutional Court judges. Their appointment should also be the result of a qualified vote for their candidatures in both houses of parliament.
It is also necessary to withdraw the existing powers of the Constitutional Court with respect to the official interpretation of laws and, at the same time, supplement them with powers to examine the constitutional complaints of Ukrainian citizens, all international treaties that are endorsable by parliament, and rule whether the questions put to a national referendum comply with the Constitution of Ukraine.
The adoption of a new constitution is certain to raise the question of the juridical force and order of enforcing the Constitutional Court acts that have been passed since 1996. It is therefore advisable to spotlight this problem in a relevant section of the updated constitution.
The Fundamental Law should also provide for effective mechanisms that would ensure local self- government. In spite of repeated calls to reform local self-government, the state’s policy in this sphere has in fact remained unchanged: territorial communities do not have any legal mechanisms today to put into practice the functions and powers they were vested with as long ago as 1996 by Chapter 9 of the Constitution. First of all, territorial communities should be enlarged, and the material and financial groundwork of local governments must be improved. For instance, territorial communities should be given an opportunity to receive direct budgetary transfers, the right to form local budgets at the expense of the real estate tax, etc.
Unfortunately, executive dualism still exists not only on the national level but also locally. Executive power in the regions is being exercised by local state administrations, territorial branches of the central authorities, and executive committees of local councils, which situation triggers all kinds of disputes and conflicts among these entities and the reciprocal duplication of executive functions. In addition, the dual subordination of local administrations to the president and the Cabinet of Ministers is in fact slowing down their work, especially when the two power institutions represent different political forces or compete with one another.
It would be a good idea, therefore, to redistribute the functions of the local authorities and the central authorities’ territorial branches, as well as the executive committees of local councils. The further development of the president’s representative functions according to the principles of presidentialism calls for the creation of prefectures on the basis of local administrations, which would perform representative and supervisory functions of the head of state in the regions.
Prefectures should be established in every administrative and territorial unit under Article 133, Part 2, of the Constitution of Ukraine. Prefects are to be appointed and dismissed by the President of Ukraine. Subordinated and accountable to the head of state, they will have the right to form prefectures in the established order and within budgetary limits. At the level of districts, cities, and urban neighborhoods, it is advisable to appoint independent prefects that would be vested with the same functions and powers as prefects in general. Thus, the withdrawal of local government from the jurisdiction of local state administrations would resolve numerous acute problems in the field of public administration.
The above-mentioned provisions of the concept of modernizing the key foundations of public administration and local government in the new version of the Constitution of Ukraine may not be perfect, but they are devoid of subjectivistic, ideologized, and even opportunistic elements or the desire to protect the interests of only part of the population or a certain political group. Therefore, we expect that they will be the subject of broader debates.
Mykola ONISHCHUK is Ukraine’s justice minister.
