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The Moulding of Ukraine

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Kataryna Wolczuk

Chapter seven. Ukraine as a nation-state: the conception of statehood in the 1996 constitution

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1The new 1996 constitution finally provided a blueprint for the Ukrainian state: it described the new polity in institutional, territorial, national and socio-economic terms. Firstly, it established the parameters of the ‘political community’ by defining the nature and attributes of the ‘nation’. Secondly, the political framework of the state—the institutions, rules and procedures—was specified both between the branches of power at the centre and at the sub-national level. Thirdly, by deciding the status of private property and the role of the state in the socioeconomic sphere, the socio-economic profile and goals of the state were established. The purpose of this chapter is to analyse the conception of statehood that was embedded in the new constitution of Ukraine. Each of the three clusters of issues will be examined in more detail in order to highlight the extent to which different conceptions of statehood found their way into the constitution. The chapter will illuminate how the document reflected the overarching imperative of the consolidation of the Ukrainian state. This agenda, however, detracted attention from the need for detailed, legalistic scrutiny of the Basic Law, especially in the sphere of institutional design, something that proved to have dear consequences for the quality of institutional interactions, that is the development of the ‘political constitution’.

THE POLITICAL COMMUNITY

  • 1 Claus Offe, ‘Capitalism by Democratic Design’, Social Research, Vol. 58, No. 4 (Winter 1991), p. 8 (...)
  • 2 See, for example, Margaret Moore, ‘On National Self-determination’, Political Studies, Vol. XLV, N (...)

2As argued above, constitutions in new states, in addition to the goal advocated by liberal constitutionalism, such as the creation of instruments of governmental accountability and the protection of human rights and liberties, have more fundamental functions, such as defining the political community and establishing a collective identity. As Offe points out ‘at the most fundamental level a “decision” must be made on who “we” are, i.e. on identity, citizenship, and the territorial as well as social and cultural boundaries of the nation-state’.1 International practice has not been much of a guide. Since 1918 new states have invoked a powerful Wilsonian doctrine of self-determination to justify the formation of new polities. Taking into account the diversity within Western tradition, the type of collectivity, which can legitimately exercise the right to self-determination, has never been satisfactorily defined in international law and practice.2 This question—the most fundamental for any polity—thwarted the progress of the constitution-making process in Ukraine, as radically different concepts of the political community prevailed in the constitutional debates.

  • 3 The Preamble is an introductory passage of the constitution, often written with pathos and explain (...)
  • 4 The national-democrats insisted on the so-called right of people to rise up to defend the state (p (...)

3Nevertheless, despite the deeply polarised views held by the Left and Right, the definition that was finally hammered out in the first sentence of the Constitution’s Preamble, ‘The Ukrainian people—citizens of Ukraine of all nationalities’, seemed to reconcile the difference in a compromise which satisfied both protagonists.3 The national-democrats incorporated the sacred concept of ‘Ukrainian people’, while the polyethnic composition was alluded to in ‘citizens of all nationalities’. The two concepts of nationhood— civic and ethnic—were synthesised by stating that the right to self-determination was exercised by the eclectic ‘Ukrainian ethnic nation (natsiia), all-Ukrainian nation (narod)’. Being wider than natsiia, Ukrainskyi narod made it possible to encompass ‘citizens of all nationalities’. Yet, the role of the Ukrainian natsiia as the nucleus of the ‘Ukrainian people’ is reflected in a number of the constitutional provisions, such as article 11 which obliges the state ‘to support the consolidation and development of the Ukrainian natsiia, its historical consciousness, tradition, and culture’.4 In particular, the symbiotic link between the Ukrainian natsiia and the state emanates from the norms on the state language and symbols.

4The provisions on the state language turned into a battleground for the assertion of the Ukrainian credentials of the state and the circumvention of the dominance of Russian. Although none of the official draft constitutions between 1992–-1995 granted Russian official status, in the final text Ukrainian was declared the sole state language, while Russian (despite being explicitly referred to in the constitution) was defined only as the language of the Russian minority. Paradoxically, this was an unintended consequence of the Left’s insistence on enhancing the position of Russian. The March 1996 draft envisaged that:

In areas of dense population of citizens of one or several national minorities, the language accepted by the majority of the population of a certain location may be used in the activities of bodies of state power and state organisations, along with the state language (art. 10). (emphasis added)

5This was in line with the progressive Declaration of the Rights of Nationalities of November 1991, according to which Russian could become the language of the local administration, if it was used by the majority of the population (and presumably not necessarily only ethnic Russians—see chapter 3). In other words, the March draft opened the door for the effective recognition of Russian in the public sphere at the regional level, especially in Eastern and Southern Ukraine, where this language dominated. Still, the Left remained unsatisfied and demanded more explicit recognition of, and guarantees for, the status of Russian to outlaw potential acts of forced linguistic Ukrainisation in Russophone regions.

  • 5 Article 13 in the Ukrainian language original text actually reads ‘the free development, use of an (...)
  • 6 A national-democratic deputy, Roman Bezsmertnyi, commented on such an outcome: ‘The Left must have (...)

6In comparison with the March draft, the final June version of the constitution, although more vague, and thus open to various interpretations, turned out to be a Pyrrhic victory for those who sought to upgrade the status of Russian language. The Ukrainian language remained the only state language, while ‘the free development, use of and protection of Russian, [along with] other languages of national minorities of Ukraine, is guaranteed’ (art. 10).5 While the left-wing’s demand for the inclusion of the word ‘Russian’ in the article was satisfied, the status of Russian was effectively reduced to that of a language of the Russian minority. Moreover, the same article stipulates that the state ‘ensures the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory of Ukraine’ (emphasis added). In other words, Russian can develop freely, yet Ukrainian has to be promoted by the state.6 The constitution defined the aims of the state in the sphere of language as a progressive Ukrainisation of public life. The highly contentious issue of language policies shifted into the sphere of constitutional obligations and, thus, became immune to the vacillation of day-to-day politics at the level of central, and especially, regional governments. This was reflected in the controversial ruling of the Constitutional Court on the interpretation of article 10 in December 1999, which confirmed the role of Ukrainian in public sphere by obliging state officials to use the language in the conduct of their duties.

7In a similar manner a compromise on state symbols emerged: the flag, emblem and anthem, despite some concessions to placate the Left, reflected the preference of the Right. While the ‘blue-and-yellow’ flag was approved relatively smoothly during the constitutional night, the emblem stirred immense controversy. The search for an acceptable, non-aggravating formula is reflected in the elaborate wording of article 20, which avoids the word ‘trident’ at all cost:

The Great State Emblem of Ukraine shall be established with the consideration of the Small Emblem of Ukraine and the Emblem of the Zaporizhian Host, by the law adopted by no less than two-thirds of the constitutional composition of the Supreme Rada of Ukraine.
The main element of the Great State Emblem of Ukraine is the Emblem of the Royal State of Volodymyr the Great (the Small State Emblem of Ukraine).

  • 7 However, as by end of 1998 no suitable lyrics were submitted, it was decided to retain the first p (...)

8Yet, the trident, disguised as the Small State Emblem of Ukraine, became the state symbol of Ukraine. In their only major concession to the Left, the Right agreed to drop the ‘provocative’ text of the national anthem ‘Ukraine Has Not Yet Perished’ (Shche Ne Vmerla Ukraina), which alludes to Moskali (a derogative term for Russians) though retaining the original Verbytskyi score. The new lyrics of the anthem were to be decided by competition.7 To this end, the iconographic symbols and vocal representation of the Ukrainian state were derived from the historical, cultural reservoir of the titular majority.

