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The Moulding of Ukraine

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Kataryna Wolczuk

Chapter six. The passage of the constitution: process, actors, and strategies

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1Three years after the proclamation of the Act of Independence, the Ukrainian state lacked a firm constitutional basis, something which led to a political paralysis that engulfed Ukraine in the summer of 1993. While tinkering with the 1978 constitution during Kravchuk’s presidency, Ukrainian elites failed to pass the new constitution, and the drafting of the most fundamental law of the polity was postponed until after the pre-term elections in 1994.

2Taking into account the highly disputed conceptions of statehood held by the key actors after the 1994 elections, constitution making, which was resumed soon after the elections, was expected to be anything but straightforward. Therefore, to speed up the process, the president attempted to deal with the division of powers at the centre in a stop-gap constitution, which took the form of a Constitutional Agreement of June 1995. Although the Agreement reduced mounting tensions, it nevertheless failed to reconcile the differences and suffered from a lack of procedural legitimacy. At the same time, the Agreement established a deadline of twelve months for the passage of the fully-fledged constitution. As the constitution had to resolve the highly disputed issues of the ‘national question’, the territorial–administrative model, and socio-economic issues, aside from the contentious issue of the form of government, the prospect for the completion of the process within the prescribed time limit looked dim. However, within twelve months parliament adopted the constitution by a constitutional majority after a tense stand off between the president and parliament.

3While the newly adopted Basic Law was permeated with compromises, the resolution on some issues favoured particular actors. Kuchma emerged victorious from his struggle to preserve most of the powers assigned to the presidency in 1995, even if the parliament passed the constitution ‘against’ the will of the president. The resolution of the ‘national question’ in the constitution most closely reflected the preferences of the national-democrats, despite them being in minority on this issue. This chapter aims to untangle the contingency of factors, that allowed the president, the national-democrats and, to a considerably lesser extent, the centrists to shape the blueprint of Ukrainian statehood enshrined in the new constitution.

4This outcome can be attributed to a circumstantial configuration of factors. The multiplicity of issues to be resolved, strategies of actors and a dense matrix of cross-cutting institutional and partisan divisions all played a role. So did the lack of clearly formulated and agreed rules governing the passage of the constitution. Constitution making consisted of two parallel processes: the elaboration of the constitutional norms, and the improvised elaboration of procedures to approve the constitution. These processes were closely interwoven, as the actors’ subjective perceptions of their abilities to determine the outcome affected their preferences on the promulgation procedure and vice versa. Overall, a corollary of the prevailing procedural uncertainty was that it created opportunities for actors, most of all the president and the national- democrats, to apply a variety of tactics and manoeuvres to steer the outcome of the process in a preferred direction, despite being in numerical minority on some issues.

5The chapter consists of two parts. The first provides a chronological overview by breaking the two years between 1994–1996 into key stages, according to the dominant actors and outcomes. It charts the progress of constitution making from the creation of the Constitutional Commission in autumn 1994, through the Little Constitution in June 1995 to the passage of the fully-fledged constitution in June 1996. The second part of the chapter analyses the main actors involved in the process— the president and the three blocs in parliament: national-democrats, left wing and the centre—in terms of their resources, hierarchy of preferences, and strategies in order to determine whether and to what extent they shaped the conception of the state enshrined in the new constitution. The content of the document will be examined in chapter 7.

FROM A ‘LITTLE’ TO A ‘BIG’ CONSTITUTION

THE UNPROMISING RE-LAUNCH OF CONSTITUTION MAKING (JULY–DECEMBER 1994)

  • 1 The institution of the presidential representative at the regional and local level was abolished i (...)

6Immediately after the elections, president Kuchma publicly demonstrated his exasperation with the existing amorphous and contradictory constitutional framework by arguing that the 1978 constitution had outlived its usefulness and obstructed economic reforms. He decided to ‘remedy’ the situation immediately by issuing two decrees (ukazy) in August 1994, which restored the executive chain of command subordinated to the president which had been dismantled in early 1994 (see chapter 4). According to the first ukaz the president as the head of the executive branch directed the activities of the cabinet of ministers. The second ukaz subordinated elected heads of radas at oblast and raion levels (who were simultaneously the heads of vykonkomy) directly to the president, and made them personally responsible for the execution of state powers.1 The second ukaz, which was in breach with Kuchma’s electoral slogan of decentralisation of power to the regions, limited democratically elected local authorities. Shortly after, however, as a kind of counterbalancing gesture, he created a Council of Regions (Rada Regioniv). This advisory-consultative body was headed by the president and consisted of the heads of oblasts, the mayors of Kyiv and Sevastopol, and the Deputy Prime-Minister of the Republic of Crimea.

7Soon after being elected, Kuchma announced the long awaited intensification of reforms and to this end demanded the strengthening of the presidency (something which was to be repeated after his re-election in 1999). In October 1994, he succeeded in obtaining parliamentary approval for his policy programme ‘The Road to Radical Economic Reform’. Within three months of the elections, the seeds of conflict between Kuchma and the leftist factions in the Supreme Council, which advocated a different path for institutional reform and mode of economic recovery, had been planted. In particular, the strengthening of the presidency towards an executive type envisaged the transformation of the Supreme Council into an ordinary legislature and its powerful chairman into an ordinary speaker. Such plans clearly contradicted the agenda of the left wing, which dominated parliament. The ukazy marked the end of the post-election honeymoon between the parliamentary Left and president, both of which were elected by votes of Eastern and Southern Ukraine.

  • 2 There were some debates on the Constitutional Assembly, as the optimal institution to pass the new (...)

8Amidst the inconclusive scholarly debate on what kind of body ought to draft the new constitution,2 the new Constitutional Commission was formed in October 1994. Rather than being a parliamentary commission as was its predecessor, the new body was a ‘state commission’ consisting of ‘subjects with the right of legislative initiative’. Such a formula allowed for the inclusion of the two directly elected representatives of the electorate—the president and parliament. As a result, Kuchma and the new chairman of the Supreme Council, Oleksandr Moroz, co-chaired the 40-strong body consisting of 15 representatives of the Supreme Council (representing the parliamentary factions on a proportional basis), 15 representatives of the president, 1 representative of the Supreme Council of Crimea, and 7 members from the Judicial branch (Supreme, Arbitrary, and Constitutional Courts and the Procuracy). Thus, the Commission was a large and all-inclusive forum for political actors (both institutions and partisan groupings). The contradictory preferences of its heads and members soon came to the fore. At the very first meeting, the Constitutional Commission got bogged down in the highly contentious issue of the description of the sovereign people and did not even agree on internal procedures. The work of this all-inclusive Commission (which held meetings only once a month) was marred by scepticism about the whole endeavour both at the elite level and society at large.

THE ‘LITTLE CONSTITUTION’ (DECEMBER 1994–JUNE 1995)

  • 3 The idea of the law originated in early 1994, when during a meeting of the Constitutional Commissi (...)

9To ease the deepening constitutional crisis and the impasse within the Constitutional Commission, the president decided to propose a temporary solution. In December 1994 he tabled the draft ‘Constitutional Law on Power and Local Self-Government’ in parliament, which was to provide a ‘stop-gap constitution’ until the new one was ready.3 The law envisaged a radical shift to presidentialism; the form of government was modelled on the new Russian Constitution adopted in December 1993.

  • 4 See Volodymyr Lytvyn, Politychna arena Ukrainy (The Political Scene of Ukraine) (Kyiv, 1994), p. 2 (...)
  • 5 Due to the above-mentioned defects of the electoral law such as the requirement of 50 percent turn (...)

10A number of considerations underlay this decision. Firstly, the draft counteracted the left wing’s initiative to reinstate the system of soviets. From the beginning of the new parliamentary term in the spring of 1994, the self-assured left wing led by the Communist Party of Ukraine took the leading role in parliament and adopted a series of resolutions.4 Even before the presidential elections, in order to reverse the constitutional reforms initiated by Kravchuk, the Left proposed the draft law ‘On Local Radas of People’s Deputies’, according to which the system of soviets would be reinstated with the Supreme Council as the highest state organ, while the president would be deprived of means of control over the executive structure and ultimately would be limited to ceremonial functions. Secondly, the president hoped that by excluding other contentious issues such as the ‘national question’ or private property, and focusing only on the division of powers, the ‘Law on Power’ had greater chances of being adopted than a fully-fledged constitution. Thirdly, the Law as a hybrid between an ordinary law and a constitution could circumvent the requirement of the constitutional majority. The distribution of votes within parliament meant that the prospect of obtaining a constitutional majority was remote. The situation was exacerbated by simple mathematics: the changes to the existing constitution required at least two thirds of the total number of the mandates (i.e. 300 out of 450). Yet as approximately 50 seats were vacant at the end of 1994,5 in practice the constitutional majority was close to three quarters of sitting members. As a large group of deputies rarely attended parliamentary sessions, and only about 350 deputies participated regularly, the requirement of a two-thirds majority in reality meant four fifths of the actual number of active deputies. The Law offered a chance of introducing changes to the constitution disguised as an ordinary law (which only required a simple majority of 226). Fourthly, it would be a harbinger of the new constitution and strengthen the argument that the form of government ought not to be very different from the ‘Law on Power’, and thereby would provide for a powerful presidency. Once adopted, the Law would set a precedent for the work of the Constitutional Commission, as by December 1994 the Commission had not yet decided in favour of the form of government in general and the role of the president in particular.

  • 6 According to the original draft (December 1994) the president would have the right to resolve parl (...)
  • 7 If anything the commission proposed a streamlined form of government, that is a pure presidential (...)
  • 8 The results of the voting were: 221 in favour, 103 against and 17 abstained (Ukrainska Perspektyva(...)

