Plan of the lecture

1. Plan of the lecture • Short historical overview of the formation of Ukrainian state in its current territory • The institutional framework: • The Ukrainian Soviet Socialist Republic: 1919-1991 • The system of the Soviets • Territorial and administrative division • The political community • The passage to independence (1989-1991) • Ukraine after the 1996 Constitution • Adoption of the constitution • Competences of the branches of power • Semi-presidential / president-parliamentary configuration of powers • Centre-periphery relations • Institutional change: the 2004 reforms • Slide change

2. Historical overview of the formation of Ukrainian state in its current territory • It would be interesting to note that Ukraine in its present borders exists as an independent state only since 1991. • Historically, it is possible to distinguish six main regions in contemporary Ukraine according to their varying experience of foreign rule and the way they became a part of Ukraine in its current borders. • Slide change • The formerHabsburg regions in the far west – southwest. After the Habsburg collapse in World War I the region was split between three countries: Poland, Czechoslovakia, and Romania. These parts were then annexed to the Soviet Union in 1944 after the fall of Germany. Although there are important historical differences among them, the fact that they have never been part of the Russian empire is probably the most outstanding feature of these regions, a feature that probably plays the most important role in political and national orientations of the populations there. • Western Volhynia – the northwestern region of Ukraine. Though long part of Poland, Volhynia was gradually taken over by the Russian empire during the partitions of Poland in the late 18th century. The western portion was given back to Poland after World War I and remained under Polish rule during the interwar period. It was then incorporated into Soviet Ukraine along with the former Habsburg lands after 1944. The post-1945 Sovietisation drive coincided with a massive exchange of population between Poland and the new Soviet territory as well as many deportations of ethnic Ukrainians to Siberia and the Far East.

3. The areas to the right of the Dnieper River were also part of Poland until Russia acquired them in the end of the 18th century. Until the end of the 19th century most of Right Bank Ukraine was owned by Polish landlords, whereas the peasantry which worked the land was mainly Ukrainian. But in 1922 they were incorporated into Soviet Ukraine when the USSR was founded. • The areas to the left of the Dnieper River and the lands to the east. This region has the greatest experience of Russian rule, having been controlled by its northern neighbour since the Treaty of Pereyaslav in 1654 (that put Ukraine under Russian protectorate). By the end of the nineteenth century, a massive industrialisation started in the eastern regions very rich with coal resources, which caused considerable immigration of workers from Russia at that time.

4. The former Ottoman lands of the Black Sea littoral. At the same time as Russia was expanding into Polish territory in the 18th century, it was also winning land from the Ottoman Empire in the southern steppe territory. This area had previously been wild and undeveloped. But it also underwent extremely rapid settlement and industrialisation during the last years of the Russian empire; the population increased seven times over the course of the 19th century as migrants streamed here to develop lots of trade links along the coast and industry inland. • Crimean peninsula is the only area in Ukraine where Russians constitute the majority of population (58%). This is explained by the fact that until 1954 the peninsula was a part of the Russian Federation and only in this year it was transferred to Ukraine. Slide change

5. The Ukrainian Soviet Socialist Republic • The Ukrainian Soviet Socialist Republic was created in December 1917. However, it was only after two unsuccessful attempts to gain control over Ukraine in 1918 and 1919, that the Third Soviet Ukrainian government was established in December 1919. • The Ukrainian SSR acted as a constitutive member of the Soviet Union in December 1922. • Like all other republics, Ukrainian sovereignty defined in the constitution was just a constitutional fiction. Moscow provided all Soviet republics with an almost identical set of administrative, economic and cultural institutions and the decision-making powers were removed from the republican institutions and given to the Communist Party of Ukraine which was an integral part of the Communist party of the Soviet Union in accordance with the principle of democratic centralism. • The nominal institutional structure of the Soviet republic consisted of a hierarchy of layers of government – the soviets of people’s deputies (rady narodnykh deputativ). • The Soviet approach deliberately discarded the separation of powers and ‘checks and balances’, as smokescreens behind which the bourgeoisie exercised unlimited power in Western countries.