  • 8 Moreover, art.138.9 refers to ‘the development and implementation of state programmes for the retu (...)

9Nevertheless, while asserting the role of the titular majority through language and symbols, the constitution also granted collective minority rights to indigenous people (korinni narody) and national minorities: ‘the state … guarantees ethnic, cultural, linguistic and religious self-preservation (samobutnist) of all indigenous nations and national minorities of Ukraine’ (art. 11). Article 10 states that, beside Russian, free development of ‘other languages of the national minorities’ is guaranteed in Ukraine and the extensive rights to education in minority languages are listed in article 53. Moreover, in places of the compact residence of indigenous people and national minorities, the state administrations are to ‘ensure that programmes for their national and cultural development are implemented’ (art. 119.3).8 Nevertheless, while the constitution upheld collective minority rights, Ukraine’s stance on this issue has evolved between 1990–1996 from a vague but explicit promise of territorial autonomy in the 1991 ‘Declaration of Minority Rights’ to a narrower right to cultural autonomy (although still in line with ‘European standards’).

  • 9 Walker Connor, Ethnonationalism: the Quest for Understanding (Princeton University Press: Princeto (...)
  • 10 Louise Jackson and Kataryna Wolczuk, ‘Defining Citizenship and Political Community in Ukraine’, Th (...)

10Ukrainians are not depicted as the ‘sole owners’ of the state and national minorities have been recognised as ‘state-constituting communities’, as expressed in the first sentence of the constitutional Preamble. As the constitution does not imply that political and national identities have to be congruent, it allows a divergence between ethnicity and citizenship. However, in Connor’s terms, Ukraine was conceived as a ‘uni-homeland, multi-national state’: inhabited by many ethnic groups but homeland of the titular majority—Ukrainians.9 The term ‘people’ (Ukrainskyi narod) consists of several components: the Ukrainska natsiia (ethnic Ukrainian nation), korinni narody (indigenous minorities with no homelands outside Ukraine), and other national minorities (ethnic groups which have their respective homelands outside Ukraine). The emergent hierarchy of constituent communities differentiates between the ‘more’ and ‘less’ indigenous groups (and ethnic Ukrainians belong to the former), and the rights and citizens depend on their degree of ‘indigenous’ attachment to Ukrainian land.10

  • 11 Ibid.

11Such a multi-layered construction of political community may have diverse implications for various groups in society, especially those that do not fit into any of the categories of the constituent communities sanctioned in the constitution. While the ethnic factor has been given full accreditation, the ethno-linguistic category of Russophone Ukrainians, which cut across constituent ethnic communities (ethnic Ukrainians and Russians), has not been granted constitutional recognition. Because they cannot be regarded as a minority, Russian-speaking Ukrainians, who account for at least one third of the population, were denied the constitutional right to demand the provisions to ensure the use of Russian in the public sphere (even if in everyday life Russian prevails in Ukrainian oblasts east of the Dnieper).11

  • 12 However, religion was not recognised as one of the defining attributes of a political community. A (...)

12While the concept of the ‘Ukrainian people’ incorporates both civic/territorial and ethnic criteria, the weight of respective ‘elements’ in this precarious, but not untypical, juxtaposition remains unclear. Each polity contains a variety of groups, which have distinctive needs and interests to be protected and promoted; the terms of recognition and accommodation of diversity in the constitutional framework vary enormously. Even if the constitution implies nation building through the homogenisation of the titular ethnic majority by rallying around symbols and language,12 the practical implications of the constitutional norms are still to be determined.

13The competing pressures, on the one hand, to create a pluralistic multi-cultural Ukrainian political community, and on the other, to assert the ‘leading role of the titular majority’ have moulded the concept of the political community in the new constitution. This community was constructed as a hierarchical framework of ethnic communities with differentiated rights. The struggle of constitution makers with the ‘national question’ underscores the difficulties of justifying ‘national self-determination’ according to which ‘the state should be constituted as a nation’ in a multi-ethnic society. As no notion of a ‘unitary people’ existed in Ukraine, the constitution created the ‘people’ as an indispensable element of a nation-state. As an ethusiastic journalist explained the significance of the new constitution:

  • 13 Vechirniy Kyiv, 2 July 1996, p. 1.

We have the “Ukrainian people”, and not the “people of Ukraine”, we have the State blue-and-yellow flag, State Emblem—Trident, and State Anthem (even if only music), the State Language (although with some concessions in favour of the language of the big brother). All this allows us to assert that an independent, Ukrainian nation-state was constitutionalised, or, if you want, canonised.13

14Overall, the ‘national question’ proved the most vexed in the constitutional process. It led to dramatic tensions, which overshadowed the constitutional debate from the outset and remained a bone of contention until the very night of the adoption of the constitution. It evoked emotions, which ‘reason’ could not easily subdue. The opposing stances, accompanied by deeply felt passions, prevented cool-headed bargaining and a satisfactory compromise. When the ‘national question’ emerged as the very last point of dispute during the final night, the antinationalist forces capitulated under the immense pressure to adopt the constitution. As a result, the constitution asserted Ukraine to be a nation- state implying homogeneity and uniformity, without an underlying consensus on what binds the citizens of Ukraine into ‘the people’ amongst the ‘founding fathers’.

PRIVATE PROPERTY, RIGHTS AND LIBERTIES

  • 14 While interpreting the article on private property as a defeat of the Left, Vadym Het’man anticipa (...)

15In the constitutional debates, the Left was adamant that the constitution offered protection of all (including collective) forms of property, and not only the right to private property, as the Right, president and the centrist factions insisted. Article 13 fully satisfied this demand ‘the state ensures the protection of the right to property and economic management of all subjects, as well as the social orientation of the economy’. All subjects of the right of property are equal before the law’. Moreover, the Left’s concern about capitalist exploitation was echoed in moralistic statements, such as ‘Property entails responsibility. Property shall not be used to the detriment of the person and society’ (art. 13). But despite this concession to the ‘socially responsible use of property’, the Left continued to oppose the constitutional recognition of the right to private property until the constitutional night. A compromise was only reached when the additional hurdle, that ‘the right of private property is acquired by a procedure determined by law’ (art. 41), was added, and ensured the crucial extra votes from the left wing. Although the final wording of the article was interpreted by each side differently,14 a basis for the transition to the market economy, however circuitous, was provided in the constitution.

16The communist-era constitutions were saturated with ‘negative’ liberties and rights such as freedom of speech, thought and association, which the regime repeatedly infringed. All post-communist constitutions extensively re-stated ‘negative’ rights, aiming to turn them into a meaningful instrument of protection against the government’s interference in the private sphere, in accordance with the normative directives of liberal constitutionalism. Accordingly, the Ukrainian constitution incorporated an array of human rights and political freedoms, including the right to life (art. 27), dignity (art. 28), privacy (art. 31), and personal freedoms of movement (art. 33), thought and speech (art. 34), personal philosophy and religion (art. 35), association (art. 36) and so forth. Not only was the list of rights and freedoms copied from the European Convention of Human Rights and Fundamental Freedoms of 1950, but so was the wording of some of the articles. There was hardly any disagreement on that issue. Also, a special institution was created, the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine, who exercises parliamentary control over the observance of constitutional human and citizens’ rights and freedoms (arts. 55 and 101).