11Even if the Supreme Council approved the draft for further consideration with the support of the six centre-right factions (176 deputies voted in favour, 135 against and 30 abstained), the prospects of the Law being adopted were dim. However, the first reading led to a pathbreaking institutional innovation within parliament to deal with the anticipated deadlock. Rather than delegate the revision of the draft to one of the parliamentary standing commissions (which were often dominated by one ideological orientation), a special ad hoc conciliatory commission was created to deal with the areas of dispute. Not only did the debates move from the parliamentary floor to a smaller room. Moreover, one faction was granted one vote, according to the rules that the conciliatory commission adopted. This arrangement favoured the smaller centre and right-wing factions, and disadvantaged the left-wing bloc with its large communist faction (Table 6.1). The commission soon trimmed some of presidential power and elaborated the procedures on the dissolution of parliament and impeachment of the president,6 but it did not depart from presidentialism.7 Despite the Left’s numerous procedural objections designed to sabotage the draft, in May 1995 the draft law mustered a simple majority in the second reading (224 in favour, 93 against, 14 abstained). Yet, in order to come to force, the left- wing insisted, the bill necessitated the suspension of a number of articles of the 1978 Soviet Ukrainian Constitution and this required a constitutional majority. Thus, the last word belonged to the leftist faction, which voted against such a constitutional revision on the 30 May 1995.8

  • 9 Kuchma’s address to the nation, Holos Ukrainy, 2 June 1995, p. 2.
  • 10 The decree was published in Holos Ukrainy, 2 June 1995, p. 2.

12Kuchma did not accept defeat and embarked on confrontation. On 28 May he decreed a referendum on the populace’s confidence in the president and parliament on the basis that ‘on many occasions a large section of deputies demonstrated a lack of will and an inability to work constructively, [and] provoked confrontation within parliament and between parliament and the president’.9 Opting for a referendum Kuchma gambled on his popularity, as the referendum was to force the electorate to choose its favourite institution by answering positively to one of the two questions: ‘Do you trust the president? and ‘Do you trust the Supreme Council’; ballots with both answers ‘negative’ would be invalidated.10 In retaliation, the parliament declared the decree on referendum unconstitutional on 1 June (with only 9 votes against) and attempted to block it by refusing to authorise funding to carry it out. Even the national- democrats feared a plebiscite in view of the Belarussian referendum held at the same time, which endangered Belarussian sovereignty. Yet Kuchma was not to be deterred and confirmed his intention to go ahead with the referendum.

  • 11 The notion was put forward by two lawyers, Serhiy Holovatyi and professor Leonid Yuz’kov, in Decem (...)

13To resolve the deadlock, an extraordinary form of a Constitutional Agreement (Konstytutsiinyi Dohovir) was resorted to.11 As a special political settlement between the branches of power, the Dohovir was conceived as a way of justifying the by-passing of the requirement of a two-thirds majority in the legislature. The legislature and president, representing the two branches of power, would not only ‘agree’ to obey the temporary set of rules regulating their interactions until a fully-fledged constitution was adopted, but also specify the procedure for the passage of the new constitution. Six right-centre parliamentary factions agreed to this formula and, after intensive negotiations, Oleksandr Moroz, the chairman of the Council, who until then opposed the ‘Law on Power’, also conceded to the Agreement. The Dohovir was voted in and signed personally by 240 deputies on the 7 June 1995 (see Table 6.1). In a special ratification ceremony in Marinskyi Palace, Moroz and Kuchma signed an extraordinary ‘Constitutional Agreement on Temporary Organisation and Functioning of State Powers and Local Self-government in Ukraine until the Passage of the New Constitution’. The Dohovir stipulated a suspension of certain sections of the 1978 Constitution and the adoption of the ‘Law on Power’ for twelve months, that is, until the new constitution was sanctioned in a nation-wide referendum.

Table 6.1. Breakdown of Voting on the Constitutional Agreement (7 June 1995)

Table 6.1. Breakdown of Voting on the Constitutional Agreement (7 June 1995)

14Source: Laboratory F-4

15The ‘Law on Power’, which was an integral part of the Dohovir, moved Ukraine towards a semi-presidential system similar to that introduced in Russia in December 1993. According to the Agreement, the president had the authority to (1) appoint a government without parliamentary approval, (2) issue decrees on economic reform providing that matters were not regulated in existing laws, (3) veto parliamentary bills, which could be overridden with a two-thirds parliamentary majority, (4) place the executive structure of councils at oblast and raion level under presidential jurisdiction (while councils at those levels were to be abolished). In turn, the legislative branch had the right (1) to reject the government programme (and take a no-confidence vote in the new government), (2) to hold a vote of no confidence in the government but no sooner than one year after the formation of the government, (3) to veto presidential decrees by a qualified majority. However, the president could not dissolve the parliament, which in turn could not impeach the president. Also, the Dohovir stated that no referenda be carried out until the adoption of the constitution unless they concerned the new constitution. Effectively, Kuchma was afforded powerful prerogatives, with the only major limitations being that he was denied the right to dissolve parliament (while parliament could not impeach the president). However, a time limit was imposed on the president by parliament as the Dohovir was only to be in force for a year (that is till June 1996).

THE CONSTITUTIONAL COMMISSION (SUMMER 1995–FEBRUARY 1996)

  • 12 Four months after the signing of the Constitutional Dohovir around 10 deputies requested that thei (...)

16Although the Dohovir mitigated the confrontation, it was only a momentary cease-fire in the unfolding conflict between the president and parliament rather than its resolution. As a little constitution, the Dohovir dealt predominantly with the institutions at the centre. However, not only did it leave other pivotal issues unresolved, it even failed to clearly define the legislative–executive relations. Being a sketchy, hastily prepared piece of legislation, it contained some contradictory norms. For example, the diverging interpretations of articles 46 and 53, which concerned the local administration, soon resulted in the ‘war of laws’ between the Supreme Council and the president over the right to determine the administrative structure of the state in the autumn 1995. The legality of the Dohovir was questioned as it amended the 1978 constitution by a simple majority vote (240 voted in favour rather than the minimum 300 required); the communists dubbed it a constitutional putsch. While the Dohovir’s heavily pro-presidential nature somewhat alienated the reformers from the presidency, it greatly fuelled leftists’ abhorrence of Kuchma and his desire for a strong presidency. So while the Dohovir delayed the final resolution, it also reinforced already held preferences; the left wing became even more deeply entrenched in their anti-presidential position. The lifespan of the Dohovir was thus finite, so much that one of its authors, a national-democratic deputy Roman Bezsmertnyi, suggested that ‘by October [1995] the Constitutional Agreement outlived itself and to rely on it any longer was a mistake’.12

17While the one-year deadline mobilised the parliament and the president, no agreement on the general principles of the new constitution was forthcoming in general, or on the role of Dohovir in the process in particular. The glacial pace of progress in the Constitutional Commission prompted the formation of a smaller body; in September 1995 a group of legal experts was delegated the task of preparing the first draft. The experts were selected by the subjects with legislative initiative: 4 presidential, 4 parliamentary and 2 representatives of the ‘judicial branch’. Once this small working group embarked on the drafting, the process acquired momentum, and in October 1995 a full draft was ready. It was the third full draft prepared since the onset of the constitutional process in 1990 (after the 1992 and 1993 drafts).

  • 13 According to the Dohovir, the heads of the oblast and regional level simultaneously performed func (...)

18Being the product of the furtive co-operation between the working group and the Presidential Administration, the draft contained the form of government, which bore a striking resemblance to the Dohovir. The cornerstone of the institutional framework was a strong executive branch subordinated to the president. The latter, however, was named only ‘head of state’, rather then ‘chief executive’. Where the draft most diverged from the Dohovir was the bi-cameral legislature (Natsionalni Zbory), and the structure of local government and the executive institutions at the intermediate level.13 Ukrainian was defined as the state language. However, in line with the ‘Declaration of Minority Rights’ of 1992, in compact settlements of national minorities, the language used by the majority of the population could be used in public sphere. In other words, Russian could be granted ‘official status’ at the regional level. The highly controversial issue of the national symbols (i.e. flag, emblems and the anthem) was left out and was to be determined by ordinary law. Therefore, while the form of government in the November 1995 draft reflected presidential preferences, the resolution of the ‘national question’ made concessions to the deputies on the left-centre flanks of the ideological spectrum.

  • 14 The sub-commission included 4 parliamentary, 4 presidential representatives and 2 of the ‘judicial (...)

19Even if in November 1995, the Constitutional Commission tentatively approved the draft as a baseline for further work (by 22 votes in favour out of 40), this was not out of any sense of satisfaction with the draft. Rather the Commission itself had no other ‘output’ to show for twelve months’ work. In order to further ‘improve’ the draft, another body was created, the so-called working sub-committee of the Constitutional Commission, which, this time, was composed of the ‘judicially literate’ members of the Constitutional Commission.14 Yet, as the formula of appointment was the same as used with the experts’ working group, the members who favoured a strong presidency dominated also this body. Although the sub-committee introduced extensive changes to the November draft, the system of government, which centred on a strong presidency, remained a blueprint of the new, so-called March draft.

20To this end, the inability to compromise within the large and inclusive Constitutional Commission led to narrow bodies of experts taking over constitution drafting. Despite being convened on the principle of proportional representation, these bodies squeezed out ideological diversity, as parliament—the key forum for the ideological contest—was allocated 4 out of 10 seats. The president was put on an equal footing with the legislature before his role in the polity was asserted. This biased membership made it possible to prepare the March draft (under the close guidance of the presidential entourage), which subsequently served as a template for the new constitution.

THE MARCH DRAFT

  • 15 Between November and March, the mode of elections was changed. The Senate was to be elected in dir (...)

21The March draft deserves attention as a milestone in the constitutional process. Not only did it serve as a constant point of reference for the drafters of the constitution until June 1996, but also one of its prominent features, the idea of bi-cameralism, was brought back onto the political agenda by president Kuchma after his re-election in 1999. The March draft, as the president put it, was intended ‘to end Soviet rule in Ukraine once and forever’ and envisaged a form of government based on the principle of the separation of powers. Its distinctive—and most controversial— feature was the bi-cameral legislature (Natsionalni Zbory). The lower chamber (Palata Deputativ) had legislative and budget functions, while the upper chamber (Senat), the popularly elected representation of the regions, was given extensive nominative authority mostly to approve presidential candidates for highest state posts.15 Most importantly, the draft envisaged a strong executive presidency, which had the right to:

  • appoint and dismiss from (most) judicial, military, and state posts, (though in some cases only with the approval of the Senate);
  • appoint the prime minister and Cabinet on approval of the House of Deputies and dismiss the prime minister and ministers unilaterally;
  • issue decrees with the power of laws;
  • initiate legislation;
  • veto parliamentary bills, a decision which could only be overruled by a qualified majority of 2/3 of both the House of Deputies and the Senate;
  • personally endorse the vertical state administration (by nominating heads of oblast and raion state administrations);
  • dissolve the legislature (if the House of Deputies were to reject the program of government twice within 60 days).
  • 16 Only the ruling of the Constitutional Court, which was to be nominated by the Senate and president (...)
  • 17 Holos Ukrainy, 3 February 1996.

