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Ukraine’s constitutional debate: finding the way forward

A vital national debate about constitutional reform is under way in Ukraine. But the debate often takes no account of international political discussions or recent scholarly research. Can the new regime embrace this opportunity to lay down the foundations of a democratic future for Ukraine? Andreas Umland throws down the challenge

The various political crises of the past fifteen years have amply demonstrated that the Ukrainian Constitution, whether in its 1996 or 2004 version, is in need of revision. But the arguments about constitutional reform  being advanced in the Ukrainian mass media today largely ignore what political science has to say about the appropriateness of various forms of presidential rule for post-communist transition states.

So many of the current public exchanges about the division of political power Ukraine supposedly requires miss the point. They are mainly concerned with how much power should be accorded to Ukraine’s presidents in future. The arguments thus remain within the realm of a comparison between the “Kuchmism” of 1996-2004, and the dual rule of 2006-2010 – neither very successful periods in recent Ukrainian political history. Some people are even comparing Ukraine's semi-presidential proto-democratic system to Russia's pseudo-presidential authoritarian regime.

Ukrainian Parliament

Verkhovna Rada (Ukrainian Parliament): For Ukraine the consolidation of democracy is doubly relevant to the future of this young nation-state.

Making sense of the debate

Comparative political research suggests that what the country actually needs is a serious debate about the range and structure of parliamentary prerogatives. Ideally this would lead to the establishment of a political system dominated by the Verkhovna Rada, with a weak President. Alternatively, it could mean the creation of a de jure parliamentary republic with a non-elected figurehead President. At least, this is what the results of recent investigations by political scientists into the political systems in the post-communist space prescribe.

Most of the deliberations about changing the Constitution being played out on Ukrainian television at the moment are about whether Ukraine should have a presidential-parliamentary or parliamentary-presidential form of government. Many, if not most of those involved assume that Ukraine needs some form of semi-presidential government.

In the context of Ukraine, a presidential-parliamentary government means the original 1996 Constitution of Ukraine. This is effectively a super-presidential system where the Prime Minister is reduced to the role of an assistant to/scapegoat for/whipping boy of, the President.

The parliamentary-presidential model, on the other hand, refers to the real separation of powers that came into force on 1 January 2006. Since then, the Ukrainian state’s executive prerogatives have been divided between President and Prime Minister. Arguably, it is only since 2006 that the term “semi-presidentialism” has come to be applicable to Ukraine’s political system. Before that, the substantive powers of the President were more like a strongly presidential system of government rather than the kind of divided executive which a country like France enjoys.

Recent scholarly research

The problem with the debate raging over these two options is that it has been largely unaffected by what specialists on semi-presidentialism in Eastern Europe and the post-Soviet space have been publishing on the subject over recent years. Two major recent studies of democracy in Eastern Central Europe and the former Soviet Union have, independently, and using different methodologies, arrived at broadly similar conclusions on the question as to which political regimes are most conducive to sustainable democratization in post-communist transition states. In 2006, Steven Fish presented a seminal paper based on quantitative comparative analysis and tellingly called "Strong Legislatures, Stronger Democracies" in the influential Journal of Democracy (vol. 17, no. 1) published by the National Endowment for Democracy. In 2008, Robert Elgie and Sophia Moestrup published the collected volume Semi-Presidentialism in Central and Eastern Europe under the imprint of Manchester University Press. The conclusions by Fish, Elgie and Moestrup provide distinct, but equally clear criteria for assessing the effects on democratization of the various semi-presidential systems that Ukraine has enjoyed since 1991.

The two studies conclude that both presidential-parliamentary and parliamentary-presidential systems are problematic for young post-communist proto-democracies. Elgie and Moestrup, summarizing the results of their qualitative multi-author study of twelve Central and East European states, find that those models of semi-presidentialism where the president enjoys moderate or extensive prerogatives experience problems. Only semi-presidential regimes with a relatively weak, yet still popularly elected, president have experienced no significant harmful consequences for democracy. Elgie and Moestrup conclude: "More often than not [semi-presidentialism's] effect was somewhat negative, or at least unhelpful to the democratization process… The unhelpful impact of semi-presidentialism was particularly clear in the case of highly presidentialized semi-presidentialism [as Ukraine had until December 2005 - A.U.] and the balanced presidential-prime ministerial semi-presidentialism [as Ukraine has had since January 2006 - A.U.]." In their conclusion, they advise policy-makers that, "if democracy is fragile, then semi-presidentialism of any form is probably best avoided."

Where the legislature lacks muscle, presidential abuses of power—including interference in the media, societal organizations, and elections—frequently ensue, even under presidents who take office with reputations as democrats.