17The communist constitutions were also renowned for their incorporation of an array of ‘positive’ socio-economic guarantees of housing, work, holidays, health care, free education etc., which placed a duty on the state to deliver socio-economic benefits. The new Ukrainian constitution did not depart from that tradition and is a lawful descendent of the 1978 constitution with its taxonomy of rights to: ‘a decent standard of living’ (art. 48), ‘an environment that is safe for life and health’ (art. 50), ‘work’ (art. 43), ‘rest’ (art. 45), ‘housing’ (art. 47) and so forth.

  • 15 K. C. Wheare, Modern Constitutions, 2nd ed. (London: Oxford University Press, 1966). p. 38.
  • 16 Of special interest is article 49 in the constitution which states that the existing health servic (...)
  • 17 For a criticism of their inclusion see Cass Sunstein, ‘Why Social and Economic Rights Don’t Belong (...)

18The preservation of such entitlements in post-communist constitutions has been criticised by Western, especially American, observers who adhere to the ideal of a minimalist constitution on the grounds that ‘If a government is to be effective, few rights of its citizens can be stated in absolute form’.15 Moreover, burdening the state with excessive commitments to socio-economic welfare is perceived as an obstruction in the transition to a market economy by authorising and legitimising the state’s interference with the market. Vaguely defined socioeconomic rights, i.e. to ‘a decent standard of living’, or to ‘safe environment’ are teleological statements which cannot be realistically enforced in the legal system.16 The saturation of the constitution with declarative statements and promises erodes its credentials as a legal document, which it has to become in order to properly perform its ‘limiting’ function defined in terms of liberal constitutionalism. Thus, being a vestige of the communist past, they merely devalued the role of the constitution as a marker of a genuine ‘fresh start’.17

19In such a context, the inclusion of socio-economic pledges in the new Ukrainian constitution suggested a victory for the opponents of the socio-economic transition to a market economy. However, while the Left staunchly opposed omitting the references to the ‘socialist achievements’, the Right not only did not push that hard to exclude them, but even added more ‘unenforceable’ pledges, such as the state’s duty to ensure ‘the preservation of historical monuments and other objects of cultural values and takes measures to return to Ukraine the cultural treasures of the nation that are located beyond its borders’ (art. 54). Although the Right longed for a ‘civilised’ constitution free of promises that cannot be realistically fulfilled, it did appreciate the symbolic dimension of such guarantees for society at large. (Also, as the Right was preoccupied with the ‘national question’, the issue of scaling down the socio-economic rights was assigned to a lower priority.) This opened the door to a relatively easy compromise. Thus, while positive, socioeconomic rights were preserved, the victory of the defenders of the ‘socialist achievements’ was more apparent than real.

  • 18 Giovanni Sartori, ‘Constitutionalism: A Preliminary Analysis’, American Political Science Review, (...)
  • 19 Daniel J. Elazar, ‘Constitution Making: The Pre-Eminently Political Act’, in Keith G. Banting and (...)
  • 20 Elster, Introduction to Constitution Making in Eastern Europe, p. 465.
  • 21 Ulrich K. Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, in Joachim (...)

20The Ukrainian constitution belongs to a family (together with many other post-communist constitutions) of what Sartori describes as ‘bad constitutions, technically speaking’, because ‘they have come to include unrealistic promises and glamorous professions of faith on the one hand, and numberless frivolous details on the other’.18 However, the ‘imperfection’ of the Ukrainian constitution is not accidental. As Elazar points out, a sketchy ‘frame-of-government’ constitution works best in political systems where there exists a basic consensus on the character of the polity.19 In ‘old’ states, ‘frame-of-government’ constitutions symbolised the advent of the rule of law, which enhanced the legitimacy derived from historical continuity. Their succinct constitutions were concerned with the machinery of government, bill of rights and the provisions for amendments.20 In the age of constitutions, the (secular) power of the modern state was derived from the procedural legitimacy, which became the reason used to justify the citizens’ duty to obey the state.21 However, the authority of the new states rarely rests solely on the procedural compliance of the fundamental law. The passing of procedural hurdles, however difficult they may be, is unlikely to elicit the commitment of the people to the new state of which they are citizens. Poggi, echoing the argument by Carl Schmitt, argues that:

  • 22 Gianfranco Poggi, The Development of the Modern State: A Sociological Introduction (London: Hutchi (...)

The motivating force of such a notion [procedural legitimacy] is relatively weak because it does not evoke a substantive ideal, a universally shared standard of intrinsic validity, but instead refers to purely formal, contentless considerations of procedural correctness.22

  • 23 As Preuss pointed out ‘there seems to be a significant correlation between the dearth of a long-st (...)

21In this context, a long taxonomy of positive and negative rights, freedoms and guarantees in the new Ukrainian constitution did not only reflect deep running ideological cleavages and a disagreement on the axiological foundation of the new state, but also a desperate search for a formula to bind and integrate society.23 To compensate for Ukraine’s fragile historical legitimacy, the new constitution contains an array of teleological aims, goals, aspirations, values and basic beliefs.

  • 24 Elazar, ‘Constitution Making’, pp. 232–448.
  • 25 Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, p. 102.

22As pointed out above, constitutions perform various functions in different polities and the content of the constitution should not be regarded as une idée fixe. According to Elazar, the constitution establishes and describes the triangular links between the ‘moral basis of polity’, ‘socio-economic map’ and the ‘frame of government’.24 The inclusion of a ‘socio-economic map’ should be viewed not in terms of efficacy, legality and rationality, but rather in terms of its integrative role. Preuss argued that placing ‘social fields of action’ under state protection can serve to compensate for the lack of an organic nation-state, as was the case in (post-war) Germany; constitutional pledges to socio-economic security and welfare consolidate the nation.25 Liberal, ‘negative’ constitutionalism cannot be easily transplanted onto, and take root in, arid soil; other ‘irrigative’ techniques have to be used to cultivate and nourish it. In Ukraine, hindered by a fragile popular legitimacy, the promise of the continuation (from the Soviet era) of welfare provisions, even if declarative and symbolic, was a much too vital link between the state and its citizens to be disrupted by excluding socio-economic entitlements from the constitution.

THE INSTITUTIONAL FRAMEWORK

INSTITUTIONS AT THE CENTRE

  • 26 The chapters describing the form of government resulted from deliberations in the constitutional c (...)

23The constitution, which finally dismantled the remnants of the system of soviets, did not transplant into Ukraine any particular tested foreign model. The configuration of powers between state institutions, although falling into the category of semi-presidential system, is novel. The form of government resulted from a contingency of forces. During six years of chronic tinkering with the division of powers, the form of government gradually evolved from the system of soviets to a system dominated by an executive presidency in the Dohovir (albeit with some hiccups in the final stages of Kravchuk’s presidency—see chapter 3). Undoubtedly, Kuchma’s driving role in constitution making paid off, as parliament sanctioned a strong presidency, although not to the extent the incumbent hoped for. Such a major leverage of power as the right to dissolve parliament was effectively denied to the president. However sceptical parliament was of its own ability to overcome its internal polarisation and work constructively, it stopped short of relinquishing all power to the president and introduced what was perceived as a number of ‘checks and balances’ into the early pro-presidential draft (November 1995). Therefore, the final six months of the constitutional process witnessed numerous ad hoc deletions, additions and revisions to the draft constitution, which account for a novel distribution (and, as it soon turned out, overlap) of institutional powers.26

24According to the Ukrainian constitution, ‘state power is exercised on the principle of its division into legislative, executive and judicial power’ (art. 6). The uni-cameral parliament is the ‘sole body of legislative power’ (art. 75), whereas the president is ‘the head of state’ and ‘guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens’ rights and freedoms’ (art. 102) and the cabinet of ministers is ‘the highest body in the system of bodies of executive power’ (art. 113), the judicial branch consists of courts of general and special jurisdiction, (Chapter VIII) as well as the Constitutional Court (Chapter XII).