22The extensive powers of the presidency contrasted with those of the lower chamber of the legislature that were mainly limited to law making. Parliament could not easily veto presidential decrees.16 It could however, impeach the president, although only through a cumbersome procedure involving the Constitutional Court. According to the draft, the cabinet of ministers would be approved by parliament and would exist for the duration of the president’s term in office. The cabinet would not have the right of legislative initiative, as law making initiatives would be the prerogative of the president. According to the chapter on local government, while local self-government was guaranteed at the community level (cities and villages), the oblast and raion radas were to be indirectly elected and dominated by their heads, who simultaneously served as presidential representatives and heads of regional state administration. The decisions of local self-government bodies could be suspended by heads of the appropriate state administration, who were subordinated both to the cabinet of ministers and the president. When analysing the text of the draft, one observer sarcastically commented that ‘the system of “checks and balances” in the draft constitution was actually transformed into a “system of checks” for parliament and “system of power” for the president’.17 At the same time, the article on the symbols was revised in line with the national-democrats’ preferences. While the article on language remained unchanged (and allowed the use of Russian in the public sphere), the national symbols were defined as the ‘Trident’, the ‘Blue and Yellow’ flag and the anthem ‘Ukraine Has Not Yet Perished’. This way both the president and national-democrats became the most ardent supporters of the draft.

THE PARLIAMENTARY COMMISSION (MARCH–MAY 1996)

  • 18 It was published in Uriadovyi Kurier, 21 March 1996.

23In February, the March draft was approved by the Constitutional Commission by a majority of 20 votes (out of 40), although the representatives of the parliamentary Left uniformly voted against it. Although the draft, the third one after the 1992 and 1993 drafts, was officially tabled in parliament in March 1996,18 it appeared to fare no better than its predecessors in terms of its chances of becoming the Basic Law of Ukraine.

  • 19 According to the 1978 constitution, any changes to the Fundamental Law lay exclusively within the (...)
  • 20 There were several alternative drafts including one proposed by the Communist faction and the 1993 (...)

24The Left, which had consistently voted against the draft in the Constitutional Commission, attempted to stall the ratification process. This was greatly facilitated by the absence of an agreed procedure governing the passage of the constitution,19 as it opened a floodgate for proposals for ways to pass the constitution, which changed as frequently as actors’ perceptions of their chances to shape the content of the constitution. Moreover, the question was not only ‘how’ but also ‘what’ should the Supreme Council consider, as at the same time as the draft of the Constitutional Commission was presented, a number of alternative drafts were tabled, including the draft of the CPU.20

  • 21 The Left was only 2 votes short of the number needed to reject the March draft at the very onset o (...)
  • 22 In a survey in the Supreme Council only 82 deputies (Rukh and Derzhavnist members featured promine (...)

25The Left vehemently criticised the March draft, and the communists flatly refused to debate it.21 At the same time, despite the nominal approval of the March draft by the Supreme Council for further consideration, there was only lukewarm enthusiasm for the March draft across the centre-right part of the political spectrum. Both the autocratic spirit of the constitution and many specific provisions in the draft sparked a wide-ranging condemnation. Amongst the numerous provisions of the draft, the bi-cameral legislature evoked the most zealous and uniform resistance.22 Thus, even the most ardent supporters of the draft soberly realised that it would not obtain even a simple majority in parliament. At the same time, however, there was some relief that at least there was now a complete draft to work on. Even if the March draft excessively favoured the presidency, it was, nevertheless, of a higher quality and more representative than the alternative drafts tabled by political parties or individual deputies at that time.

  • 23 Unable to make much impact on the work of the Commission, the communists ‘revised’ their own draft (...)

26In order to ensure the draft’s approval in parliament, an informal conciliatory group headed by a little known, centrist deputy, Mykhailo Syrota, was convened within parliament (the precedent was established during the approval of the Dohovir). The group included all centre-right factions, with peasants and socialists as ‘observers’, while the communists refused to participate. The conciliatory group set about crafting a more balanced form of government, and the article on the upper chamber was one of its first victims. When it was evident that this informal group—driven by the imperative to compromise against the Left’s opposition— made fast progress, in early May 1996, on Oleksandr Moroz’s initiative, the group was transformed into a formal ‘Temporary Extraordinary Commission on the Preparation of the Draft Constitution’. However, despite the intention of the Left, the Commission continued with the previous voting arrangements: ‘one faction—one vote’, which, once again, turned the Left into a minority. Facing the determination of the right-centrist factions to push forward the process, the moderate Left failed to radically alter the content of the March draft.23

  • 24 Kommunist, No. 24, June 1996, p. 3.

27At the end of May 1996, the Extraordinary Commission produced an amended version of the March draft, the so-called ‘Syrota draft’. Even if the draft did not fundamentally alter the form of government envisaged by the March draft, the conciliatory group and the Commission improved the system of ‘checks and balances’ by weakening the presidential powers and strengthening the position of the legislature and the cabinet of ministers. Yet, the Left remained unrepentant: ‘an unbiased analysis [of the Syrota draft] leads to the conclusion that … it amounted to “cosmetic surgery”, which did not change the anti-national nature of this document. The rejection of bi-cameralism hardly changed anything’.24 As a result, the Syrota draft was only approved by 17 out of 28 members of the Temporary Extraordinary Commission (all but one representatives of the leftist factions voted against it).

PLENARY DEBATES IN PARLIAMENT (JUNE 1996)

28While the Extraordinary Commission was making progress on the draft, the procedure for the passage of the constitution remained undecided. Thus, the plenary debates started in June 1996 again with the hotly debated procedural issues and a show-down between the Moroz-led leftwing factions and the centre-right in the Supreme Council (on the breakdown of parliament see Table 6.2). When the draft finally underwent its first reading, it obtained, as was expected, only a simple majority (258 in favour, 106 against, 19 abstained, 9 did not vote). This result was to a large extent due to the efforts of the group and Commission led by Syrota, which won over a greater number of the centrist deputies. The likelihood of a successful passage by a two-thirds majority was still perceived as negligible. Satisfied with such parliamentary ‘blessing’, the national-democrats urged the president to unilaterally set a date for the referendum to by-pass the Left’s resistance.

29Despite the fact that the Left attempted to forestall the process, the parliament moved on to the second reading of the draft on 19 June 1996. However, with mundane debates on each article progress was glacial and the second reading appeared to drift into a stalemate. A number of key articles did not muster a constitutional majority (including the text of the Preamble, the articles on the language, national symbols and private property), and the resolution of the main bones of contention was simply deferred to the third (and final) reading. The highly charged polemics and protracted deliberations fuelled a deep scepticism about the whole endeavour and a growing conviction that the Supreme Council could not adopt the constitution in the third reading by a qualified majority of 300.

Table 6.2. Breakdown of the Ukrainian Parliament (May 1996)

Table 6.2. Breakdown of the Ukrainian Parliament (May 1996)

30Source: Holos Ukrainy, 31 May 1996.

THE CONSTITUTIONAL NIGHT (27–28 JUNE 1996)

  • 25 The decree was in breach of the Dohovir, which stipulated the rules for setting up a referendum sp (...)

31At this point, president Kuchma re-emerged as the dominant force in constitution making. On 26 June 1996, he dispensed with legal niceties and announced that with no prospect of the constitution being adopted by the Supreme Council, a nation-wide referendum on the constitution would be held in September 1996.25 Most importantly, it was to be on the earlier, more pro-presidential March draft, rather than the Syrota draft, which had already been passed by a simple majority in parliament. In a one-fell move president Kuchma side-stepped the cumbersome compromises worked out within the Supreme Council over four months on grounds that the Syrota draft was ‘approved’ within the parliament, but not officially ‘agreed’ with the president (despite the fact that the Syrota Commission held weekly meetings with the president and the presidential administration to discuss any revisions). The March draft was viewed by the majority of the factions, even those allied with the president, as inferior to the Syrota draft already approved in the first reading and the decree caused uneasiness and consternation, even amongst the national-democrats, who had urged the president to take the Syrota draft to a referendum.

Table 6.3. Voting Results from the Adoption of the Ukrainian Constitution (28 June 1996)

Table 6.3. Voting Results from the Adoption of the Ukrainian Constitution (28 June 1996)

32Source: The Supreme Council of Ukraine.

  • 26 Markian Bilynskyi, ‘Finally, a constitution is born’, The Ukrainian Weekly, 7 July 1996, p. 2.

33Kuchma’s decree induced a profound legitimacy crisis: the Supreme Council was failing to carry out its duties by not being capable of passing a fundamental law. By decreeing on a referendum and undermining the role of parliament, the president claimed to act in line with the ‘popular will’, frustrated with the deadlock within parliament. This strategy leant heavily on the high level of popular support for the president compared to that for parliament. Yet parliament was not to be easily dismissed. The decree and the threat of an imminent referendum acted as catalysts in forging some sense—even if short-lived—of collective solidarity of parliament as the highest representative body with responsibility for the adoption of the constitution. Fears lingered that not only might the less desirable draft be ratified in the referendum, but also that the subsequent dissolution of parliament would be a mere formality, as Kuchma was bending backward and forward to discredit the legislature in the state-controlled media. One observer neatly attributed the radical change in the attitudes of the deputies to the fact that: ‘nothing concentrates the mind more wonderfully than the premonition of a hangman’s noose or a firing squad’.26 Sensing its imminent dissolution, the parliament sharply accelerated its work-rate, led by its socialist chairman Moroz, who until then had actively hindered the passage. Moroz arranged a non-stop debate, which turned into a 23-hour marathon of frantic negotiation and repetitious voting. Throughout that crucial night, the issues, such as the status of Russian language, symbols, property rights or the status of Crimea, which proved to be the greatest obstacle to the passage of the constitution, were tackled by repeated voting (10–20 times on some articles). The issues were also voted on as ‘packages’ to force reluctant factions to vote in favour (see below). In a highly tense and emotional atmosphere a constitutional majority (300 votes) was achieved when 315 deputies voted in favour of the constitution, while 36 voted against, 12 abstained while 30 did not vote (Table 6.3).

