The Constitution (June 28, 1996) regulates the rights, freedoms, and duties of a person and a citizen, holding of elections and referendums, the activity of the Verkhovna Rada, the President, the Cabinet of Ministers and other supreme executive bodies, the activity of courts, territorial organization, and local self-government.
Work on the Constitution of Independent Ukraine began with the adoption of the Declaration on State Sovereignty on July 16, 1990. In October 1990, in order to establish the Basic Law, the Verkhovna Rada of Ukraine established a constitutional commission, headed by the then-chairman of the Ukrainian SSR Leonid Kravchuk. The first version of the concept of the Constitution included the establishment of a bicameral parliament and presidential republic, but this project was not supported by either deputies or civil society.
In October 1993, the committee introduced a new concept; however, due to political disagreements between different parties, this version was also not supported.
In November 1994, a new constitutional commission was created and headed by the newly elected President Leonid Kuchma and the Chairman of the Verkhovna Rada Oleksandr Moroz. Since the future form of the government was the main issue of concern, the chairmen of the commission could not reach a common agreement. The concept proposed by Leonid Kuchma gave significant rights to the president, and it was not supported by the parliamentarians; only a document developed by a special working group of the commission was finally put to a vote and approved.
According to the Constitution of 1996, Ukraine has become a presidential-parliamentary republic with broad powers of the president. This form of government was retained until the amendments in December 2004. During this time, several attempts were made to amend the Basic Law in order to reduce the power of the president, but none of them proved to be successful.
In April 2000, on the initiative of President Leonid Kuchma, who was re-elected for a second term, an all-Ukrainian referendum was held to strengthen the presidential power. It was suggested to vote for the following proposals: the formation of a two-chamber parliament (supported by 81.68%); broadening the grounds for early termination of powers of the Verkhovna Rada of Ukraine (84.69%); restriction of parliamentary immunity (89%); decrease in the total number of people’s deputies from 450 to 300 (89,91%). 79% of the citizens took part in the voting, but neither the results of the will of the people nor the high turnout (in some regions more than 100%) did not help to introduce any of the proposed changes. The president’s initiative was criticized as unconstitutional. The opposition deputies applied to the Constitutional Court with appeals. In the end, the results of the referendum were translated into a sphere of sociological research. According to the decision of the Constitutional Court, no amendment to the Basic
Law could be made without parliamentary support.
In 2000-2001, Leonid Kuchma’s rating was steadily falling: the “cassette scandal” and the killing of journalist Georgiy Gongadze were directly linked to the president. The opposition and civil society organizations launched a series of protests – “Ukraine without Kuchma”.
In December 2002, a temporary special commission of the Verkhovna Rada was established in order to process draft laws amending the Constitution. On December 8, 2004, one of these bills was adopted, providing the reduction of the president’s powers. Such an about-face is explained by the fact that Leonid Kuchma’s second presidential term was reaching the end, and he wanted to strengthen his influence on the political situation in the country after leaving the presidential armchair. Ukraine became a parliamentary-presidential republic.
The change of power led to another attempt to change the law, which is traditionally considered the most stable. In December 2007, on the proposal of the new President Viktor Yushchenko, a National Constitutional Council was created. But the concept developed by the council was not supported by the Parliament, after that the council itself has ceased to exist.
However, an attempt of the next Ukrainian President Viktor Yanukovych was successful. In September 2010, at the request of 252 people’s deputies, the Constitutional Court repealed the amendments introduced to the Basic Law in December 2004 and reinstated its previous version. Thus, the previous Constitution was restored. It should be noted that the authority to amend the Constitution is the exclusive competence of the Parliament and the Ukrainian people and is not the authority of the Constitutional Court.
In March 2014, the Prosecutor General’s Office initiated a criminal proceeding for the seizure of power by Viktor Yanukovych in 2010. The explanation to the case says: “It was established that the Constitution of Ukraine was changed by Viktor Yanukovych in 2010 through unconstitutional means, thereby seizing the power”.
So, in 2010, Ukraine returned to the presidential-parliamentary form of government with broad powers of the president.
During the presidency of Viktor Yanukovych, the Constitution of Ukraine was facing challenging times. Thus, in February 2011, the term of office of the President, deputies of the Verkhovna Rada and deputies of local councils was extended to 5 years. In September 2013, regular changes were made in the part of the regulation of powers of the Accounting Chamber. As a result, it received the right to control the funds flow to the state budget, and not only its expenditure.
The Revolution of Dignity and the overthrow of the Yanukovych led to another significant change in the Constitution: on February 21, 2014, the Verkhovna Rada recognized the decision of the Constitutional Court of 2010 unconstitutional. Practically, the Constitution of 1996, as amended in 2004, 2011, 2013, and 2014, was restored. The form of government was again changed to the parliamentary-presidential.
The current course of the reform
The Strategy for Sustainable Development “Ukraine-2020”, presented by the government in January 2015, identifies constitutional reform as one of the 62 necessary reforms. According to this document, the ultimate goal of the reform is the adoption of a new Constitution and the appropriate changes to all legislation. As a result, the form of government and the administrative-territorial structure should be changed. This is the so-called reform of the power triangle (president – government – Parliament): delimitation of their responsibilities and a list of duties, as well as decentralization of power.