25Semi-presidentialism, as enshrined in the constitution, combined with self-government at the local level, sounded the death knell for the institutional basis of Soviet narodovladia. In spite of its retained name, the Supreme Council lost the ‘supreme’ position it enjoyed in the system of soviets. As the powers of state institutions were ‘positively’ proscribed, the authority of parliament was delineated: it cannot take over or delegate prerogatives to other state institutions, such as the government or local councils, unless positively authorised to do so in the constitution. The parliament was transformed into a professional institution, in which deputies worked on a ‘permanent basis’ (art. 78). The ‘imperative mandate’ was replaced with a free, ‘representative’ mandate, and the instruments of direct democracy, such as referenda, were relegated to secondary importance vis-à-vis the representative institutions (in marked contrast to the 1991 Concept of the New Constitution where the former played a prominent role—see chapter 3).

  • 27 There have been some attempts to devise a measurement of presidential powers. Shugart and Carey di (...)

26According to the constitution, Ukraine has two agents of the electorate, the legislature and the president, but there is no fusion of head of state and head of government, something that is characteristic of pure presidential systems. Instead, the executive branch is bifurcated: the presidency co-exists with the cabinet of ministers. Despite being named the ‘head of state’, the actual powers of the president turn him into a chief executive rather than a figurehead limited to performing ceremonial functions.27

27According to the constitution, the authority of the Supreme Council includes the right to:

  • adopt laws and the budget of Ukraine (arts. 85.3 and 85.4);
  • approve the prime minister, as proposed by the president (art. 85.12);
  • approve the programme of socio-economic development proposed by the cabinet of ministers (art. 85.6);
  • determine the principles of domestic and foreign policy (art. 85.5);
  • determine the organisation and activities of the agencies of the executive (art. 92.12);
  • dismiss the cabinet in a no-confidence vote, although this right can be exercised only once a session and not within one year following the approval of its programme (art. 87);
  • determine the organisation and activities of the bodies within the executive powers (art. 92.12);
  • hear annual and special messages of the president of Ukraine on the domestic and foreign situation of Ukraine (art. 85.8);
  • impeach the president in the event of treason or some other crime (art. 111).

28The president was granted an extensive array of appointive, policymaking powers as well as some limited law making prerogatives:

  • appoint the prime minister with the agreement of the Supreme Council (art. 106.9);
  • appoint members of the cabinet of ministers and heads of central bodies of executive power proposed by the prime minister (without parliamentary consent) (art. 106.10);
  • appoint one third of the Constitutional Court, the Council of the National Bank, as well as the Prosecutor General, and other central executive organs (in most cases the consent of parliament is required);
  • create, restructure, and abolish the executive agencies of the state (art. 106.15);
  • revoke acts of the cabinet of ministers of Ukraine and the Council of Ministers of the Autonomous Republic of Crimea (art. 106.16);
  • dismiss the prime minister and ministers (art. 106.9);
  • initiate legislation (art. 93);
  • have presidential draft laws considered by parliament as a priority (art. 93);
  • veto parliamentary bills, although the veto can be overridden by a qualified majority of two thirds of parliament (arts. 94 and 106.30);
  • issue decrees on economic issues (not regulated by laws) for three years (until 1999) on the condition that they are signed by the prime minister and that the draft laws are simultaneously submitted to parliament (art. 4 of the Transitional Provisions);28
  • dissolve parliament if it cannot convene for thirty days during a plenary session. (However, according to art. 106.8, the president cannot dissolve the Supreme Council during the last six months of his term, and one year after the pre-term elections.) The cabinet of ministers, which is composed of the prime minister, the first vice-prime minister, three vice-prime ministers and the ministers, was allocated power to:
  • ensure state sovereignty and the economic independence of Ukraine (art. 116.1);
  • implement domestic and foreign policy (art. 116.1);
  • carry out the execution of the constitution, the laws of Ukraine and the acts of the president (art. 116.1); − ensure the implementation of state policies, such as fiscal, investment, employment, education, etc. (art. 116.3);
  • draft the state budget (art. 116.6);
  • implement the state budget of Ukraine and submit a report on its implementation to the Supreme Council (art. 116.6);
  • issue resolutions and orders, within the limits of its competence, which are mandatory for the execution on the territory of Ukraine (art. 117).
  • 29 Shugart and Carey, Presidents and Assemblies, pp. 24–5.
  • 30 As a result, the so-called sumisnyky, that is those who combined the two positions, had to either (...)

29According to Shugart and Carey’s classification, the constitution created a president-parliamentary system, which is characterised by two key features: asymmetrical control over the cabinet (the president nominates and recalls it but parliament can take a vote of no-confidence in it) and law making authority granted to the president.29 Moreover, in the Ukrainian case, the semi-presidential form of government is characterised not only by the functional separation of powers (although, as was argued above, there is actually a significant overlap in prerogatives), but also by the separation of the membership, as, according to the new constitution, deputies of the Supreme Council cannot hold posts in the executive branch.30 At the same time, as the above description suggests, in the attempt to balance out the authority of the president and parliament, the powers of those institutions were duplicated rather than separated. Thus, the system is characterised by overlapping authority between the president and the Supreme Council.

  • 31 While the majority of constitutions are silent on the role of political parties in representing th (...)

30The constitution provides a basis for building a multiparty democracy, as it states that ‘political parties in Ukraine promote the formation and expression of the political will of citizens, and participate in elections’ (art. 36). The article demonstrated an underlying change in the view of the role of political parties as compared to the 1991 Concept of the New Constitution, which expressed distrust in the institution (see chapter 3). However, the new constitution does not outline the role of parties in structuring the executive–legislative relations.31 This lack cannot be put down to an omission, especially when the noticeable tendency to provide detailed outlines of state institutions is taken into account. Rather it resulted, firstly, from the lack of an agreement on other fundamental institutions of the political system such as the electoral system (which is not described in the constitution), and, secondly, from the uncertainty as to how precisely the political parties would fit into the machinery of such a semi-presidential system. Because as the written constitution was drafted under time pressure, there was no time to reflect on, and assess, its impact on the actual functioning of the state institutions. Apart from a lack of reflection on the role of the (fledging) party system in structuring the interactions between the branches of power, this general lack of foresight has proved to have grave consequences for executive–legislative relations, which deteriorated, rather than stabilised, under the new constitution (see chapter 8).

  • 32 The even number of judges in the Constitutional Court was a ‘leftover’ from an earlier proposal wh (...)
  • 33 Rett R. Ludwikowski, Constitution Making in the Region of Former Soviet Dominance (Durham and Lond (...)
  • 34 In the March draft the prokuratura was deprived of its function of overseeing legality; yet the co (...)