34This result was met with astonishment by all sides. When taking the decision on the referendum, the president presumed that the ideological cleavages within parliament made a settlement impossible and would prevent the legislature from acting unanimously. Yet by submitting a draft to a referendum which was viewed by all factions in parliament as worse than the already approved Syrota draft and, moreover, by putting a question mark over the future of parliament, the decree had a powerful and—taking into account the presidential intentions—unintended consequence of recreating a conflict between the institutions, similar to that in the Russia of 1993. Having achieved his main goal through the efforts of parliament, the president, even if visibly puzzled by this unexpected ‘attainment’, congratulated the parliamentarians, apologising for his tactics and calling off the referendum. But even if unwittingly, the president acted as a midwife, delivering the constitution under the trying conditions of a divided parliament unable to master a constitutional majority. Symbolically, Ukraine succeeded in ratifying the new constitution, and hence gained the pivotal attribute of sovereignty, before the decisive second round of the 1996 Russian presidential elections, when Yeltsin’s victory and Ziuganov’s defeat seemed far from certain.

ACTORS’ PREFERENCES, STRATEGIES AND INSTITUTIONAL RESOURCES

35The chronological overview provided an account of the two years (1994–1996) of intense constitutional reform, which despite the difficulties, resulted in the 1995 ‘Little Constitution’, and was followed by a proper constitution a year later. The chronological overview raised a number of questions, which have so far remained unanswered. Were the preferences of actors, as described in the previous chapter, fixed and static or did they change in the process? What strategies did the actors adopt to realise their preferences? What institutional resources did they employ? To what extent did the actors shape the content of the constitution? Why did some of them succeed whereas others failed? The next section, thus, will examine in more detail the preferences, strategies and institutional resources of main actors in the process (the presidency, the national-democrats, the Left and the centrists). Although the focus will be on these collective actors, attention will be drawn to individuals whenever their actions affected the course of events.

THE PRESIDENCY

  • 27 As one of the deputies involved in the constitutional process commented ‘the presidential side was (...)

36The president’s dominant role in the constitutional process stemmed from both a clearly and narrowly defined set of preferences and the institutional resources, which the president had at his disposal. Without the baggage of ideological convictions from the outset, the focus of the president and his administration was on the form of government, and he threw all resources at the constitution making to secure the desired outcome.27 In pursuit of institutional advantage, Kuchma pushed to the brink of embarking on a confrontation with parliament.

  • 28 Demokratychna Ukraina, 23 March 1996, p. 1.

37As pointed out in chapter 5, the president favoured a strong, executive presidency with legislative power and control over the cabinet of ministers and the regions. At the same time, the president paid little attention to the ‘national question’. Yet, even if focused on the institutional goals, Kuchma and his entourage took advantage of the fact that the national question was of ‘principal importance’ for the Right, while as far as Kuchma was concerned it was ‘tradable’. Hence, the issue of symbols and language were utilised to attract the support of the national- democrats. While in the November draft, the national symbols (flag, emblems and the anthem) were to be determined by an ordinary law, Kuchma later firmly backed the national-democrats in their insistence that the constitution specifies the ‘yellow and blue’ flag, trident and the anthem (‘Ukraine Has Yet Not Perished’) as the national symbols. The president swiftly adopted the ‘rhetoric of statehood’ to win over the support of the right wing, arguing that: ‘[the March draft is] quite European in its letter and spirit and reflects the traditions of Ukrainian state building’.28 Kuchma equated support for the March draft with support for sovereignty and depicted those who opposed it as the enemies of the national interest and traitors of the ‘people’.

38With the Dohovir 1995 as a milestone in the consolidation of presidential powers, the primary objective of the president was to copy the chapters on the division of powers from the Dohovir into the new constitution. Working to Kuchma’s advantage, was the fact that the Dohovir not only ‘swung the pendulum’ towards presidentialism, it also introduced a crucial change to the ratification procedure. Even if tentatively, the Dohovir authorised the role of the president as equal to that of parliament and opened the door for ratification in a referendum, in contrast to the 1978 constitution, which only allowed for changes to the constitution to be approved by parliament. Although the president had no right to request a referendum on the constitution on his own initiative, the Dohovir envisaged a referendum after the text of the constitution had been agreed between the president and parliament. On the basis of this provision, Kuchma insisted on keeping the ratification of the constitution unconstrained by any rules, and objected to parliamentary initiatives to elaborate the detailed procedure. By specifying the meaning of the term ‘agreed’, the president’s room for manoeuvre would be considerably narrowed. Taking into account the popular legitimacy of the president, the Dohovir, even if hampered by procedural illegitimacy, provided the president with an instrument with which to pressurise parliament, namely the plebiscite, which he was only too keen to exploit.

  • 29 Many of the lawyers shared Kuchma’s belief in the merits of the ‘Law on Power’. For example, Volod (...)

39Apart from initiating the Dohovir, the presidency seized a crucial institutional advantage at the outset of the process. When the second Constitutional Commission was set up in October 1994, it differed from its predecessor in that it was not a parliamentary commission. Instead, it included ‘representatives of subjects with legislative initiative’—the legislature, the executive and the judicial branch. Taking into account that the principle of the separation of powers was the bone of contention in Ukraine, the formation of the Constitutional Commission according to this principle was a path-breaking event. Not only did it introduce the principle through the back door, but also created the institutional setting, which favoured the president. The application of the principle of the separation of powers put the president on an equal footing with parliament: he appointed almost half of the members of the Constitutional Commission. Moreover, as 2–3 out of the 4 representatives of parliament sided with Kuchma in his views on the form of government, he gained a competitive edge over the anti-presidential forces. This advantage became even more pronounced in the experts’ working group.29 Indeed, the November draft closely resembled the Dohovir, except for the bi-cameral legislature. Overall, the composition of the Constitutional Commission and the working group proved crucial in determining the outcome of the constitutional process, in particular with regard to the form of government.

  • 30 For example, the Department of Internal Affairs in the Presidential Administration worked full tim (...)

40The presidency resorted to a variety of tactics to prevent such changes greatly helped by the institutional resources available to it. When the draft was prepared in the Constitutional Commission in 1994–1995, the president was directly involved in the debates. However, once parliament took over the draft in March 1996, the president’s role was reduced to that of an observer. But Kuchma and his Administration continued to play a key role in the process, as he commanded impressive know-how and human resources in comparison to parliament in general, and individual parliamentary factions in particular. All the institutional resources available within the Presidential Administration and the cabinet of ministers were thrown at the problem to secure the passage of the constitution.30 The Presidential Administration embarked on intensive behind-the-scenes lobbying, negotiations, promises and deals with factions and individual deputies to minimise the changes to the form of government as outlined in the March draft. In particular, it ensured it gained support within the Supreme Council, by dwelling on the dependency of some deputies on the presidency. Some deputies combined parliamentary mandates with posts in the executive branch at the central and local level (the so-called sumisnyky), and, as such, were ultimately subordinated to the president. Thus, a group of approximately 40 deputies consistently defended the presidential position, and effectively acted as the president’s ‘fifth column’ in parliament. Aware of those loyalties, Moroz attempted to purge parliament of sumisnyky in November 1995, but failed to obtain the necessary support in parliament. Moreover, while parliament was debating the constitution, the president recruited some prominent deputies from the volatile centrist factions, with which he found it difficult to negotiate, into the executive branch.

41The ideological diversity in parliament and the bitter strife between the Left and the Right prevented an anti-presidential alliance in parliament, yet smaller bodies such as the informal conciliatory group and the Temporary Extraordinary Commission could pose a greater challenge. These were small groups of committed deputies, who worked intensively on a ‘voluntary basis’ driven by the need to work out a compromise both within the group and within their factions. Several members of the Commission commented in interviews that they developed a collective identity and their common goal was to prepare a draft, which would be passed by the Supreme Council. The president, however, sought to undermine their determination and unity by bringing up demands in weekly meetings, which were impossible to accept by the informal group without jeopardising the fragile consensus and hard-won compromises. Often those demands were designed to exacerbate the internal cleavages within the factions (mainly centrist ones), and, as such, played havoc with the progress of work and created delays.

  • 31 Prime minister Lazarenko arranged a meeting of the cabinet of ministers away from Kyiv at the Cher (...)

42One of the most controversial, but decisive events of the process was the president’s decision to put to referendum the more pro-presidential March draft rather than the Syrota draft. As this was inconsistent with Kuchma’s earlier actions, this came as a surprise even to the propresidential deputies. In late May 1996 the president declared his unconditional support for the Syrota draft and during the first reading in early June 1996, all sumisnyky-deputies were instructed (because of their usual high level of absenteeism) to attend the session in order to counter-act the Left’s attempt to boycott the first reading by refusing to register. However, after the first reading, the president and the Presidential Administration radically changed their rhetoric and tactics, and began to boycott the parliament’s efforts, despite the fact that the form of government in general and the presidential powers in particular remained essentially unchanged between the readings. During the second reading, the sumisnyky were instructed not to participate.31 The presidential side expected that without the sumisnyky, the centre-right deputies would not cobble together a constitutional majority, and this would only strengthen the case of the president to put the draft constitution to a referendum. The two national-democratic factions, Rukh and Derzhavnist’, were also persuaded to take up this strategy although they did so with less consistency (see below).

  • 32 Thus, the media, which were controlled by the executive branch, launched a campaign designed to er (...)

43This inconsistency and change of tactics can be attributed to the internal workings of the Presidential Administration, where internal factions competed for influence in determining the institutional strategy. The moderates, headed by the presidential adviser Oleksandr Rozumkov, favoured the ‘lawful’ passage of the constitution in the Supreme Council; initially they had the upper hand. As a contingency plan, preparations were made for a referendum.32 Yet, between the first and second reading in June 1996, the ‘hard-liners’, led by the head of the Presidential Administration, Dmytro Tabachnyk, gained the upper hand and disposed of all niceties. They unleashed an uncompromising assault on the Supreme Council and advised the president to submit the March draft to a referendum.

44The weak legal basis for holding a referendum was not a deterrent for Kuchma, as a precedent had been established prior to the Dohovir. Kuchma attempted to offset any legal shortcomings by emphasising his popular mandate and posing as a popular champion forced to counteract the paralysis within parliament. On numerous occasions, Kuchma stressed that it was recommended that he resorted to a referendum to complete the process; for example, the Council of National Security and Defence asked him to act decisively on the grounds that further delays in passing the constitution would pose a serious threat to Ukraine’s national security.