M. Steven Fish

In his statistical analysis of twenty-five post-communist countries, Steven Fish takes a somewhat different approach. He does not deal with semi-presidentialism per se. Instead, he measures the relative power of parliament, on the one hand, and the success of democratization, on the other. Fish finds a surprisingly clear causal relationship between them. How much power the Constitution accords to the legislature of a post-communist country has a direct bearing on the quality of the democracy in that country. In the 1990s, when the various countries adopted their constitutions, there was no meaningful correlation between the quality of democracy and the division of power. In the new century, however, those countries that had established relatively strong legislatures were significantly more democratic than those with relatively weak legislatures.

On that basis, Fish’s judgement concerning the various transition states in Central and Eastern Europe and on the territory of the former Soviet Union is even more explicit than Elgie and Moestrup’s. He concludes: "The evidence shows that the presence of a powerful legislature is an unmixed blessing for democratization" (emphasis in the original). Concerning the significance of the relationship between the strength of legislatures and the extent of democratization, Fish writes: "The correlation is very high. The strength of the national legislature may be a — or even the — institutional key to democratization." He advises: "The practical implications of these findings are obvious. Would-be democratizers should focus on creating a powerful legislature. In polities with weak legislatures, democrats should make constitutional reforms to strengthen the legislature a top priority."

It should be remembered that the authors of both studies based their findings on empirical research, i.e. actual experience. Much of what one hears in contemporary Ukrainian public debates, instead, is based on woolly political suppositions, odd cross-cultural comparison (for instance, with the US), or bold counter-factual conjectures. Worse, sometimes this or that constitutional arrangement is defended on the basis of historical speculation or metaphysical rumination.

Why democracy matters

Against this background, the key questions over the coming weeks are: do Ukraine's rulers actually want democratization to succeed? Are they ready to commit seriously to this aim? Or will they try to promote an alternative agenda focusing on economic recovery, political stability, and administrative reform? President Yanukovych's behaviour during the Orange Revolution in 2004 and recent actions by his government and Party of the Regions suggest the latter. The problem with this approach is that democracy is a crucial prerequisite for sustainable political stability, rational economic planning, and effective public administration. Contrary to a widely held belief in the post-Soviet world, parliamentary democracies provide the head of the executive with more power than semi-presidential systems, which divide and thus diffuse governmental prerogatives.

The strength of the national legislature may be a—or even the—institutional key to democratization.

M. Steven Fish

For Ukraine the consolidation of democracy is doubly relevant to the future of this young nation-state. It will provide a mechanism for resolving conflict between the country's rapacious economic elites, as also between the culturally distinct populations of the country's west and centre, on the one hand, and south and east, on the other. Democratization is also the key to Ukraine’s long-term international prospects, namely to the country’s prospects for  EU membership. The notion of European integration and the goal of eventually joining the EU constitute an important unifying idea that provides a common denominator for the otherwise deeply divided political camps and social groups of the west and east.

The outcome of Ukraine’s present constitutional debate is crucial in this respect. For the establishment of a parliament-dominated semi-presidential system, or even of a purely parliamentary republic, would represent an important step towards Ukraine's future political development and integration into the international community of democratic states.

 

Andreas Umland, DrPhil, PhD, teaches within the Master in German and European Studies program at the Kyiv-Mohyla Academy (www.des.uni-jena.de), and edits the scholarly book series “Soviet and Post-Soviet Politics and Society” (www.ibidem-verlag.de/spps.html).

About the author

Andreas Umland is a Senior Research Fellow at the Institute for Euro-Atlantic Cooperation in Kyiv, and General Editor of the book series, “Soviet and Post-Soviet Politics and Society” published by ibidem-Verlag in Stuttgart, and distributed, outside Europe, by Columbia University Press.

Read On

Constitution of Ukraine (1996)

Stronger Legislatures, Stronger Democracies, by M. Steven Fish, Journal of Democracy, Jan. 2006

Semi-Presidentialism in Central and Eastern Europe, by Robert Elgie (Editor), Sophie Moestrup (Editor), Manchester University Press; Reprint edition (February 17, 2009), 296 pages

How Ukraine Became a Market Economy and Democracy, by Anders Aslund, Peterson Institute for International Economics, 2009, 312 pages

More On

Would-be democratizers should focus on creating a powerful legislature. In polities with weak legislatures, democrats should make constitutional reforms to strengthen the legislature a top priority. The myriad problems that occupy the minds of democrats during the dizzying days of regime change, such as designing decentralization, crafting voting rules, building civil society, and controlling the military, may be of great importance. But if politicians fail to establish a national legislature with far-reaching powers, the people will soon find themselves in a polity where their votes do not count (or are not counted properly) and their voices are not heard.

 

M. Steven Fish, Stronger Legislatures, Stronger Democracies


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