the separation of powers in ukraine

Communist and Post-Communist Studies 32 (1999) 23–44

The separation of powers in Ukraine

Charles R. Wise*, Trevor L. BrownSchool of Public and Environmental Affairs, Indiana University, Bloomington, IN 47405, USA

Received for publication 15 December 1998

Abstract

This paper examines the passage of a new constitution in Ukraine in order to determinewhich factors contribute to the establishment of a stable separation of powers system at thenational level. We focus on three types of factors: legacies of the past; the structure of insti-tutions at key time periods; and the nature of dynamics between political groups. We find thatwhile all of these factors play some role in the evolving institutional arrangements in Ukraine,negative legacies of the past can be overcome by the decisions of new political groups andthe creation of new institutional arrangements. 1999 The Regents of the University ofCalifornia. Published by Elsevier Science Ltd. All rights reserved.

Keywords:Institutional reform; Constitutional development; Democratization; Ukraine

Introduction

On June 28, 1996 Ukraine became the last of the Newly Independent States ofthe former Soviet Union (NIS) to pass a new constitution. This document continueda system of divided power between an elected parliament and president, and a primeminister and cabinet appointed by the president and confirmed by the parliament.For those nations choosing a presidential or presidential-hybrid system, one of thekeys to consolidating democracy is the establishment of a working division of powersbetween major branches of government, notably the executive and legislaturebranches (Shugart, 1996; Zielonka, 1994), but also the judicial branch. The challenge

* Corresponding author. Tel.: 001-812-855-9744; Fax: 001-812-855-0269.

0967-067X/99/$19.00 1999 The Regents of the University of California. Published by Elsevier Science Ltd. All rights reserPII: S0967 -067X(98)00020-8

24 C.R. Wise, T.L. Brown/Communist and Post-Communist Studies 32 (1999) 23–44

for nations like Ukraine is to move from an unstable environment, characterized bydestabilizing conflict between the legislative and the executive branches, to a moreregularized system in which the basic institutions of government share power tostructure political interactions and thereby mitigate political and social conflict.While not guaranteeing such an outcome, the process of passing a new constitutionprovides such an opportunity.

Through an examination of legislative–executive relations and the process of con-stitutional passage in Ukraine, we demonstrate that a working division of powerscan be established by post-Soviet policy makers in the process of designing politicalinstitutions. We argue that the institutional arrangements framed in Ukraine’s newconstitution are the result of the interaction of three factors:

1. the structure of political institutions during the transition from one regime typeto another;

2. key historical legacies that established the framework for decision making andallocated power to key political interests; and

3. political dynamics as political interests bargained for control over the policy-process and the state’s assets.

The importance of political institutions and the division of powers

Institutions play a primary role in the consolidation of democracy (Diamond, 1996;Horowitz, 1993). Even those who contend that economic factors (Huntington, 1991,1996; Przeworski et al., 1996) or civic factors (Putnam, 1993) are the primary con-tributors to stable democracy, agree that the arrangement of political institutions iskey to understanding democratic consolidation. Political institutions play such animportant role because they structure the political process, determining what politicalgroups get to participate, what actions they can take, who gets to use what resources,and what the rewards and punishments are for each action. Diffusing power acrossinstitutions contributes to the democratization process by making it difficult for anyone branch of government, and therefore any one political group, to centralize power.Consequently, one of the fundamental questions democratic governments face earlyin their development is to determine the degree and nature of the division of powerbetween different political institutions and also the mechanisms for integrating polit-ical decision-making once power has been divided. Constitutions play a primary rolein establishing a stable division of powers. McGregor (1996) argues that constitutionsset the rules of the game, fix the parameters within which the political system oper-ates, and establish the boundaries of the political system. Our position is that consti-tutions are significant in setting the framework for political decision making, but therealization of that potential is conditioned by other key factors.