  • 33 Interview with Oleksandr Moroz, Visnyk programy spryiannia Parlamentovi Ukrainy (Newsletter of the (...)

45In sum, the president and his entourage was the driving force in the constitutional process, propelled by clearly defined institutional interests and bolstered with considerable institutional resources. The presidential initiative in the early stages of the constitutional process proved decisive for suppression of the spectrum of views represented in the Supreme Council, and resulted in a draft skewed in favour of the presidency. As Moroz admitted: ‘[when appointing the Constitutional Commission] there was an attempt to include all views and positions. With the benefit of hindsight [it can be concluded that] it was a mistake. The constitution should have been drafted by the Supreme Council’.33 As a result of this initial decision, parliament worked to amend the pro-presidential drafts against the clock and mounting tension from the presidency. While the ideological divisions within parliament protected the presidential interests in the constitutional process, the threat of a referendum ‘finished the job’ by forcing parliament to submit.

THE LEFT

46The Left’s strategy in the constitutional process was that of an unmitigated series of rejections of compromises and a staunch opposition to the drafts, which did not fully take into account its preferences. Thus the Left resorted to a mix of blocking manoeuvres to slow down the constitutional process while hoping that, at some point, it would be able to mould the content of the constitution to its liking. However, the Left’s orthodoxy and rigidity alienated its potential allies—the centrist deputies. As a result, despite being the largest ideological orientation in parliament, the Left failed to gain the initiative, and eventually crumbled under the pressure during the final night.

47The Left in general and the communists in particular rejected both the November and the March drafts, because they included the following provisions:

  • the abolition of the structure of radas with the Supreme Council as the highest authority;
  • the bi-cameral legislature;
  • the dominance of the president over the legislature with prerogatives more extensive than in the Dohovir;
  • inadequate protection of the state and collective property in contrast to that of private property;
  • the introduction of ‘capitalist social relations’;
  • insufficient social guarantees to preserve ‘socialist achievements’;
  • ‘nationalistic’ state symbols;
  • the elevation of the Ukrainian nation (national state) and Ukrainian as the sole state language; and
  • the abolition of prokuratura’s function to oversee legality.34

48In particular, on the ‘national question’ the communist leader, Petro Symonenko, was outspoken in his criticism of the March draft:

  • 35 Kommunist, No. 24, June 1996, p. 3.

The constitution aims to allow the domination of a nationalistic and anti-human (liudyno-nenavysnytskoi) ideology, symbols of Petliura-Bandera, which are rejected by the majority of the population, and the linguistic discrimination against tens of millions of people who do not belong to the so-called ‘indigenous nation’.35

  • 36 Kommunist, No. 11, March 1996, p. 3.
  • 37 Kommunist, No. 17, April, 1996, p. 3.

49The Left condemned the form of government based on the principle of the separation of powers embedded in the draft constitution on the grounds that ‘having formally declared the principle of separation of powers, the authors seriously invalidated the principle by putting the president above the other branches of power and practically beyond the reach of minimal control by the society and the citizens, who elected him.’36 The Left declared that all of the above objections were of ‘principal importance’ and it would not ratify a draft that did not take them on board. The left-wing factions declared that ‘they cannot agree to the brutal imposition of the Fundamental Law, the basic principles of which break both the articles of the Declaration of Sovereignty … and the Concept of the Constitution approved by the Supreme Council [in July 1991’].37 As a result, the Left rejected outright the November, March and then the Syrota draft, and took a range of steps to ruin the process.

  • 38 Author’s interview with member of the Socialist faction, Mykola Lavrynenko, Kyiv, November 1995. S (...)
  • 39 Kommunist, No. 24, June 1996, p. 3.
  • 40 Demokratychna Ukraina, 21 May 1996, p. 1.
  • 41 Kommunist, No. 13, March 1996, p. 1.
  • 42 See The Rukh Insider, Vol. 2, No. 4, 25 March 1996. As the Left did not register there was no quor (...)

50The Left questioned the authority of the Constitutional Commission to draft the constitution because its working group consisted only of pro-presidential specialists, and members of the left-wing factions were marginalised in the Constitutional Commission.38 The communist leader—Petro Symonenko—depicted the constitution as the result of a plot hatched by presidential cronies.39 Similarly, the Socialist Oleksandr Moroz referred to the March draft as ‘an extremely contradictory draft, born in the womb of one of the branches of power by individual apparatchiks’.40 At the beginning of 1996 the Communist Party had launched a campaign to collect 3 million signatures in support of a referendum. As the most legitimate way to draft the constitution, the communists advocated a referendum on the principles of the constitution, such as the language, symbols, the status of private property, before the constitution could be drafted by the Supreme Council. However, the petition was ruled illegal by the Minister of Justice, the Electoral Commission and the General Procurator. The communists declared the campaign a ‘moral crusade’.41 Being unable to resort to instruments of direct democracy, the communists tabled their own draft the ‘Constitution of the Ukrainian Soviet Socialist Republic’ signed by 125 members of parliament in the hope that it would become an alternative to the March draft (see above). In the meantime, they attempted to stall the ratification of the March draft by strictly adhering to the Reglament, a set of parliamentary rules of the legislative process, which were not only vague but also did not elaborate the procedure for the passage of the constitution. The Left repeatedly refused to register so that a quorum could not be reached.42 Between the first and second reading, they tried to ‘jam the system’ by proposing several thousand changes to the Syrota draft. In sum, the Left championed procedural legality and relied on its numerical strength to halt the ratification process.

  • 43 In particular, the socialists were in favour of a weak presidency, but not the abolition of the in (...)
  • 44 Demokratychna Ukraina, 21 May 1996, p. 1.

51Although more moderate in their rhetoric, the socialists and peasants backed the communists in the attack on the March and Syrota drafts.43 Oleksandr Moroz acted as a powerful spokesman of the Left. Although he signed the Dohovir, he stressed its temporary nature, and emphasised that the provisions of the Dohovir remained totally separate from and in no way contiguous with the new constitution. He praised the communist draft: ‘it is a presentable draft, in which all functions of the branches of power are clearly specified, the guarantees of social welfare of citizens are strengthened, the chapter of the judicial power and, especially, local government are reasonable’.44 Nevertheless, while the communists adopted a strategy of non-cooperation, Moroz proved more amenable to compromise. Thus, his faction, the socialists, participated in the conciliatory group headed by Syrota as ‘observers’. Moroz then attempted to exercise greater control and bring the Left into the process by giving a formal recognition to the Syrota commission. However, as the revision of the March draft was almost complete by that time, his initiative came too late to radically alter the content of the draft before the first reading.

  • 45 Author’s interview with Roman Bezsmertnyi, Kyiv, September 1996.

52Even if Moroz used his position as chairman to torpedo the ratification of the March and Syrota drafts in parliament, his institutional role made him rise above his ideological convictions. Entrenched in their opposition, the communists favoured a referendum as a means of ratification. In contrast, Moroz insisted on the passage of the constitution by the Supreme Council and condemned the referendum on the grounds that it would polarise society, fearing that it would side-track the parliament. He expected that the communists’ draft would be considered parallel to that of the Temporary Extraordinary Commission and that the two drafts would eventually be amalgamated into a single draft. This way the Left’s preferences would be incorporated into the constitution. While Moroz remained torn between the ideological preferences, the need to secure his power base in parliament, and his institutional role as chairman of parliament, Kuchma’s decree on the constitutional referendum tipped the balance in favour of the latter. Having obstructed the passage until then, Moroz overnight turned into an ardent supporter of the Syrota draft. He set out to persuade the centre-left deputies opposing the constitution of the danger of their strategy—namely, that without the passage of the constitution, the Supreme Council would cease to exist. He convened a non-stop session of parliament arguing ‘that we can’t stop the session, because the momentum would then be gone’.45 Overnight, Moroz’s status changed from that of a side-tracked politician to that of a statesman, as he gained the aura of a politician who was prepared to sacrifice his own partisan convictions for the sake of higher considerations—reconciliation and stability of the country. Eventually, he succeeded in winning over those socialists, peasants and even some communists who feared the ramifications of the failure to pass the constitution by the Verkhovna Rada. The inevitable result was a split of the Left into hard-liners and moderates, although the division did not follow neatly factional lines (see Table 6.3). The left-wing bloc, renowned for its voting discipline up till that point, splintered under pressure during the final night, in which Moroz’s role was highly instrumental.

53Overall, despite having a clearly defined set of preferences and being the largest bloc in parliament with over one third of all seats, the Left emerged as the loser. This can be attributed to three main factors. Firstly, the Left flatly rejected the whole conception of statehood proposed by the centre-right, and the sheer number of the disputed issues made compromise with other factions practically impossible. Secondly, the leftist strategy relied on its relative numerical strength in the Supreme Council to control the outcome of the constitutional process. By embarking on a strategy of non-cooperation, boycotting the process, and waiting for an opportunity to introduce radical changes to the draft constitution before it was passed, the Left’s ideological preferences isolated it from other actors. The Left’s uncompromising stance in its opposition to the March draft acted as a catalyst in drawing the fragmented centreright factions and the president together in support of the constitution, despite the profound differences between the preferences of those actors. Thirdly, the internal rifts within the Left were decisive. The hardline communists rejected compromise and opted for confrontation rather than accepting a ‘nationalist, authoritarian constitution’. In contrast, the moderate Left’s readiness to embrace at least some of the ideas propagated by other factions, such as the right of private property, made them more open to compromise. While the internal cleavage within the leftist bloc initially remained narrow, it widened radically after the president decreed on the referendum, especially as the leader of the moderate socialists, Moroz, put premium on his institutional role. Ultimately, however, the content of the constitution was influenced neither by the moderates, who sanctioned the constitution, nor the hardline communists, who did not.

THE NATIONAL-DEMOCRATS

54The stance of the national-democrats in the constitutional process amounted to a wholesale rejection of the Soviet legacy in post-Soviet Ukraine. But as the process progressed, they encountered fierce opposition from the Left, they found themselves unable to realise their vision of statehood. By necessity, they found an unlikely ally in the president, a coalition that allowed them to instil their conception of nationhood in the constitution, but caused some confusion on other issues, and their overall strategy.

  • 46 Kommunist, No. 6, February 1996, p. 1.
  • 47 However, only approximately 20 percent of all deputies favoured the restoration of the USSR and th (...)