31The principle of the separation of powers was vindicated in the provision of the Constitutional Court, which has given sole authority to constitutional jurisdiction, despite the objections of the Left, which viewed it as a usurpation of the powers of the Supreme Council. The Court consists of 18 judges, who are nominated for 9 years. The president, parliament and the Council of Judges appoint six each.32 The Court decides on the issue of conformity of laws to the constitution and interprets the constitution and laws (art. 147). Ukraine took a decisive step towards the judicialisation of political power, subjecting political disputes to judicial decisions, in order to resolve the power conflict (see chapter 8). As Ludwikowski put it, the introduction of the judicial review was ‘the greatest novelty in the post-socialist world’.33 However, the legal system in Ukraine was also tainted by an institutional leftover from the Soviet system, namely the prokuratura, which in Chapter VII was allowed to retain its general function of ‘supervision of the observance and application of laws’ in the ‘transitional provisions’ until the laws regulating this matter are passed. The lack of an expiry date for this provision means that the prokuratura can continue to exercise its Soviet-era functions, and as such, become a useful tool in presidential hands to control political opponents.34

32Shugart and Carey argue that the president-parliamentary form of government is not a hybrid between parliamentarism and presidentialism, but a distinct form of government in its own right (even if a relatively rare one). However, even if the end product conforms to the ideal type of a system, Ukraine’s form of government is clearly eclectic in terms of its origin. The Western principle of ‘separation of powers’ served as a body on which home-grown institutions woven of ideas, values and interests were grafted. In other words, borrowing amounted to an emulation of principles rather than any specific institutional arrangements from the West. Neither did the Ukrainian pre-communist past inspire the constitution makers to opt for pure parliamentarism, as professed by the leaders of the Ukrainian People’s Republic (UNR). If anything, the form of government copied by the pro-presidential experts was that of the Russian 1993 constitution, both in the 1995 Dohovir and also the November draft. Then the ‘Russian model’ was altered in an attempt to strengthen the Supreme Council’s control over the government and to protect parliament from the potential authoritarian leanings of the presidency. As a corollary of the preoccupation with equalising powers, no effective instruments were provided to stimulate cooperation between the two agents of the electorate and to resolve potential deadlocks between the president and parliament over legislation and appointments.

33As was argued in chapter 5, the constitutional debates symbolised the clash between the incompatible ideals of the Soviet system of narodovladia favoured by the Left and Montesquieu’s classical system of the separation of powers advocated by the centre, the Right and the president. Despite the opposition of the Left, the remnants of the Soviet system were dismantled in the constitution and the Left only ‘won’ on the uni-cameral form of parliament against the wishes of Kuchma (this added the crucial votes of the centrist deputies). The form of government was the result of a complex matrix of ideals and interests contested in prolonged negotiations, which account for the innovative institutional design, the inconsistency in the distribution of ‘checks and balances’, and the overlap of powers in order to temper the excesses of the presidential authority. Nevertheless, the resulting president-parliamentary system with a strong, executive presidency was the heaviest loss incurred by the proponents of the status quo ante.

THE TERRITORIAL–ADMINISTRATIVE MODEL OF THE STATE

  • 35 The reform of local government was the most difficult part of reform even in the countries which l (...)

34In contrast to the elaborated chapters on the central authority, the brevity of the chapter on the territorial model of the state is striking. In general, constitutions in unitary states either regulate local self-government in detail or outline only the basic framework. In the case of Ukraine, the latter path was opted for. However, it was not for a fear of rigidity and over-regulation, but rather the lack of a coherent conception of the territorial distribution of power and centre–periphery relations, something that was evident in the half-hearted debate on the merits and perils of centralised and decentralised models of the state.35

35As was argued in chapter 5, federalism was discarded as too dangerous to a new Ukrainian state and, more controversially, at odds with ‘indigenous tradition’ of statehood. At the same time, the devolution of power to the regions remained on the agenda insofar as none of the key actors openly favoured a centralised model. Yet, despite the prevailing rhetoric, decentralisation proved an empty promise. Article 132 of the new constitution stated:

The territorial structure of Ukraine is based upon the principles of unity and individual state territory and is based on the principle of centralisation and decentralisation in the exercise of state power.

36The Soviet-era administrative division was upheld in the constitution and the country’s grid of oblasts, districts, cities and villages was retained (art. 133). Local government was guaranteed at the community level of the village and city (arts. 7 and 140). Article 140 ‘de-statised’ the soviets by defining local government as ‘the right of a territorial community … to resolve independently issues of local character within the limits of the Constitutions and the laws of Ukraine’. However, the constitution is unclear in its provisions on the meso level (oblast and district). For example, when describing the mode of elections, the constitution only mentions local self-government (village and city), and does not stipulate how oblast and district councils are formed. It only says that the chairpersons of district and oblast councils are elected by the respective councils and lead the executive staff of the council (art. 141). (The norm on the indirect mode of elections to those bodies, as favoured by the Right and the president, was excluded during the constitutional night in order to appease the Left.) Moreover, the prerogatives and resources of self-governing bodies were defined in an incoherent and convoluted way.

37At the same time, despite the opposition of the Left and some centrist factions, the rigid vertical executive pyramid of the ‘regional state administration’, which was first introduced by Kravchuk in early 1992 and then reinstated by Kuchma in 1994 (see chapters 4 and 6) was retained in the constitution. The heads of the local state administration (oblast and district level) are appointed by the president on the recommendation of the prime minister and are subordinated to heads of administration at higher levels (art. 118). Regional and local state administrations were vested with wide-ranging powers listed in art. 119, including the preparation and implementation of oblast and district budgets. However, the oblast or district councils obtained a degree of leverage against the centre as under certain circumstances they can force the president to recall the head of the respective state administration (art. 118).

  • 36 Daniel J. Elazar, Exploring Federalism (Tuscaloosa, AL: the University of Alabama Press, 1987), p. (...)

38In general, the constitution did not clarify centre–periphery relations: not only is the model of regional and local self-government ill defined but also the division of powers of self-governing institutions vis-à-vis the state administration remained unclear (art. 142-4). A clear description of the legal status of sub-national institutions is a precondition of effective local/regional autonomy and decentralisation of the unitary state.36 Without an explicit constitutional description of the scope of the autonomy, the model of the state may more easily veer toward a unitary centralised state. This has been the case in Ukraine.

39In the case of Ukraine, the need to compromise resulted in vague provisions, vulnerable to conflicting interpretations. The final confrontation over the system of local government was merely postponed, rather than finalised with the passage of the constitution (see chapter 8). Nevertheless, instruments for the domination of the centre over the periphery were placed in the constitution, as neither the president nor the national-democrats were willing to devolve power from the centre to directly elected representative bodies at the intermediate level. Nevertheless, the vestige of the past—the system of soviets, uniting the representative and state administration functions as an institutional framework for narodovladia—was finally dismantled.

  • 37 As Oleksandr Lavrynovych, a deputy head of Rukh, commented: ‘The chapter on the Crimean Republic i (...)

40The only region of Ukraine which was granted territorial autonomy was Crimea; it was defined as an Autonomous Republic of Crimea (ARC) in an otherwise unitary state. The resolution of the ‘Crimean question’ was the biggest concession on the part of the Right. The ARC was granted the right to its own constitution, a parliament with the right to issue ‘normative acts’, and a Council of Ministers. Nevertheless, Kyiv’s authority on the peninsula was asserted and Crimean autonomy circumscribed in a number of ways. First of all, the ARC was declared ‘an inseparable constituent part of Ukraine and [it] decides on the issues ascribed to its competence within the limits of authority determined by the Constitution of Ukraine’ (art. 134).37 Secondly, the Constitution of the ARC has to be approved by Ukrainian parliament in Kyiv (art. 135). Thirdly, the prime minister of the ARC can be appointed and dismissed by the Supreme Council of ARC only with the consent of the president of Ukraine (art. 136). The Supreme Council of ARC can issue ‘normative’ or ‘legal’ (as opposed to legislative) acts only in specified areas, and even then they have to comply not only with the Constitution of Ukraine but also with laws passed by the Supreme Council of Ukraine. In case of their ‘nonconfirmity’ the president has the right to suspend and file a case to the Constitutional Court to determine their constitutionality (art. 137). Thirdly, the decisions of the Council of Minister of the ARC have to comply with the acts of the president and the cabinet of ministers of Ukraine (art. 135). Fourthly, the court system of Crimea belongs to a unified system of courts of Ukraine (art. 136). And finally, the ARC was refused the right to raise taxes and to have separate (or dual, Russian) citizenship. The chapter on the ARC served as a basis for the drafting of the Crimean Constitution, which was approved by the Supreme Council of Ukraine in December 1998.