6. In the Soviet Union, the ‘separation of powers’ was replaced by the principle of the ‘unity of power’: the soviets combined not only executive and legislative powers at the republican level but also state power and self-government at the local and territorial level (which was based on the so-called state theory of self-government). The Supreme Soviet, which was the peak of the hierarchy of Soviets, was the highest state body in the republic with exclusive legislative powers and the prerogative to decide on any matter within the republican jurisdiction. All the other state organs were in theory under the control of and accountable to the Supreme Council. The council of ministers was the ‘highest executive and administrative body of state powers’ and ‘responsible and accountable’ to the Supreme Council. • Indeed, Soviet parliamentarism – based on the omnipotence of the popularly elected assembly, free from any checks and balances – lent itself to rule by a single party. Although we talk about ‘parliamentarism’ here, the structure, functions and theoretical basis of the system of soviets differed diametrically from those that characterised Western parliamentary systems (unity of power, combined legislative, executive and judicial functions, deputies-nonprofessionals…). • I am giving this short description in order to show that the Soviet rule in Ukraine that lasted for seventy years has left an enduring imprint on society and it political structures. • Slide change

7. Territorial and administrative division • The Soviet Union created a highly centralised model of statehood. • I have already given you the historical transitions of the Ukrainian lands so I won’t repeat it any more and will just say that with the transfer of the Crimean Peninsula, the formation of the present day Ukraine was completed in 1954. • After 1954, the Ukrainian SSR consisted of 25 oblasts and 2 cities of republican subordination – Kyiv and Sevastopol. Oblasts were purely territorial-administrative units and did not correspond to historical regions. Oblasts were further divided into districts (raion), cities (which were further divided into raiony). Each of those units was represented in a soviet (rada). • There was no distinction between local, territorial and central government as the Soviet Union adhered to the so-called state theory of self-government (that claims that the organs of the local self-government are not distinctive but are created and regulated by the state). Therefore, in the UkrSSR the local and territorial governing bodies formed an integrated part of the state apparatus.

8. The political community • The seventy years of the Soviet rule and very strong Russification policies that took place all through the history of the Soviet Ukraine had weakened considerably the national aspect of the Ukrainian political community. This is especially felt up to now in the eastern and southern parts of the country – the parts that have experienced the longest period of the Russian/Soviet rule. • The constitutional fiction of sovereignty made Ukraine’s political community only nominally ‘national’ and fully submerged in the wider community of the Soviet People (Sovietskyi narod). • Slide change

9. The passage to independence • This was the luggage with which Ukraine has arrived at the door of the independence in 1991 and which definitely did not make this transfer easier. But even the way in which the independence so to speak ‘dawned’ on Ukraine added to the complexity of this transition. • By the mid-1980s the cultural and political integration within the USSR and, especially, Moscow was so tight that there was no automatic enthusiastic response to the reforms of Mikhail Gorbachev. By 1989 the republic was still living under the spell of Brezhnevism, and the republican elites, under the leadership of Volodymyr Shcherbytskyi (an apparatchik, strongly connected to the Moscow centre, was the first secretary of the CPU between 1972-1989) remained strongly resistant to the imperatives of perestroika. It was only in the autumn of 1989 that with the replacement of Shcherbytskyi by Volodymyr Ivashko that top-down perestroika had begun in Ukraine. Under the leadership of Ivashko the CPU permitted some pluralisation. • Click

10. It was also in that year that The Popular Movement for Perestroika in Ukraine (Rukh) was created that championed the cause of perestroika along with calls for the revival of the Ukrainian language and culture. The movement triggered an unprecedented mass political awakening and mobilisation. Yet the social base of Rukh remained limited. At the peak of its popularity, with over 600,000 members, Rukh was weakened by a regional bias in its membership, as the majority of its members were white-collar workers and ethnic Ukrainians from Western Ukraine and Kyiv, while its appeal and membership in densely populated Eastern and Southern Ukraine was limited. • Therefore, although bottom-up mobilisation could undermine the legitimacy of the Soviet regime in Ukraine, but, as it failed to include the majority of the population (unlike in the Baltic states), it could not overturn the regime, without the support of the communist republican elites. • Slide change