55In order to turn Ukraine into a modern, democratic and ‘fully European’ state, they advocated the abolition of the system of soviets, a change in the definition of the political community to assert the role of the titular majority, and the creation of the institutional framework to ensure the territorial integrity of Ukraine. The national-democrats, however, most of all abhorred the idea of the restoration of the Soviet Union, which was the professed goal of hard-line communists. The referendum on the constitutional principles, which the Communist Party of Ukraine attempted to organise in the winter-spring of 1996, was to include a question on ‘attitudes toward the voluntary Union of Independent States created on the territory of the ruined Soviet Union’.46 Moreover, the Left’s attempt to block the March draft acquired a particular dimension in light of the upcoming Russian presidential elections in June 1996, in which the communist candidate Genadii Ziuganov challenged the incumbent president Boris Yeltsin. The national-democrats feared that the latter’s victory would give a new lease of life to communist forces across the former Soviet Union and boost the standing of the Communist Party of Ukraine in its drive to re-integrate Ukraine with Russia.47 As a win for Ziuganov would present a tangible threat to Ukraine’s sovereignty, as far as the nationaldemocrats were concerned, the schedule of the presidential elections in Russia dictated the ‘constitutional timetable’ in Ukraine.

  • 48 The Ukrainian Weekly, 31 December 1995, p. 21.
  • 49 Rukh’s petition to the president was published in Chas-Time, 15 March 1996, p. 1.
  • 50 Molod’ Ukrainy, 22 March 1996, p. 2.

56Those considerations determined the priorities of Rukh and the Derzhavnist’ factions, and to a lesser extent, Reforms. At the end of 1995 Viacheslav Chornovil, the leader of Rukh, commented on the November draft: ‘familiarity with the draft constitution … fills me with deep sadness, and even deeper fear’, and he criticised the draft constitution as ‘anti-national, anti-party and anti-parliamentary’.48 However, by the spring 1996, as the CPU launched its offensive (see above), the quick ratification of the constitution became the utmost priority. The Left’s outright rejection of the March draft and the resulting stalemate in parliament convinced the right-wing that mustering a constitutional two-thirds majority would be nothing short of miracle, and thus the procedural hurdles had to be circumvented, ‘because of the attempt of the communo-bolshevik majority to delay the debates on the draft constitution’.49 They urged the president to set a tight deadline for the passage of the constitution in the Supreme Council, which, if not met, would result in the constitution being submitted to referendum. But the national-democrats advocated only a referendum on the full draft of the constitution, and opposed the communists’ suggestion for a referendum on the general principles, which—as they feared—would not only delay the process, but might not have resulted in the electorate supporting the national-democrats’ preferences. Believing that the full draft could be ratified only with presidential backing, they looked to the president as a vital ally in the task of sanctioning their vision of the Ukrainian state. Unwilling to concede on any principal point the national-democrats, a priori rejected the compromise with the Left and profoundly distrusted any of its initiatives. As Chornovil commented: ‘it was impossible to consolidate pro-statehood (derzhavnytski syly) and anti-statehood (antyderzhavnytski) forces’.50 For example, the formalisation of the special conciliatory group, which actually conferred the Syrota draft greater legitimacy, was interpreted as a plot by the socialist Moroz to torpedo the whole process. The fear of a ‘red encroachment’ (kommunistychna navala) made the national-democrats exclude the Left rather than woo it into co-operation.

  • 51 Author’s interview with Oleksandr Reimer, Senior Consultant in the Department of Internal Affairs (...)
  • 52 Molod’ Ukrainy, 28 June 1996, p. 1. Such an alliance would be possible if the rules for the passin (...)
  • 53 This was one of the questions that divided the president and the national-democrats. Another was a (...)

57The national-democrats placed the ‘national question’ and protection of Ukraine’s territorial integrity at the top of their constitutional agenda. As one participant in the process from the presidential side commented: ‘Crimea, language, symbols and the constitution as a symbol—all of these were sacred (sviate) for the right wing’.51 Even if the passage of the constitution was the highest priority, the national-democrats themselves boycotted the debates by refusing to register (so that a quorum of two thirds could not be obtained), when there was a threat that the centre and leftist deputies could close ranks to ensure that the Russian language was granted the ‘official status’.52 During the constitutional night, the Right voted against granting Crimea the status of ‘Autonomous Republic’ even at the risk of jeopardising the whole ratification process. The ‘national question’ and ‘territorial integrity’ was not to be sacrificed for the sake of quick and lawful passage of the constitution by parliament.53

  • 54 The Ukrainian Weekly, 17 March 1996.

58As regards the form of government, for the national-democrats the significance of the constitutional process was more than a matter of securing institutional advantage through the creation of either a presidential or parliamentary system. For them the overarching goal was the protection of the sovereignty of Ukraine. Serhiy Holovatyi, the Minister of Justice, commented on the institutional framework in the March draft: ‘these are only details. Because, today, what concerns me the most is the problem of survival. And that very much depends on whether or not Ukraine will have its own constitution before the elections in Russia’.54 Paradoxically, by the end of Kuchma’s first term in office, Holovatyi became one of the most ardent critics of the incumbent’s use of his presidential prerogatives. As long as the system of soviets was abolished and the principle of separation of powers was upheld in the constitution the specific presidential powers were open to negotiation. The Right’s willingness to accommodate presidential demands on the form of government rose proportionally to its perception of the difficulty in mustering a constitutional majority for the articles on the language, symbols and the Preamble. As a result, when on 28 June 1996 the president decreed on taking the March draft to a referendum, some of the national-democrats faced a conundrum: while overall they preferred the Syrota draft to the March draft, they were undecided over whether to back the president’s bold (and unconstitutional) move or to continue the search for a compromise within parliament. Unable to work out a coherent strategy, the bloc remained divided during the constitutional night. In effect, the head of Rukh—Viacheslav Chornovil— abstained from the voting in the pivotal second reading.

  • 55 Ibid.

59Like all other collective actors involved in constitution making, the right wing faced the problem of internal dissent. Some nationaldemocrats refused to support the president at any cost. Several deputies in Derzhavnist’ (the members of the Ukrainian Republican Party) left their faction in protest at the pro-presidential stance of other members. Nevertheless, the opponents of Kuchma were in a minority amongst the national-democrats. With truly revolutionary fervour, Rukh’s leader, Viacheslav Chornovil, called for unity, and outlawed any dissent: ‘The next few months will be decisive for the fate of Ukraine. In a struggle between imperialism and independence, communism and civilisation there is no room for “free critics” in opposition to anybody or anything’.55 Although the faction Reformy, which grouped younger deputies with liberal leanings, was far from unanimous in its support of the March draft, nevertheless, it also conceded that the urgent adoption of the Basic Law was of the highest priority for Ukraine.

60Overall, in terms of preferences, as long as the system of soviets was abolished, the actual powers of the presidency were considered ultimately of the less importance than the ‘national’ credentials of Ukraine (the state language and symbols, and the definition of the political community as the ‘Ukrainian people’). This made it possible for the majority of the national-democrats to co-operate closely with the president, and despite being in a minority to ensure that the ‘national question’ was resolved in line with their preferences.

THE CENTRE

61The motives and strategies of the centrist factions during the final stages of the constitutional process differed so widely that only a broad generalisation can be provided, despite the large numbers of centrist deputies. After the elections, many independent deputies, mainly from Left bank constituencies with loose or no ideological affiliation, grouped around the leftist bloc attracted by its sheer size, and the fact that the centrists had little in common with the nationalist right wing. After noting that Kuchma’s presidency was decisive, pragmatic, and free of ideological phraseology, they loosened their links with the Left and became more inclined to support the reformist camp, although not necessarily sharing the president’s views on the form of government. Overall, the majority of the centrist factions were tentatively united in their preference for a devolution of power to the regions (most of all through the preservation of directly elected oblast councils), a parliament- centred form of government and the inclusion of the right to private property in the constitution. They opposed strengthening the presidency at the expense of the emasculation of the Supreme Council and the cabinet of ministers. In particular, the preservation of the unicameral legislature generated almost a uniform support. Yet while supporting a more parliamentary system, the centrists did not favour the restoration of the ‘arch-parliamentary’ system of soviets. This combined with their support for private property put them in opposition to the communists.

  • 56 According to Oleksandr Reimer, Senior Consultant in the Department of Internal Affairs of the Pres (...)

62Nevertheless, despite some shared preferences, there was little unity amongst the centrist factions. In the case of the ‘Centre’, its affiliation with the cabinet of ministers dictated its loyalty to the president. However, they were divided on the national question. The Inter-Regional Group of Deputies (MDG)—with its many deputies from Crimea—was united in its opposition to Ukrainian becoming the only state language, and to national symbols. It supported granting far-reaching powers to the Crimean Autonomous Republic. The MDG’s position threatened the compromise within the conciliatory group as it was at loggerheads with Rukh and ‘Statehood’ over the ‘national question’. Yet the MDG lacked a clear stance on other issues.56 Other factions, such as the ‘Social Market Choice’, ‘Independents’ and ‘Unity’, which represented the Russophone regions of Ukraine, remained divided on the ‘national question’. Significantly, despite representing mainly Russophone regions, the centrists did not create a supra-factional coalition on the language question. Remaining loose groupings out of convenience, the centrist factions did not adopt a coherent set of preferences and pursue them. Often two deputies representing the same centrist faction voted differently in the Syrota group and commission. Despite the fact that the centrists overwhelmingly agreed on the need for a new constitution, their motives and priorities remained volatile and unpredictable, which impaired their chances of becoming a leading force in the process.

  • 57 The MDG, the ‘Independents’, and the ‘Social Market Choice’ proposed an interpretation of the Regl (...)

63Moreover, even when members of the centrist factions showed some initiative, they were prevented from playing a constructive role (in the early stages) in forging a compromise, as neither of the ideological blocs trusted them.57 The national-democrats in particular feared the potential alliance between the Left and centrists on the ‘national question’, which would allow the changes to the articles on Crimea, the state language and national symbols to take place.

64However, despite being divided on many issues, once the president decreed on the constitutional referendum the centrists hardly needed any persuasion—for them the referendum was an unmistaken harbinger of the dissolution of parliament. To save the day, they took on the role of a mediator between the Left and Right in order to persuade them to abandon their ideological trenches. The centrists devised a strategy of coupling the most contested issues. For example, the articles on the national symbols were coupled with the chapter on the Crimean Autonomous Republic, as the Right opposed the ‘Crimean Republic’ and the Left opposed the ‘nationalist’ symbols. This provided the rightand left-wing deputies with an incentive to vote positively, so that a constitutional majority could be garnered on these issues.