Presidents, parliaments and hybrids

Typically in the literature, the division of power issue has been framed as a choicebetween parliamentary or presidential systems. Several researchers highlight the fol-

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lowing flaws of presidentialism: tendency to have weak cabinets; unrepresentativeof the population, particularly when the president is elected with less than 50% ofthe vote; creates the problem of dual legitimacy since both president and legislatureare popularly elected; can lead to destabilizing elections because the fixed term inoffice raises the stakes for competing political groups; when multiple parties arepresent, increases the probability of immobilism in executive–legislative relations,by promoting ideological polarization, and making interparty coalition building dif-ficult to achieve; and finally prone to authoritarianism (Linz, 1990; Mainwaring,1993; Stephan and Skach, 1993; Roeder, 1994). Roeder argues that presidents, drivenby their desire to maximize control over the political process, seek to control themechanisms of accountability by dominating the legislative process and placing theexecutive out of the reach of political forces in the parliament. He also asserts thatthe strongest form of authoritarianism will emerge where cohesive parties rep-resenting the interests of bureaucratic elements of the former regime are a majorityin parliament. These parties delegate power from the parliament to a strong presidentwho has built an autocracy on the basis of bureaucratic support. Easter (1997) makesa similar argument. Based on a comparative analysis of institutional choices in East-ern Europe and the former Soviet Union, Easter finds that presidentialism was chosenin cases when elites were consolidated. Easter contends that when elites are consoli-dated they prefer presidentialism because it gives them exclusive access to the state’sassets and the policy process. Furthermore, Ludwikowski (1996) notes that individualleaders may advocate strong presidentialism as a palatable form of democracy duringtimes of crisis, but in actuality see it as the precursor to further centralization ofpower.

Horowitz (1990) argues that parliamentary governments are equally prone to insta-bility and points to a variety of examples in Asia and Africa, and notes the problemsfaced by 4th Republic France. Power and Gasiorowski (1997) tested the hypothesesconcerning the superiority of parliamentary institutions as they relate to democraticsurvival in the third world between 1930 and 1995. Their study found no superiorityfor the parliamentary form. They call for more attention toward issues of politicalprocess and policy outputs. Instability generally occurs in systems in which thereare multiple and weak parties in parliament with little basis for forming a governingcoalition (Agh, 1995). The inability to form a governing coalition inevitably leadsto an inability by the government to attend to pressing policy problems.

Rather than a clear distinction between presidential and parliamentary systems,many of the post-Soviet nations have traveled the hybrid route, adopting some formof semi-presidentialism (Ludwikowski, 1996). As noted earlier, Ukraine has a prem-ier-presidential system, with both a popularly elected parliament and a dual executivestructure consisting of a popularly elected president and a prime minister in someway accountable to both the president and the parliament (Wise and Brown, 1996a).Sartori (1994) contends that the rigidity and zero-sum nature of presidential systemsand the potential for inaction in parliamentary systems can be mitigated through theselection of context-specific mixed systems. But there is also a danger present inmixed systems of government; the presence of multiple institutions of governancemay contribute to destabilizing conflict between contending political forces. Accord-


ing to Zielonka (1994) many of the post-Soviet states have become mired in justsuch a destabilizing chaos, as political institutions have become one of the primaryprizes over which interests have competed. As to be expected, the primary axis ofconflict is typically between presidents and parliaments, although courts can play asignificant role as well (Ludwikowski, 1996). The achievement of a stable divisionof powers may become more difficult as more institutions have some claim on theauthority to govern.

Nevertheless, while mixed systems may enjoy the positives of both presidentialand parliamentary systems, they still run the danger of the potential negatives ofeach system. In particular, mixed systems may be characterized by: continued destab-ilizing conflict between contending political forces; and the emergence of authori-tarianism from destabilizing institutional conflict, as strong leaders or concentratedbureaucracies use the position of president and the relative weakness of a dividedparliament to centralize power. We examine the extent to which the positive andnegative influences come to the fore and to what effect.

Explaining the emergence of institutional arrangements

It is not sufficient to look at any one factor in isolation in order to understandwhether a stable system of divided powers will emerge. Instead, the complex interac-tion of a variety of factors needs to be examined together. According to Crawfordand Lijphart (1995), there are two competing arguments explaining the dynamicswhich shape institutional arrangements in post-Soviet nations—the “legacies of thepast” and the “imperatives of liberalization.”