  • 38 The case for decentralising the state was made for a number of reasons: locally elected institutio (...)
  • 39 For a general debate on territorial models of state and the underlying justifications see Ronan Pa (...)

41The experience of the centralised model of communist states, which allowed for the subordination of local needs and interests to those of the centre, inspired calls for a shift from ‘regional administration’ to ‘regional government’ after the collapse of communism.38 In Ukraine, the idea of decentralisation was in principle widely supported by the ‘reformers’ not only in order to eradicate the legacy of Soviet centralism, but also—as the national-democrats argued—to restore the indigenous pre-communist traditions of the decentralised model of state (see chapter 2). However, those considerations ultimately gave way to the overriding political objective of territorial integrity and unification.39 The upsurge of centrifugal forces provided justification for a unitary centralised model of state, with the exception of Crimea where autonomy was opted for as a more suitable model for containing centrifugal tendencies. Ukraine emerged as an independent state following the breakup of the USSR, but was soon after haunted by a spectre of internal centrifugal forces. This experience was a formative experience for a new polity. A unitary territorial model was designed to facilitate integration by providing a framework for imposing and pursuing uniform policies across the territory, and subordinating sub-state, regional interests to those of the centre.

CONCLUSION

42An analysis of the constitution illustrates the extent to which the final constitutional reconciliation was the result of painstaking negotiation and enforced compromises between conflicting ideas, beliefs and interests. Undoubtedly, compromise forms an integral part of any political decision making in general, and constitution drafting in particular, but the nature of that settlement is of special interest in Ukraine, where diametrically different conceptions of statehood and cohorts of rules and institutions were pursued. Like in other post-communist states, the task of reconciling different ideas and interests was compounded in Ukraine by the sheer range of issues that needed to be addressed in the constitution. In line with Soviet legal tradition, the constitution was drafted as a comprehensive and rigid code. This form of fundamental law was borrowed by the Soviet regime from the German Rechtsstaat, the constitution of which set out precise responsibilities, rules and procedures, as opposed to the minimalist Anglo–Saxon frame-of-government constitutions. The legitimacy of the constitution as a code depends on the achievement of a formalised consensus in the body representative of popular sovereignty.

43This requirement was met in Ukraine. Yet the achievement of a constitutional majority should not detract attention from the very limited extent to which the left-wing forces shaped the content of the constitution, despite controlling approximately half of all seats in parliament. Even the gains, such as keenly fought over socio-economic entitlements and the specific reference to the Russian language, were more apparent than real. Therefore, in terms of the preferences of the left-wing forces, the constitution was the product of exclusion, rather than of reconciliation and compromise. The latter concepts, however, can be more readily applied to the nature of settlement between the centre-right forces, including the president, especially insofar as the distribution of powers between the president and parliament was concerned. At the same time, the compromise amongst the centre-right forces did not extend to the domain of centre-periphery relations; these were left ill-defined in the constitution.

  • 40 Jeremy Jennings, ‘French Constitutional Tradition’, in Richard Bellamy, Victorio Bufacchi, and Dar (...)
  • 41 Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, p. 104.

44The functions the constitution performs are those of constituting, organising, and limiting. Yet, as was argued in chapter 1, the extent to which any constitution can perform these functions depends on the particular circumstances of the polity it applies to. Hence the adoption of a new constitution in a country such as Ukraine was a qualitatively different act from cases where constitutional reform is a matter of a (relatively) straightforward re-organising or just refining an institutional framework within existing states. Such types of constitutional reforms are well evidenced in France, which has had a string (at least 15) of constitutions since 1789, and where, as Jennings put it, ‘constitutional tinkering … has been something of a national pastime’.40 Undoubtedly, in the 1996 Ukrainian constitution the three functions coincided. The liberal, ‘limiting’ elements are embedded in the comprehensive chapter of Human Rights and Freedoms and in the regulated framework of government, which sets legal limits on the arbitrary use of state powers. However, the pivotal role of this constitution lies in its constituting and organising functions: the aim of the constitution is not so much the protection of a pre-existing structure of the economic, political and cultural life but the creation of this very structure.41 In order to provide a basis for a ‘sovereign and independent, democratic, social, law-based’ (art. 1) nation-state, the content of the constitution is determined by the intention to integrate and unify. This intention shaped the provisions on the institutional framework of the state, the notion of the ‘sovereign people’ and the socio-economic commitments of the state.

45Not only did the passage of the constitution itself symbolise a critical threshold in the formation of a polity, but also the content of the constitution was driven by the imperatives of state building. The constitution, by removing the ideological and institutional residuals of the particularistic Soviet model, was designed to turn Ukraine into a modern ‘European nation-state’ embodying national sovereignty with its homogenising undertones and uniformist institutional set-up. Its paramount aim was to integrate. The constitution ‘covers up’ much of Ukraine’s diversity, disunity and disagreement by locating popular sovereignty with the ‘Ukrainian people’, when the latter category has little shared meaning in Ukrainian society. The constitution becomes an instrument of state building: it purports to instil a sense of belonging and allegiance by pointing out the nation’s individual name, public symbols, official language and tradition of ‘centuries-old history of Ukrainian state building’, as well as socio-economic pledges. The legacy of being ruled by different states—pronounced regional differences—was to be managed by the semi-presidential form of government at the centre and through domination of the centre over regional concerns (though granting autonomy to Crimea as a recognition of its special profile amongst the Ukrainian regions).

  • 42 Materials of the Special Conciliatory Group, Minutes of the Meeting on 5 April 1996.

46In order to develop such an eclectic and yet integrative constitution, the constitution-makers tailored the universalistic constitutional principles to particular Ukrainian circumstances. Universalistic aspirations of creating a nation-state entailed the recognition of a particularistic path of Ukrainian state building. In the course of constitution drafting, the review of the ‘Western traditions’ was guided by the paramount criterion of their suitability ‘to the current stage and peculiarities of the national and socio-economic development in Ukraine’.42 This consideration mitigated against wholesale, indiscriminate imports of any particular Western model, while, at the same time, Ukraine aspired to emulate ‘Western traditions’. If anything Ukraine’s form of government was originally to be modelled on that of Russia, although it underwent significant modification during constitution drafting.

  • 43 Kataryna Wolczuk, ‘History, Europe and the “National Idea”: the Official Narrative of National Ide (...)