Moreover, constitutional reform is identified as a top-priority in the treaties concluded between Ukraine and the European Union, the European Atomic Energy Community and their Member States. That is, the implementation of this reform is one of the conditions for Ukraine’s accession to the EU.
In March 2015, Ukrainian President Petro Poroshenko signed a decree on the creation of a constitutional commission. Volodymyr Groysman, the Speaker of the Verkhovna Rada, has been nominated as Chairman.
In June 2015, this commission agreed on a draft Constitutional Reform on Decentralization. Actually, since the end of 2014, the creation of amalgamated territorial communities has begun, and the first elections of the heads were held. That is, the reform of decentralization has begun. But there is no constitutional ground for these actions, as the corresponding changes to the provisions of the Basic Law on the administrative-territorial division of Ukraine, local self-government and the executive organization on the ground have not been adopted yet.
In June 2016, constitutional changes in the area of justice were adopted, which is the basis for judicial reform and reform of the Constitutional Court. Today, the parliament is working on legislative regulations of these constitutional changes.
In addition, the Constitutional Commission has developed a draft amendment to the Constitution as regards the human rights.
In May 2017, the President instructed the Constitutional Commission to initiate work on the drafting of amendments relating to the status of the Autonomous Republic of Crimea.
The power triangle and the distribution of powers
The Revolution of Dignity has made a lot of demands for power as such. In particular, it was about the governance reform and the redistribution of powers of the president, parliament, and government, which have to democratize the power in Ukraine and bring it closer to the best standards of the EU member countries, where officials of any rank serve not their personal interests, but interests of each person, as the whole government does, and the power belongs to the people and can’t be usurped by state bodies.
So far, no constitutional changes in the powers of the Parliament, the president, the government have been implemented. Let us consider what powers they have now.
The powers of the President
The President is the head of the state and the guarantor of the Constitution, the term of his authority is five years for no more than two consecutive terms.
According to the current Constitution, the main powers (and hence the area of responsibility) of the President of Ukraine are as follows:
• To represent the country in international affairs, to manage the foreign policy activities of the state, to conduct negotiations and sign international treaties.
• To decide on the recognition of foreign languages.
• To appoint and dismiss heads of diplomatic missions of Ukraine.
• To decide on the holding of an all-Ukrainian referendum on constitutional amendments.
• To decide on holding early parliamentary elections.
• To terminate the powers of the Verkhovna Rada.
• To make a submission on the appointment of the prime minister, on the proposal of the coalition.
• To appoint and dismiss the Prosecutor General with the consent of the Verkhovna Rada of Ukraine.
• To appoint and dismiss one-half of the council of the National Bank of Ukraine.
• To appoint and dismiss the High Command of the Armed Forces and other military formations, to administer the national security and defence sector.
• To head the National Security and Defense Council of Ukraine.
• To appoint a one-third of the composition of the Constitutional Court.
• To sign laws passed by the Verkhovna Rada.
• To veto laws adopted by the Verkhovna Rada (except constitutional amendments), and their subsequent return for reconsideration.
The powers of the Verkhovna Rada
The Verkhovna Rada is the sole legislative body of Ukraine. Under the Constitution, the Parliament consists of the 450 people’s deputies of Ukraine; their term of office is 5 years. People’s deputies of Ukraine may not possess any another representative mandate, be in the civil service, hold other paid positions, be engaged in other paid or business activities (except for teaching, scientific and creative activities), to be a member of the governing body or supervisory board of a profit-making enterprise or organization.
In the Verkhovna Rada, according to the results of elections, a coalition of parliamentary factions is formed. It includes the majority of people’s deputies from the constitutional composition of the Parliament. The coalition offers the president candidates for ministers and the prime minister.
The main powers of the Verkhovna Rada:
• Amendment to the Constitution.
• Adoption of laws.
• Appointment of a referendum.
• Approval and control over the implementation of the State Budget.
• Definition of domestic and foreign policy.
• Approval of nationwide programs for economic, scientific and technical, social, national cultural development and environmental protection.
• Convene the Presidential elections in Ukraine.
• Declaration of the state of war and peace on the proposal of the President; approval of the president’s decision to use the Armed Forces of Ukraine.
• Removal of the President of the state from office via impeachment.
• Consideration and decision-making on approval of the program is the action of the Ukraine’s Cabinet of Ministers.
• Appointment on the proposal of the President and decision on the resignation of the Prime Minister and other members of the Cabinet of Ministers of Ukraine; control over the government activities.
• Adoption of decisions on granting and procurement of loan and economic assistance, control over its use.
• Appointment and dismissal on the proposal of the President of the Chairman of the National Bank of Ukraine and half of the composition of the National Bank Board.
• Appointment and dismissal of members of the Central Election Commission on the proposal of the President.
• Approval of the overall structure, size, and functions of the Security Service of Ukraine, the Armed Forces of Ukraine and other military units established in accordance with the laws of Ukraine and also the Ministry of Internal Affairs.