11. 1990-1991 • Now I would like to talk more in detail about these two years that have paved the way to Ukraine’s independence. The main events that took place in this period are: • The republican Supreme Soviet elections (March 1990) • The Declaration of Sovereignty (July 1990) • The Concept of the new Constitution (June 1991) • The Act of Independence (August 1991) • The referendum on independence (December 1991) Click • The republican elections to the Supreme Soviet held in March 1990 were, at least in some parts of Ukraine, genuinely contested. The largest organisation that emerged at that time was the Democratic Bloc that attacked the shortcomings of the Soviet system, totalitarian political practices, cultural and linguistic Russification etc. It managed to get 25 to 30% of votes in the elections and these elections were the first obvious indicator of the divisions existing in the Ukrainian society. Western Ukraine and Kyiv supported the opposition whereas the CPU retained its stronghold position in the rest of Ukraine. --Click-- • It was in this Supreme Soviet that in line with the party reshufflings Leonid Kravchuk (the head of the CPU ideology department) was nominated by the CPU as the chairman of Supreme Soviet. --Click--

12. Oppositional Democratic Bloc that formed the Narodna Rada faction in the Soviet was getting increasing influence and they have played an active and important role in the drafting of – Click -- the Declaration of Sovereignty that proclaimed ‘the state sovereignty of Ukraine to be supreme; the autonomy, totality and indivisibility of the Republic’s power within its territory, and its independence and equality in external relations’. – Click-- Besides that, the CPU’s ‘leading role’ was de-legitimised by saying that ‘no political party, social organisation or any other association or person can represent the People of Ukraine’. • However, beyond its symbolic significance, the tangible consequences of the Declaration were unclear since the UkrSSP still remained tightly integrated with the All-Union administrative machinery. – Click-- • By this time social mobilisation and protests started gaining momentum in Ukraine expressed by strikes, hunger strikes, which forced the Supreme Soviet to start working at the new constitution (until then the constitution of 1978 was in power). In June 1991 the Concept of the New Constitution was approved which was based on the provisions of the Declaration of Sovereignty.

13. --Click-- • The Supreme Soviet was also actively adopting new legislation and, among other things, the republican presidency was established which had remarkable powers ‘to suspend the action of decisions of the executive power of the USSR on the territory of the Ukrainian SSR if they contradicted the constitution and the laws of the Ukr. SSR’. • Kravchuk was especially supportive of a strong presidency, as by that time he had emerged as a leading figure in Ukraine and had this institution in mind for himself. – Click— • The decisive moment came with the coup d’état in August 1991. Once it was evident that the coup had failed on 22 August, Kravchuk abandoned the sinking ship and resigned from the CPU. On 24 August, under pressure from the Narodna Rada, the Supreme Soviet adopted the ‘Act of Independence’ subject to confirmation in a national referendum in December 1991 (that was supported by over 90% of the voters). In the same vote Leonid Kravchuk was elected as the first president of Ukraine. • --Click--

14. Ukraine after the 1996 constitution • In 1994 new presidential elections were held where Leonid Kuchma (prime minister from 1992) won –click-- • Kuchma inherited a highly dysfunctional institutional framework based on a revised version of the 1978 constitution of the Ukrainian Soviet Socialist Republic. Although the references to socialism and the leading role of the Communist Party had been removed, the document preserved the main elements of the “system of Soviets” with its “unity of power” and its lack of a separation of competencies between branches and levels of government. The constitution was frequently amended during the first years of independence in order to incorporate new institutional provisions, such as a definition of the status and powers of the president. But even with revisions the document was quite inadequate for the task of constructing a democratic state. • Agreeing on a new constitution proved to be one of the most difficult challenges for the political class of the newly independent Ukraine. • The constitution making process in Ukraine turned out to be a very long and difficult one. It was accompanied by the periods of a complete stalemate in the parliament when the main antagonism took place between the political left and right and between presidentialism and parliamentarism. • The 1994 parliamentary elections produced a highly fragmented and polarized parliament that could not agree on several critical aspects of a future constitutional framework. • Among the most controversial issues were state symbols, the status of the Russian language, property rights, the powers of the president, and the status of the Crimea. • --click--