  • 58 Author’s interview with Oleksandr Reimer, Senior Consultant in the Department of Internal Affairs (...)

65Overall, the sheer mass of centrists made them a critical component in parliament, accounting, as they did, for nearly half of all deputies. Yet they played a highly ambiguous role in the constitutional process. On the one hand, the fragmentation and weak organisation of the centre further hampered the constitutional process by compelling tedious and time-consuming negotiations not only between the president and parliamentary factions, but even between individual deputies.58 On the other hand, however, it was precisely the volatility of centrist deputies, which left room for manoeuvre between the two hostile ideological blocs, and so allowed the constitution to be adopted despite all the odds. The threat of a referendum only reinforced the centrists’ propensity to compromise. Nevertheless, no overall discipline, apart from the final vote on the constitution, was ever worked out in this bloc. Ultimately, the centre’s weak organisational structures and nebulous ideological commitments meant that it punched below its weight in terms of shaping the content of the constitution, despite some gains in balancing out the powers of parliament and president. The constitution process turned into a zero-sum game between the president and national-democrats on the one side, and the left-wing factions on the other.

CONCLUSION

66While the matrix of preferences (such as presented in Table 5.4) gives an overview of preferences, it does not reveal the internal hierarchy of preferences from the actors’ point of view. During constitution making in Ukraine, the existence of such hierarchies was fully recognised by the participants themselves. In their own words, there were ‘issues of principle’ (pryntsypovi pytannia) and ‘political issues’ (nepryntsypovi/politychni pytannia). While the former were concerned with various types of interest and such were open to at least some negotiation and bargaining, the ‘issues of principle’ denoted the deepest normative convictions, which could not be the subject of bargaining and trade-offs. These ‘internal’ hierarchies of preferences that provide vital clues in accounting for strategies that each of the key actors resorted to in the constitutional process.

  • 59 Carl Schmitt, The Concept of the Political (Chicago and London: The University of Chicago Press, 1 (...)
  • 60 Gianfranco Poggi, The Development of the Modern State: A Sociological Introduction (London: Hutchi (...)

67For the national-democrats, the ‘historically correct’ definition of the nationhood mattered more than the prerogatives of parliament. In a similar vein, the hard-line Left risked the dissolution of parliament in which they were represented, rather than concede to the ‘nationalistic’ state symbols. During the constitutional night, it was not the institutional prerogatives which jeopardised the compromise (indeed, the articles on the form of government were hardly changed at all), but the highly emotional questions of collectivity and its attributes, which overshadowed the issue of the division of powers and threatened the constitutional compromise. The deeply held beliefs of the national-democrats or the communists proved largely impervious to rational calculations of personal and group institutional advantages. The Right and Left clung to an exclusive, absolute style of thinking, which can be best conceptualised by Carl Schmitt’s notion of the ‘politics of us against them’. The national-democrats viewed the Left as the fifth column of the external ‘foe’, the imperialist forces in Russia. With the ‘foe’ being defined in a sweeping way (even if only part of the Left actually questioned the legitimacy of the new polity), the threat to the state’s integrity and sovereignty was perceived as imminent. The defence of collective integrity against ‘the other’ became the highest political order.59 Until the polity was fenced off from the endangering forces, Easton’s politics of ‘who get what, when, and how’ (even if in the constitutional process this meant the redistribution of kompetentz) could not be casually resumed.60 Thus, for some of the national-democrats the division of powers between the presidency and legislature remained ‘only details’.

  • 61 Author’s interview with Vasyl Kostytskyi, member of the ‘Reforms’ faction, Kyiv, September 1996.

68However, the politicisation of constitution making with its juxtaposition of deeply held ideas, institutional and personal interests ultimately provided a framework for the mediation between two opposing visions of the polity. The less ‘ideologised’ actors, the president and the centrist deputies, who were primarily driven by institutional and/or group interests, intersected the ideological blocs. In particular, the involvement of the centrist factions explains the propensity to organise conciliatory groups, which greatly facilitated the compromise reached on the constitutional night. Their efforts to force the national-democrats and the Left to renege on their ‘issues of principle’ required, as one participant put it, ‘Such diplomacy takes place only once in a lifetime’.61

69The final factor, which accounts for the outcome, was the institutional context in which constitution drafting took place, characterised by the presence of two directly elected representatives of the electorate with competing claims to popular legitimacy. Throughout most of the process the main cleavage cut across institutions and ran between the ‘restorationists’ and the ‘reformers’: the parliamentary centre-right sided with the president (albeit rather tentatively and reluctantly in the case of some centrists). However, the presidential decree on the referendum radically shifted the cleavage so that it began to run between the institutions: the parliament and the president. Undoubtedly informed by the Russian example, the deputies, especially from the centrist factions, recognised that the costs of embarking on confrontation would be too high to incur for them personally and for the country at large. The fate of the Supreme Council (and their careers as deputies) was at stake, and the consequences of a failed referendum were hard to predict and could be potentially disastrous indeed: a spiral of conflict between the Supreme Council and the president. The prospect of aggravating political tensions and even a fear of civil war created pressure to settle the conflict. Under such conditions a ‘compromise’ and eventually a constitutional majority were attained. By exerting pressure on the parliament, the president achieved his main aims. Yet, nevertheless, the parliament was able to preserve its status as an autonomous institution.

70To this end, the shifting and cross-cutting ideological and institutional cleavages explain the fact that despite its content, the constitution was passed by a constitutional majority in parliament as ‘a lesser evil’. The long-standing line of conflict (prior to the presidential decree) determined the text of the constitution, which—to a large extent— excluded the views of the Left. It provided for a strong presidency and incorporated the national-democratic resolution on the ‘national question’ (see chapter 7). However, the passage of the constitution took place in a radically different context: the president and parliament were at loggerheads, and the president was determined to bring in ‘the people’ as the arbiter in the intra-elite conflict. To prevent such a scenario, the pro-presidential constitution was adopted ‘against’ the president, not so much by the national-democrats, as by the centrists and the moderate left, that is the Socialists and Peasants.

71Undoubtedly, the politico-ideological cleavages characterised by a deep-seated mutual distrust and an a priori rejection of compromise resulted in an antagonistic style of politics. However, a collorary of the ideological nature of the conflict was the fact that, despite the lack of recognised rules, the stringent procedural legitimacy was respected within parliament (i.e. each individual article of the constitution was approved by the two-thirds majority). On the one hand, the mistrust between the Left and Right made them insist on an adherence to high procedural requirements in order to prevent being outmanoeuvred by the ideological ‘foe’. On the other hand, with no shared set of values, there was no other principle validating the new constitution apart from the procedural legitimacy derived from the achievement of the constitutional majority.

Notes

1 The institution of the presidential representative at the regional and local level was abolished in law ‘On the Formation of Local Power and Self-Governing Organs’. See Holos Ukrainy, 16 February 1994.

2 There were some debates on the Constitutional Assembly, as the optimal institution to pass the new constitution, but it was never considered seriously. For arguments in favour of the Constitutional Assembly see, Anatoliy Tkachuk, 'Noviy derzhavi novu 222 The Moulding of Ukraine konstytutsiu (The New Constitution for the New State)', Polityka i Chas, No. 10 (October 1995), pp. 30–7. The major impediment was a lack of agreement on the mode of formation of the Assembly (elections or appointment).

3 The idea of the law originated in early 1994, when during a meeting of the Constitutional Commission Kravchuk proposed the adoption of a ‘Law on Power’ as a ‘Little Constitution’ until a new one was adopted. At that time, the proposal was discarded and no further action was taken. See the Materials of the Round Table organised by the Ukrainian Legal Foundation in December 1994.

4 See Volodymyr Lytvyn, Politychna arena Ukrainy (The Political Scene of Ukraine) (Kyiv, 1994), p. 275.

5 Due to the above-mentioned defects of the electoral law such as the requirement of 50 percent turnout and a 50 percent 'winning threshold' (see chapter 5).

6 According to the original draft (December 1994) the president would have the right to resolve parliament, if parliament rejected the budget law submitted by the cabinet of ministers twice or rejected its programme twice.

7 If anything the commission proposed a streamlined form of government, that is a pure presidential model, in which there was no post of the prime minister and the cabinet of ministers was directly subordinated to the president. The president, however, demanded restoration of the post of prime minister.

8 The results of the voting were: 221 in favour, 103 against and 17 abstained (Ukrainska Perspektyva, No. 1, 1995).

9 Kuchma’s address to the nation, Holos Ukrainy, 2 June 1995, p. 2.

10 The decree was published in Holos Ukrainy, 2 June 1995, p. 2.

11 The notion was put forward by two lawyers, Serhiy Holovatyi and professor Leonid Yuz’kov, in December 1994, who believed that with no prospects for a constitutional majority in parliament, the impasse could lead to ‘undesirable tragic results as in Russia in October 1993’. The authors expressed a hope that: ‘there is a Russian version, and there could be a Ukrainian way of searching for agreement’. Materials of the Round Table on Constitutional Agreement held at the Ukrainian Legal Foundation on 14 December 1994.

12 Four months after the signing of the Constitutional Dohovir around 10 deputies requested that their signatures under it be crossed out. (Author’s interview with Roman Bezsmertnyi, member of faction ‘Statehood’, Kyiv, November 1995.)

13 According to the Dohovir, the heads of the oblast and regional level simultaneously performed functions of heads of state administration, and, as such, were subordinated to the president. In the November draft, however, these functions were separated and the head of state administration existed alongside the directly elected heads of councils.

14 The sub-commission included 4 parliamentary, 4 presidential representatives and 2 of the ‘judicial branch’. It could be argued that the composition of this working subcommittee was the most decisive movement in the constitutional process. The first choice of the representatives of the Supreme Council were Volodymyr Stretovych, Serhiy Hmyria (Communist), Mykola Dudchenko (Agrarian faction), and Volodymyr Marchenko (Socialist). As the latter refused to participate on ideological grounds, he was replaced by Ivan Zaiets (Rukh). The group adopted rules that 7 out of 10 in favour were needed to pass a decision. Zaiets with strong nationaldemocratic views sided with 4 presidential and 2 judicial representatives, and his vote was crucial in the final approval of the draft by the working sub-committee. Au6. The Passage of the Constitution 223 thor’s interview with Volodymyr Stretovych, the Head of the Commission on Legal Polity and Reform, Birmingham, November 1996.