47The rejection of the Soviet model (even in the absence of an unmitigated declaration of breaking with the Soviet past) posed the pertinent question of the legitimate historical roots of the state. The symbolic continuity of ‘centuries of Ukrainian state building’ was asserted in the constitution’s Preamble. The historical genealogy of the state was established in public discourse through the invoking of Hrushevskyi and Khmelnytskyi as the father figures of the modern Ukrainian state by both presidents, Kravchuk and Kuchma.43 Yet, despite the symbolic assertion of continuity, the constitution did not restore the pre-communist models. This was at least partially because of the difficulty of reconciling the disparate interpretations of the ‘indigenous tradition’. And even in places where it was relatively unambiguous, such as a decentralised territorial model of the UNR, the indigenous tradition was critically screened for its suitability for the renewed state-building project, which above all—as was believed—required national and territorial consolidation.

  • 44 Clifford Geertz, The Interpretation of Cultures (London: Fontana, 1973), p. 244.

48The by-product of these efforts to reconcile the assertion of the universalistic constitutional principles with the particularistic imperatives of state building was the multi-faceted assertion of nationhood, as well as a novel organisation of executive–legislative relations, an institutional design that lacked transparency and coherence in many places, with grave consequences for political stability in the post-constitutional period. The eclectic nature of the finally approved conception of statehood was hardly surprising; as Geertz pointed out: ‘to an extent, this is true for virtually all the new states, which tend to be bundles of competing traditions gathered accidentally into concocted political frameworks rather than organically evolving civilisations’.44

49In sum, the 1996 constitution dressed Ukraine in modern and universal clothes (sovereign people, rights and freedoms, governmental institutions, local government), although with some creases and a fair bit of patchwork. And it must be remembered that such an ‘outfit’ was neither readily available from a reservoir of Ukraine’s history, nor could it be easily tailored in 1991. The new Ukrainian constitution, however, was far from an ‘innovative leap’ or ‘conceptual revolution’; it predominantly aspired to match and conform to uniform standards (albeit by tailoring them to ‘indigenous circumstances’) rather than to invent new ones. The main goal the constitution served was to include Ukraine in the dominant, authoritative forms of constitutional recognition and to lift the paradigm of ‘stateness’ to a new, dialectically higher level. At the same time, the imperative of state building took priority over efforts to embrace constitutionalism.

Notes

1 Claus Offe, ‘Capitalism by Democratic Design’, Social Research, Vol. 58, No. 4 (Winter 1991), p. 886.

2 See, for example, Margaret Moore, ‘On National Self-determination’, Political Studies, Vol. XLV, No. 5 (December 1997), pp. 900–13.

3 The Preamble is an introductory passage of the constitution, often written with pathos and explaining the subject and the axiological basis of the new constitution. There is no agreement as to whether the Preamble is an integral part of constitution, and as such, acquires the status of a legal norm, or whether its value is primarily symbolic-expressive (i.e. facilitates the interpretation of constitutional norms, but it does not contain any itself). See, for example, Piotr Winchorek, Dyskusje konstytucyjne (Constitutional Discussions) (Warsaw, 1996), pp. 111–117.

4 The national-democrats insisted on the so-called right of people to rise up to defend the state (pravo narodu na povstania). The March draft contained the following article: ‘The people have the right to resist anyone attempting to subvert the Ukrainian state, or constitutional system, violate its territorial integrity or perform activities aimed at seizing state power, if measures provided by the Constitution cannot be used’ (art. 14 of the March draft). This norm would enable people to resort to extra-constitutional means in the case of any threat to the Ukrainian state, including, for example, a decision to enter a union with Russia even if made in a referendum. However, the norm did not even get a simple majority in June 1996 and was excluded from the final draft. However, article 65 states that ‘Defence of the Motherland, of the independence and territorial indivisibility of Ukraine, and respect for its state symbols, are the duties of citizens of Ukraine’.

5 Article 13 in the Ukrainian language original text actually reads ‘the free development, use of and protection of Russian, other languages of national minorities of Ukraine, are guaranteed’. The awkward wording was opted as the national-democrats would not allow an ‘and’ between the word ‘Russian’ and the phrase ‘other minority languages’. This, in their opinion, would emphasise the special status of Russian in Ukraine, whereas they wanted to emphasise its ‘minority status’.

6 A national-democratic deputy, Roman Bezsmertnyi, commented on such an outcome: ‘The Left must have suffered an intellectual blackout when they voted on this article’ (Author’s interview in September 1996, Kyiv).

7 However, as by end of 1998 no suitable lyrics were submitted, it was decided to retain the first phrase of the original text.

8 Moreover, art.138.9 refers to ‘the development and implementation of state programmes for the return of deported peoples’, which was particularly aimed at the Crimean Tatars—the largest group of indigenous people in Ukraine.

9 Walker Connor, Ethnonationalism: the Quest for Understanding (Princeton University Press: Princeton, 1994), p. 78.

10 Louise Jackson and Kataryna Wolczuk, ‘Defining Citizenship and Political Community in Ukraine’, The Ukrainian Review, Vol. 44, No. 2 (Summer 1997), pp. 16–27.

11 Ibid.

12 However, religion was not recognised as one of the defining attributes of a political community. Article 35 explicitly prevents such a possibility: ‘The Church and religious organisations in Ukraine are separated from the State, and the school—from the Church. No religion shall be recognised by the State as mandatory’. There was hardly any debate on this provision, in contrast, for example, to Poland, where this was one of the most hotly disputed issues.

13 Vechirniy Kyiv, 2 July 1996, p. 1.

14 While interpreting the article on private property as a defeat of the Left, Vadym Het’man anticipated that the Left would aim to take revenge after losing the constitutional battle on that issue [Vadym P. Het’man, Yak prynymalas Konstytutsiia Ukrainy (How the Ukrainian Constitution Was Adopted) (Kyiv, 1996), p. 59]. In contrast, Serhiy Soboliev from pro-market faction ‘Reforms’ concluded that ‘we lost the article on property as the references to laws means that acquiring it can be limited by ordinary laws’ (Author’s interview in September 1996, Kyiv).

15 K. C. Wheare, Modern Constitutions, 2nd ed. (London: Oxford University Press, 1966). p. 38.

16 Of special interest is article 49 in the constitution which states that the existing health service provisions cannot be reduced, something which was incorporated into the constitution as one of the ‘contributions’ of the Socialist faction. Taken literally, the article implies that even the closure of a small local surgery will be in breach of the constitution.

17 For a criticism of their inclusion see Cass Sunstein, ‘Why Social and Economic Rights Don’t Belong in the New Constitutions of Post-Communist Europe’, East European Constitutional Review, Vol. 2, No. 1 (Winter 1993).

18 Giovanni Sartori, ‘Constitutionalism: A Preliminary Analysis’, American Political Science Review, Vol. 56, No. 4 (December 1962), p. 862.

19 Daniel J. Elazar, ‘Constitution Making: The Pre-Eminently Political Act’, in Keith G. Banting and Richard Simeon (eds.), The Politics of Constitutional Change in Industrial Nations (London and Basingstoke: Macmillan, 1985), pp. 232–448.

20 Elster, Introduction to Constitution Making in Eastern Europe, p. 465.

21 Ulrich K. Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, in Joachim Jens Hesse and Nevil Johnson (eds.), Constitutional Policy and Change in Europe (Oxford: Oxford University Press, 1995) p. 100. However, since the second World War, the commitment to the procedural aspects of constitutionalism was combined with the pursuit of social justice and welfare in European constitutional practice and theory (although not so much in written constitutions). As a result, socio-economic benefits came to be regarded as an integral part of citizens’ portfolio of rights, and this portfolio became an integral and distinctive characteristic of the Western European state model. In that respect, the new Ukrainian constitution (similarly to other post-communist constitutions) by making those pledges more explicit and generous, broadly adheres to the European strand of constitutional practice.