15. Finally, on 26 June 1996 president Leonid Kuchma announced that a nation-wide referendum on the constitution would be held in September should the parliament not be able to agree on a draft. The referendum was to be on a more pro-presidential draft version of the constitution but Kuchma used this possibility enjoying greater popularity among the population than the parliament at that time. Dissolution of the parliament was a real threat should the draft be passed at the referendum. It was followed by a 23-hour marathon of frantic debates and voting in the Verkhovna Rada and finally it has achieved a necessary constitutional majority and on 28 June a draft of a constitution was adopted and the referendum called off. • The adoption of the constitution meant, among many other things, that a much-needed certainty about the country’s basic institutional setup was finally introduced into the political process. • At the same time, several highly contested constitutional provisions sowed the seeds of conflicts that would dominate the rest of Kuchma’s presidency. Of these institutional conflicts, the executive-legislative confrontation proved to be the most significant and longest-lasting. • Both president and the parliament were elected for fixed terms, and neither controlled the tenure in office of the other. Thus, stalemate was guaranteed whenever the president and the parliamentary majority had different political orientations. • --click--

16. Political institutions • What political system has Ukraine established by its long debated constitution? • --click-- • According to the Ukrainian constitution, ‘state power is exercised on the principle of its division into legislative, executive and judicial power’. • --click-- • The uni-cameral parliament is the ‘sole body of legislative power’, whereas the president is ‘the head of state’ and ‘guarantor of state sovereignty and territorial indivisibility of Ukraine’. • The parliament consists of 450 deputies; under Ukraine's election law, 225 of the Supreme Council's seats are allocated on a proportional basis to those parties that gain 4% or more of the national electoral vote; the other 225 members are elected by popular vote in single-mandate constituencies. However, a a new law has been approved by the parliament last year establishing that starting from the next elections (March 1996) all the deputies will be elected on a proportional basis. • --click-- • The cabinet of ministers is ‘the highest body in the system of bodies of executive power’. • --click-- • The judicial branch consists of courts of general and special jurisdiction as well as the Constitutional Court.

17. According to the constitution, the authority of the Parliament includes the right to: • Adopt laws and the budget of Ukraine • Approve the prime minister, as proposed by the president • Approve the programme of socio-economic development proposed by the cabinet of ministers • Determine the principles of domestic and foreign policy • Determine the organisation and activities of the agencies of the executive • Dismiss the cabinet in a no-confidence vote, although this right can be exercised only once a session and not within one year following the approval of its programme • Determine the organisation and activities of the bodies within the executive powers • Hear annual and special messages of the president of Ukraine on the domestic and foreign situation of Ukraine • Impeach the president in the event of treason or some other crime • Slide change

18. The president was granted an extensive amount of legislative and non-legislative power: • Appoint the prime minister with the agreement of the Supreme Council • Appoint members of the cabinet of ministers and heads of central bodies of executive power proposed by the prime minister (without parliamentary consent) • Appoint one third of the Constitutional Court, the Council of the National Bank, as well as the Prosecutor General, and other central executive organs (in most cases with parliamentary consent); • Create, restructure and abolish the executive agencies of the state • Revoke acts of the cabinet of ministers and the Council of Ministers of the Autonomous Republic of Crimea • Dismiss the prime minister and ministers • Initiate legislation • Have presidential draft laws considered by parliament as a priority • Veto parliamentary bills, although the veto can be overridden by a qualified majority of two thirds of the parliament • Issue decrees • Dissolve parliament if it cannot convene for thirty days during a plenary session • Kuchma’s presidency was characterised by extensive use of the veto and decree issuing powers – strong combination.