15 Between November and March, the mode of elections was changed. The Senate was to be elected in direct elections. However, as was pointed out above, the main candidates in direct elections tended to be regional state officials, who according to the draft would be nominated by the president. Thus, the Senate would still be likely to consist of individuals dependent on the president.

16 Only the ruling of the Constitutional Court, which was to be nominated by the Senate and president, could suspend presidential decrees.

17 Holos Ukrainy, 3 February 1996.

18 It was published in Uriadovyi Kurier, 21 March 1996.

19 According to the 1978 constitution, any changes to the Fundamental Law lay exclusively within the competencies of the Supreme Council and require a qualified majority of two thirds. The Dohovir, in turn, stated that the text of the draft constitution agreed between the president and parliament would be subject to a referendum. As the meaning of the ‘agreed text’ was unclear, it was widely interpreted by the rightcentre as having to be first passed in parliament; however, there was also no consensus as to whether the term implied a simple or constitutional majority. The communists emphasised the binding power of the Concept of the New Constitution adopted in 1991, according to which the form of government, the socio-economic system, the symbols and the name of the state would be decided in a referendum. (Kommunist, No. 17, April 1996, p. 1).

20 There were several alternative drafts including one proposed by the Communist faction and the 1993 draft proposed by a social-democratic deputy. On the alternative drafts see Volodymyr Butkevych, 'Proiekt Konstytutsii Ukrainy u Verkhovnii Radi (Draft Constitution in the Supreme Council)', Nova Polityka, No. 3(5) (May–June 1996), pp. 10–19. The Christian-Democratic Deputies presented their draft in Holos Ukrainy, 16 March 1995, p. 3. According to Butkevych, either the status or authorship of those alternative drafts was unclear. See The Rukh Insider, Vol. 2, No. 4, 25 March 1996 and Butkevych, ‘Proiekt Konstytutsii Ukrainy u Verkhovniy Radi’, p. 12.

21 The Left was only 2 votes short of the number needed to reject the March draft at the very onset of its consideration in the Supreme Council (Ukrainske Slovo, 5 May 1996).

22 In a survey in the Supreme Council only 82 deputies (Rukh and Derzhavnist members featured prominently on the list) supported the bi-cameral legislature. Chas–Time, 29 March 1996, p. 3.

23 Unable to make much impact on the work of the Commission, the communists ‘revised’ their own draft constitution, which they had proposed in March 1996, by taking the draft of the Commission and grafting onto it their main constitutional preferences.

24 Kommunist, No. 24, June 1996, p. 3.

25 The decree was in breach of the Dohovir, which stipulated the rules for setting up a referendum specified in the ‘Law on National and Local Referenda’. According to the law, the president could call for a referendum if at least half of deputies voted in favour.

26 Markian Bilynskyi, ‘Finally, a constitution is born’, The Ukrainian Weekly, 7 July 1996, p. 2.

27 As one of the deputies involved in the constitutional process commented ‘the presidential side was only interested in 3–4 chapters of the constitution, dealing with the system of government’. Kuchma was essentially interested in the chapters on ‘The Presidency’, ‘the Supreme Council’, ‘the Judicial System’ and ‘the Cabinet of Ministers’. Interview with Serhiy Soboliev, head of faction ‘Reforms’, Kyiv, September 1996.

28 Demokratychna Ukraina, 23 March 1996, p. 1.

29 Many of the lawyers shared Kuchma’s belief in the merits of the ‘Law on Power’. For example, Volodymyr Shapoval, one of the authorities on constitutional law argued, ‘the people who write the constitution, should follow the content of the “Law on Power”. We can assume that it is a ready-made chapter for the new constitution’. Uriadovyi Kurier, 16 May 1995, p. 7.

30 For example, the Department of Internal Affairs in the Presidential Administration worked full time on the passage of the constitution and more appointments were made. Oleksandr Yemets’, a skilful politician, was appointed as vice-prime minister in charge of Politico-Legal Affairs whose portfolio effectively meant ensuring ‘the passage of the constitution’ by lobbying factions and individual deputies.

31 Prime minister Lazarenko arranged a meeting of the cabinet of ministers away from Kyiv at the Cherkasy Spirit Distillery (sic). Nevertheless, some of the ministers—sumisnyky were present in parliament during the constitutional night. In order to severe their links with the Presidential Administration, telephones were switched off in the governmental section in the plenary hall. Artur Bilous, ‘Do i pislia Konstytutsii (Before and after the Constitution)’, Nova Polityka, No. 3(5) (May–June 1996), p. 5 and author’s interview with Serhiy Soboliev, Kyiv, September 1996.

32 Thus, the media, which were controlled by the executive branch, launched a campaign designed to erode the already low level of public support for the Supreme Council. Also, the influential Council of Regions worked on ‘raising public awareness on the constitutional question’ at the local level. The Ukrainian Weekly, 5 May 1996.

33 Interview with Oleksandr Moroz, Visnyk programy spryiannia Parlamentovi Ukrainy (Newsletter of the Parliamentary Development Programme), No. 7, June 1997, p. 12.

34 Holos Ukrainy, 26 December 1995. See also the views of the radical communist, Volodymyr Moisieienko in Holos Ukrainy, 3 February 1996, p. 3.

35 Kommunist, No. 24, June 1996, p. 3.

36 Kommunist, No. 11, March 1996, p. 3.

37 Kommunist, No. 17, April, 1996, p. 3.

38 Author’s interview with member of the Socialist faction, Mykola Lavrynenko, Kyiv, November 1995. See also the views of Petro Symonenko—the leader of the CPU—in Kommunist, No. 17, April 1996, p. 3.

39 Kommunist, No. 24, June 1996, p. 3.

40 Demokratychna Ukraina, 21 May 1996, p. 1.

41 Kommunist, No. 13, March 1996, p. 1.

42 See The Rukh Insider, Vol. 2, No. 4, 25 March 1996. As the Left did not register there was no quorum to open the debates. This method, called ‘constructive destruction’, was first used by the national-democrats in order to block the Left getting its way in parliament in 1994.

43 In particular, the socialists were in favour of a weak presidency, but not the abolition of the institution. Unlike the communists, they supported limited privatisation of the means of production, so-called small privatisation. As a hard-line communist deputy commented: ‘They [socialists and peasants] argue that they cannot support the Communist Party and that we have to become more progressive’. (Authors’ interview with Volodymyr Masenko, member of the communist faction, Kyiv, November 1995.) 6. The Passage of the Constitution 225

44 Demokratychna Ukraina, 21 May 1996, p. 1.

45 Author’s interview with Roman Bezsmertnyi, Kyiv, September 1996.

46 Kommunist, No. 6, February 1996, p. 1.

47 However, only approximately 20 percent of all deputies favoured the restoration of the USSR and the abolition of the sovereignty of Ukraine. The ranks of the most hard-line ‘internationalists’ included the head of the CPU, Petro Symonenko.

48 The Ukrainian Weekly, 31 December 1995, p. 21.

49 Rukh’s petition to the president was published in Chas-Time, 15 March 1996, p. 1.

50 Molod’ Ukrainy, 22 March 1996, p. 2.

51 Author’s interview with Oleksandr Reimer, Senior Consultant in the Department of Internal Affairs of the Presidential Administration, Kyiv, July 1997.

52 Molod’ Ukrainy, 28 June 1996, p. 1. Such an alliance would be possible if the rules for the passing of the constitution were changed in line with the suggestion of the centrist factions, that is, that a simple majority would be enough to pass individual articles in the second reading, and in the third reading the constitution would be voted on ‘as a whole’. As the Social Market Choice, Yednist, Nezalezhni and MDG were split on the issue, they were more likely to vote together with the left-wing factions.

53 This was one of the questions that divided the president and the national-democrats. Another was article 17.7 forbidding the stationing of foreign military bases on the territory of Ukraine. While the constitution was drafted, the president was involved in negotiations on the Friendship and Co-operation Treaty with the Russian Federation, and the issue of the base for the Russian part of the Black Sea Fleet in Sevastopol was one of the major bones of contention. Thus, Kuchma categorically refused to accept art. 17.7. See Materials of Temporary Extraordinary Commission on the Preparation the Draft Constitution, Minutes of the Meeting on 18 and 24 June 1996.

54 The Ukrainian Weekly, 17 March 1996.

55 Ibid.

56 According to Oleksandr Reimer, Senior Consultant in the Department of Internal Affairs of the Presidential Administration, there was no stable leadership in MDG as the official head of the faction controlled only approximately one third of members of the faction. Author’s interview with Oleksandr Reimer, Kyiv, July 1997.

57 The MDG, the ‘Independents’, and the ‘Social Market Choice’ proposed an interpretation of the Reglament (Rules of Procedures), which would lower the voting threshold in order, speed up the ratification process in the second reading. Each article was to be approved by a simple majority and only the final vote for the constitution as a whole would require a two-thirds majority. Yet, entrenched in their opposition both the Right and Left rejected this proposal fearing that the simplification of rules would benefit its opponent.

58 Author’s interview with Oleksandr Reimer, Senior Consultant in the Department of Internal Affairs of the Presidential Administration, Kyiv, July 1997.

59 Carl Schmitt, The Concept of the Political (Chicago and London: The University of Chicago Press, 1996).

60 Gianfranco Poggi, The Development of the Modern State: A Sociological Introduction (London: Hutchinson, 1978), pp. 5–9.

61 Author’s interview with Vasyl Kostytskyi, member of the ‘Reforms’ faction, Kyiv, September 1996.

Table des illustrations

Titre Table 6.1. Breakdown of Voting on the Constitutional Agreement (7 June 1995)
URL http://books.openedition.org/ceup/docannexe/image/1743/img-1.jpg
Fichier image/jpeg, 66k
Titre Table 6.2. Breakdown of the Ukrainian Parliament (May 1996)
URL http://books.openedition.org/ceup/docannexe/image/1743/img-2.jpg
Fichier image/jpeg, 68k
Titre Table 6.3. Voting Results from the Adoption of the Ukrainian Constitution (28 June 1996)
URL http://books.openedition.org/ceup/docannexe/image/1743/img-3.jpg
Fichier image/jpeg, 88k

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