• Granting consent for the appointment and dismissal by the President of the Prosecutor General; expressing distrust to the Prosecutor General, resulting in his resignation from office.
• Establishment and dissolution of districts, establishment, and change of borders of districts and cities, changing the hierarchy position of settlements to cities, naming and renaming of settlements and districts.
• Appointment of regular and special elections to local self-government authorities.
Powers of the Cabinet of Ministers
The Cabinet of Ministers is the supreme body of the state executive power, subordinated and accountable to the Verkhovna Rada. The Prime Minister, as well as the Minister of Defense and the Minister of Foreign Affairs, is appointed by the Verkhovna Rada on the proposal of the President. The main powers of the Cabinet of Ministers are:
• To maintain the state sovereignty and economic independence of Ukraine; implementation of the internal and external policy of the state.
• To make provisions for the protection of human and civil rights and freedoms.
• To ensure the implementation of financial, pricing, investment and tax policies, policies in the areas of labor and employment, social protection, education, science and culture, environmental protection, environmental security and environmental management.
• To develop and implement national programs of economic, scientific and technical, social and cultural development of Ukraine.
• To manage the objects of state property in accordance with the law.
• To develop a draft law on the State Budget and ensure its implementation.
• To direct and coordinate the work of ministries and other bodies of executive power.
Adoption of laws in Ukraine
According to the Constitution, the right of legislative initiative in Verkhovna Rada belongs to the President, People’s Deputies and the Cabinet of Ministers. After the Parliament adopts the law, it is sent to the President for signature. The Head of State within fifteen days after the receipt of the law signs it and officially promulgates or returns it with his motivated and formulated proposals to the Verkhovna Rada for reconsideration. If the president did not return the law for reconsideration within the established term, the law is deemed adopted.
If during the reexamination, the law was again approved by the Verkhovna Rada by at least two-thirds of its constitutional composition, the President is obliged to sign it and promulgate it within ten days. In case this law was not signed by the President, it will be promptly promulgated by the Chairman of the Verkhovna Rada and published with his signature.
Forms of government in the world
A presidential republic is a popular form of government among Latin American and African countries, where authoritarianism has led to low living standards and numerous human rights violations. Practically the only exception to this rule is the United States of America. The US Constitution gives broad rights to the President in terms of appointing and dismissing civil servants of all ranks, as well as concluding international treaties. The noteworthy presidential election system takes place through indirect voting. That is, Americans choose not the future president, but state representatives, who will vote for the candidate elected by the community. In fact, there have been only 27 amendments to the Constitution of the United States adopted in 1787; none of them concerned the change of the form of the government.
The semi-presidential republic is characterized by equal rights of the Parliament and the President. States with this form of government are often in a transitional phase with a tendency toward the gradual transfer of powers to the Parliament. As well as Ukraine, France is also a semi-presidential republic. The president doesn’t need parliamentary approval to appoint the prime minister and, on his proposal, other ministers. He has the right to impose the state of emergency, and under certain conditions dissolve the National Assembly (one of the houses of the bicameral Parliament of France). Compliance with the Constitution of France is ensured by the Constitutional Council, whose members are elected for 9 years without the possibility of re-election. One-third of the Council is renewed every three years. The Council’s decisions are not the subject of an appeal by any government agency.
Parliamentary republic. Finland is one of the states which at the end of the 20th – early 21st century began to gradually limit the power of the president, giving more powers to the parliament. The Constitution of Finland was adopted in 1999. At that time, the Republic switched from the presidential to parliamentary form of government. The Finnish president is elected by direct vote for 6 years. He has the right to veto, legislate, and exercises executive power jointly with the government of Finland – the Council of State. The Eduskunta (Unicameral Parliament of Finland) consists of 200 deputies. The position of Speaker of the Parliament gets the leader of the second largest party. Eduskunta elects the Council of State, adopts laws and the state budget, and has the full right to the constitutional control. That is, in Finland, there is no judicial body to declare the law unconstitutional. When the law contravenes the provisions of the Constitution, it is changed in favor of the latter. The parliamentary form of government also has the following European countries: Estonia, Austria, Bulgaria, Greece, Iceland, Italy, Germany, Poland, Croatia, Czech Republic and others. However, the scope of the presidential powers in these countries is not the same. For example, in Germany, which is also a parliamentary republic, the functions of the president are purely representative, he has no real power. He is elected not by popular vote, but by deputies of the parliament and representatives of local councils.
June 28, 1996 – Adoption of the Constitution of Ukraine
December 2004 – The Constitution was amended; Ukraine became a parliamentary-presidential republic.
September 2010 – the changes of 2004 were canceled, the previous version of the Constitution was restored; accordingly, Ukraine again became a presidential-parliamentary republic.
February 2014 – the Constitution of 1996 was restored; the form of government was changed again to the parliamentary-presidential.
June 2015 – The Constitutional Commission has agreed on a draft constitutional reform on decentralization.
June 2016 – Constitutional amendments were adopted in the sphere of justice.