19. The cabinet of ministers was allocated powers to: • Ensure state sovereignty and the economic independence of Ukraine • Implement domestic and foreign policy • Carry out execution of the constitution, the laws of Ukraine and the acts of the president • Ensure the implementation of the state policies, such as fiscal, investment, employment, education, etc. • Draft the state budget • Implement the state budget and submit a report to the Parliament • Issue resolutions and orders, within the limits of its competence, which are mandatory for the execution on the territory of Ukraine. • Slide change

20. The fact that the constitution made the cabinet accountable to both the president and parliament, and, at the same time, granted substantial executive powers to the president, meant that a dual executive system or semi-presidential–click--constitutional model was strengthened in Ukraine (according to the classical Duverger definition: • (1) the president of the republic is elected by universal suffrage; • (2) he possesses considerable executive powers; • (3) there is also a prime minister and ministers who possess executive and governmental powers and can stay in office only if the parliament does not show its opposition to them. • --Click-- • Such configuration of powers between state institutions can be classified as semi-presidential. • Matthew Shugart and John Carey make a distinction between president-parliamentary and premier-presidential regimes---Click--- • In Ukraine the constitution created a president-parliamentary system • This system is characterised by two key features: • asymmetrical control over the cabinet (the president nominates and recalls it but parliament can take a vote of no-confidence in it) • and law making authority of the president.

21. The new arrangement created legal basis for an inherent conflict in Ukrainian politics. Or, we can rather speak of two types of conflicts: • --Click-- • Executive – legislative confrontation between the president and parliament caused by overlapping authority between the president and parliament. For example, the requirement that a vote of no-confidence in the Cabinet entails its resignation, but carries no implications for the life of the parliament, opens the door to permanently conflictual situations between the parliament and the president (since the president can appoint the cabinet without the consent of the parliament). • And • --Click-- • Intra-executive competition between the president and prime minister due to the fact that the cabinet is accountable to both the president and parliament

22. Centre-periphery relations • The Soviet-era territorial-administrative division that I’ve described above was taken over into the new constitution. –Click— • There is a rigid vertical executive pyramid of the ‘regional state administration’. ---Click--- • The heads of the local state administration (oblast and district level) are appointed by the president on the recommendation of the prime minister and are subordinated to the heads of administration at higher levels. ---Click--- • In general, centre-periphery relations are not clarified in Ukraine; there’s no clear description of the legal status of sub-national institutions which is a key to effective local/regional autonomy and decentralisation. • The need to compromise (between the different regions with different aspirations and against the centrifugal forces) resulted in vague provisions.

23. The only region in Ukraine which was granted territorial autonomy was Cirmea. It is defined as an Autonomous Republic of Crimea. This resulted in an asymmetrical regionalism: regionalism that is inherent to Ukraine but is not defined legally with only one area enjoying some autonomy. Ukraine – state of regions but only one region (the Autonomous Republic of Crimea - ARC) enjoys territorial autonomy ---Click--- • ARC: • Has its own constitution, parliament and a Council of Ministers • But is an inseparable part of Ukraine • Its constitution has to be approved by the Ukrainian Parliament • The prime minister of the ARC can be appointed or dismissed only with the consent of the president of Ukraine • The parliament of the ARC can issue ‘normative and legal acts’ in specified areas that have to comply with the Constitution of Ukraine AND with laws passed by the Ukrainian Parliament • The court system of the ARC belongs to a unified system of courts of Ukraine • The ARC has no right to raise taxes • Slide change

24. In 2006 both new election law and new constitutional arrangements will come into force. How did this come into being? Still in August 2002 president Kuchma launched an initiative to change the constitution, which would transform Ukraine’s constitutional framework along lines more compatible with European standards of parliamentary practice. Roughly put, the main changes introduced by the proposed constitutional reform would weaken the presidential powers in Ukraine and give more competencies to parliament and the prime minister. Why did Kuchma, who had always been a strong proponent of a powerful president (and who used his powers excessively) suddenly came up with such a dramatic change in the system that would put Ukraine closer to a premier-presidential or parliamentary model? • The explanation given to the broad public held that in line with the integration into the European structures (which Kuchma always declared to be a strategic goal for Ukraine), reforming the political system according to the norms and principles of European parliamentary democracies was an important idea. • However, a more pragmatic look at the situation at that moment makes it clear that the president came up with this initiative only as the end of his second term approached and he felt that he would be unable to ensure the succession of a candidate who would continue his policies and guarantee his personal safety after his departure from the office. Thus, Kuchma opted for the strategy of weakening the presidency. • We can say that for Yushchenko to run for a strong presidency, and win a weak one, is obviously unfair to him. However, it is probably better for Ukraine in the long term.