22 Gianfranco Poggi, The Development of the Modern State: A Sociological Introduction (London: Hutchinson, 1978), p. 132.

23 As Preuss pointed out ‘there seems to be a significant correlation between the dearth of a long-standing and firm constitutional tradition and the preference for a teleological constitution’. Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, p. 103. Indeed, the twentieth-century constitutions that began to include substantive, material rights, such as the German (Weimar Republic) (1918 and 1923), Yugoslavian (1921), Polish (1921), Romanian (1922), were, as a rule, adopted in new or reconstituted states with weak liberal traditions.

24 Elazar, ‘Constitution Making’, pp. 232–448.

25 Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, p. 102.

26 The chapters describing the form of government resulted from deliberations in the constitutional commission and working groups; the plenary session of parliament hardly introduced any changes. Indeed, apart from changing the name of parliament (from Narodni Zbory to Soviet-era Supreme Council) the articles on central authority were not amended during the eventful constitutional night, when language, symbols, private property and Crimea remained the ‘bones of contention’. During the constitutional night, the prime minister, Pavlo Lazarenko, tried to strengthen his position by proposing a last minute change requiring that the prime minister not only be appointed but also dismissed by the president with the consent of parliament. The idea was, as expected, favourably looked on by the Left, yet was discarded as a recipe for constitutional deadlock in the event of the prime minister gaining enough independent support in parliament to remain in situ despite his dismissal by the president.

27 There have been some attempts to devise a measurement of presidential powers. Shugart and Carey divided presidential powers into legislative powers to issue decrees and nonlegislative powers (cabinet formation, dissolution of assembly, etc.). Each power was weighted on a scale of 1–4 on the basis of how comprehensive it was. See Matthew S. Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge: Cambridge University Press, 1992). p. 150. McGregor divided presidential powers into symbolic powers (without immediate political importance), ceremonial (awarding honours), procedural (such as opening of parliament), appointive powers (for example, to appoint prime minister), and political powers (vetoing legislation). The weighting assigned to each power was then adjusted in the light of the extent to which the power was shared with other bodies. See James McGregor, ‘The Presidency in East Central Europe’, RFE/RL Research Report, Vol. 3, No. 2 (14 January 1994), pp. 23–31. However, as was argued in chapter 4, the arbitrary element and legalistic nature of such measurements renders them something of an academic exercise. While they assist in the comparison of constitutional frameworks of different states, they do not shed much light on the actual weight of the institutions in specific national contexts.

28 The decree comes into force if the Supreme Council does not adopt a law on the same issue or does not reject the presidential draft law within 30 days.

29 Shugart and Carey, Presidents and Assemblies, pp. 24–5.

30 As a result, the so-called sumisnyky, that is those who combined the two positions, had to either quit their deputy mandate or resign from the executive branch after the 1998 elections. (Eastern European Constitutional Review, Vol. 7, No. 3, p. 38).

31 While the majority of constitutions are silent on the role of political parties in representing the views of the electorate and executive–legislative relations, the scarcity of provisions on the role of political parties is according to Loewenstein ‘indicative of the existing cleavage between constitutional nominalism and political reality. Thus, he refers to norms such as ‘deputies represent the entire nation’ as ‘a piece of undiluted semantics’. Karl Loewenstein, ‘Reflections on the Value of Constitutions in Our Revolutionary Age’, in Harry Eckstain and David E. Apter (eds.), Comparative Politics: A Reader (London: The Free Press of Glencoe, 1963), p. 158.

32 The even number of judges in the Constitutional Court was a ‘leftover’ from an earlier proposal which was based on the principle of rotation of a third of the total number of the judges every three years (6 out of 18).

33 Rett R. Ludwikowski, Constitution Making in the Region of Former Soviet Dominance (Durham and London: Duke University Press, 1996), p. 231.

34 In the March draft the prokuratura was deprived of its function of overseeing legality; yet the conciliatory group and the Temporary Extraordinary Commission on the Preparation the Draft Constitution reinstated this function as a concession to the Left and some centrist deputies. On the debates on the judicial reform see Biuletyn Verkhovnoi Rady Ukrainy, 1992 (Fifth Session), No. 54 and 59.

35 The reform of local government was the most difficult part of reform even in the countries which launched their institutional reforms earlier and in a more systematic manner, such as Poland, where the reform was finalised only in 1998. See H. Wollman, ‘Institution building and decentralisation in formerly socialist countries: the cases of Poland, Hungary, and East Germany’, Environment and Planning C: Government and Policy, Vol. 15, No. 4 (November 1997), pp. 463–80 and J. Regulska, ‘Decentralisation or (re)centralization: struggle for political power in Poland’, Environment and Planning C: Government and Policy, Vol. 15, No. 2 (May 1997), pp. 187–207.

36 Daniel J. Elazar, Exploring Federalism (Tuscaloosa, AL: the University of Alabama Press, 1987), p. 48. According to Elander, decentralisation includes the following dimensions: 1) the range of functions carried out at local level; 2) the degree of autonomy about how these functions are carried out; 3) the degree to which local government is funded from its own resources rather than from central grants. I. Elander, ‘Between centralism and localism: on the development of local government in postsocialist Europe’, Environment and Planning C: Government and Policy, Vol. 15, No. 2 (May 1997), pp. 143–59.

37 As Oleksandr Lavrynovych, a deputy head of Rukh, commented: ‘The chapter on the Crimean Republic is the worst in the constitution’. (Author’s interview, Kyiv, September 1996.)

38 The case for decentralising the state was made for a number of reasons: locally elected institutions offer representative, accessible and responsible government, foster direct participation in public decision making, develop a sense of community and civic ties (political rationale); devolution in spending and revenue-raising responsibilities result in efficiency gains (economic rationale); and improvements in collection of information (administrative rationale). K. Zsamboki and M. Bell, ‘Local self-government in Central and Eastern Europe’, Environment and Planning C: Government and Policy, Vol. 15, No. 2 (May 1997), pp. 177–86. However, some scholars warned about uncritical captivation with decentralisation as a case could be made for (reformed) centralisation. Elander, argues that ‘Neither centralism nor localism are inherently good or bad’, and points out that centralisation offers the following advantages: 1) promotion of the public and national interest, 2) helps to minimise inequality amongst different parts of the country and equal socio-economic conditions for the citizens, 3) allows the co-ordination and control. I. Elander, ‘Between centralism and localism’, pp. 143–59.

39 For a general debate on territorial models of state and the underlying justifications see Ronan Paddison, The Fragmented State: The Political Geography of Power (Oxford: Basil Blackwell, 1983).

40 Jeremy Jennings, ‘French Constitutional Tradition’, in Richard Bellamy, Victorio Bufacchi, and Dario Castiglione (eds.), Democracy and Constitutional Culture in the Union of Europe (London: Lothian Foundation Press, 1995), p. 22.

41 Preuss, ‘Patterns of Constitutional Evolution and Change in Eastern Europe’, p. 104.

42 Materials of the Special Conciliatory Group, Minutes of the Meeting on 5 April 1996.

43 Kataryna Wolczuk, ‘History, Europe and the “National Idea”: the Official Narrative of National Identity in Ukraine’, Nationalities Papers, Vol. 28, No. 4 (December 2000), pp. 672–94.

44 Clifford Geertz, The Interpretation of Cultures (London: Fontana, 1973), p. 244.

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