25. On December 8 2004 the constitutional amendments were passed by parliament and signed by president Kuchma. This happened as a part of a compromise (before opposition forces opposed the reform) to receive the support of the parliament during the second round of the last presidential elections. • What will the main changes be: • Parliament is the main beneficiary of the constitutional reform. The new competencies will be: • will have the power to approve most – but not all (except ministers of defence and foreign affairs) – of the ministers, and to dismiss them individually or collectively • It will be given the exclusive right to dismiss the cabinet • Its term in office was extended from four to five years • The speaker of parliament was designated to assume the duties of the president should the incumbent leave office before the end of his term.

26. Constitutional reform also gave more authority to the cabinet. • It is now more independent of the president in respect to its continuation on office and its control over ministries and central government agencies. • Has now authority to create, reorganize, or eliminate government bodies, and to appoint and dismiss the heads of government agencies who are not members of the cabinet. • The term of office of the cabinet of ministers has been changed to coincide with the parliamentary rather than the presidential elections. When a new parliament is elected, a new cabinet will be named, strengthening the influence of parliament over the cabinet. • Although the president will formally retain the power to nominate the prime minister, new provisions will put the prime minister under parliamentary control. Newly elected parliament will have to create a majority within 60 days of a new sitting and the president will consult with the majority in naming a new prime minister (the parliamentary majority will thus name the new prime minister.) • However, the president still keeps several instruments with which to influence the executive branch. In addition to decree powers, the president can appoint and dismiss the heads of local state administrations.

27. Positive effect of the changes: • These changes will undermine the constitutional basis for hyper-presidential rule. • allowing the prime minister to appoint most of the ministers will strengthen the prime minister relative to the president. • allowing parliament to dismiss individual ministers without throwing out the entire cabinet and forcing a crisis will strengthen parliament’s control. This will make it harder for the president to use the government to harass political adversaries • Possible dangers: • The fact that the parliament has to create the majority to initiate the process of cabinet formation complicates this process • Although the cabinet assumes full responsibility for the functioning of the executive government, it is still the president who makes the final decisions about appointing and dismissing the heads of regional administrations. • But the main danger is that parliament and president will fall to fighting over control of the government

28. Proportional Election Law • Early in 2004, well before the Orange Revolution, Ukraine enacted a fully proportional election law to replace the “mixed” system used in the 1998 and 2002 parliamentary elections. • Parties became well-organised and popularly-based relatively late in the process of democratic consolidation. A high level of fragmentation and organizational instability characterized the party system’s evolution throughout the decade. SMD and later mixed electoral systems did not provide sufficient incentives to accelerate party system maturation and consolidation. A strong presidency provided additional disincentives for party development by denying parties the responsibilities of forming and supporting the cabinet. • Up to now party discipline has been minimal since deputies were free to abandon their parties without losing their seats. Also, the incentives for various forces to bribe or blackmail deputies to defect were considerable. • The Ukrainian presidents used the fragmentation and clientelism of the party system to form a majority around their choice of cabinets.

29. Positive side of the new law: The new proportional system will increase parliament’s ability to function effectively and help to strengthen political parties. • Problem: There is one significant problem with the new system, however – it lowers the threshold for entering parliament from 4 percent to 3 percent. This gives Ukraine one of the lowest proportional-representation thresholds in the world. The lower threshold will almost certainly reduce the incentives for parties to merge and thus, over time, will lead to a larger number of parties – especially small parties – in parliament. • Another novelty: the “imperative mandate” – it’s a rule that requires members of parliament to give up their seats if they leave the party on whose list they were elected. This change will have far-reaching effects for the functioning of parties and parliament. Considering the lack of party discipline that was typical to parliament up to now and frequent defection of the deputies, this will strengthen the party system and improve functioning of parties in parliament. • Problem: However, the imperative mandate may make party leaders too powerful.

30. Current territorial-administrative model of the state 24