‘Legacies of the past’ proponents contend that institutions are dependent variables,whose roots are exogenous to political dynamics, but which are found in past, cul-tural, social, governmental, and economic practices. Political actors can make choicesbut those choices are shaped, if not dictated, by past institutional arrangements. Insti-tutions are therefore highly durable and resistant to change (David, 1975; Tucker,1995). On the other side, ‘imperatives of liberalization’ proponents, while also view-ing institutions as dependent variables, see them shaped by a different independentvariable—current political dynamics (Bunce, 1997). Governmental institutions, parti-cularly at the time of transition, are thought to be highly flexible and subject toalteration (Geddes, 1995; Colomer, 1995).

Crawford and Lijphart call for a synthesis of these two approaches. They arguethat the current context in which political decision-making occurs determines whichlegacies of the past will become “politically central” in the transition process. Newinstitutions can shape which actors and groups will enjoy positions of strength withinthe political process, whether they be from the old regime or newly formed interests.For instance, the establishment of a parliament provides an arena for the formationof pluralistic interests in opposition to the former regime and its policies. While aparliament by no means guarantees that such interests will emerge, its presence cre-ates both the opportunity and the incentive for such interest formation since newlyformed groups can seek to have an impact on the policy making process.


As an example, Comisso (1995) focused on the importance of current politicaldynamics and the role institutions and past legacies play in shaping the nature ofbargaining between contending groups in an analysis of compensation law in Hun-gary. According to Comisso, decisions within the parliament on the passage of theCompensation Law were based not on the strength of a past heritage, but rather onthe political calculations of central actors. However, past legacies played a role byestablishing the policy issue on which political actors focused. Comisso demonstratedthat institutions constrain, but only when they accommodate the underlying compe-tition for power.

We agree that current political dynamics are largely responsible for outputs of thepolicy process and the shape of new institutions, and that these political dynamicstake place within an institutional structure and policy context whose roots extend toprior periods. We see institutional development as a complex iterative process, inwhich earlier institutional choices set the framework within which legacies and cur-rent political dynamics interact to produce new institutional choices. These choicesalter the decision framework and set off another interplay producing another set ofinstitutional modifications and policy choices.

At the early stage of regime formation, the existing institutional arrangement willpotentially have a large impact on both the structure of political forces and the emerg-ence of key political legacies. Thenceforth, the interaction between these factorscan produce an altered institutional arrangement. Subsequently, this new institutionalarrangement sets into motion a new political dynamic that places new policy issueson the governmental agenda. Consequently, institutions are both independent anddependent variables. They function as independent variables shaping the context ofcurrent political decision making. They are dependent in the sense that they aresubject to both historical factors and current political dynamics.

For a variety of reasons analysts must be cautious in predicting the impact ofhistorical legacies. First, legacies are plural and not singular. Various legacies,developed at different times in history, are not necessarily complementary but maycontradict each other. Second, some legacies may be supportive and others detrimen-tal for constructing democratic institutions. Third, while certain legacies may leadpolitical actors to prefer certain institutional arrangements, they often result in unin-tended consequences in a new political environment. Thus, arrangements that seemedto reinforce state control by one elite group in the Soviet authoritarian system canhave different effects in a more pluralistic democratic environment.

In confronting the collapse of the former regime, historical legacies shape theactions of political actors, but they confront a new political environment and differentdecision choices. Once choices of new institutional arrangements are made, the newpolitical dynamics can allow different interests to be articulated than those that pre-dominated previously. A different interplay among political forces may arise thanthat which existed during the prior regime. However, as time passes bargains madebetween political actors may accumulate to strengthen the existing set of institutionalarrangements, making them more difficult to change (Geddes, 1995).

Turning to the question of the division of powers and the passage of the consti-tution in Ukraine, three primary factors have to be analyzed in order to understand


the movement towards a new political order: (1) the structure of institutions at thetime of transition and the effect they have on political interactions; (2) key legaciesof the past which shape institutional arrangements, the policy context and the inter-ests of political groups; and (3) the nature of political dynamics between key groups.

The case of Ukraine

Since the transition and the establishment of transitional institutions in Ukrainehave been analyzed extensively elsewhere, we will only highlight the key pointsfrom these periods as they relate to our arguments in this paper.1 The second halfof this section focuses on the movement from a set of transitional institutions to thecurrent constitutional arrangements. We demonstrate how the interaction of the threefactors identified above have contributed to the development of a working divisionof powers. Finally we speculate on future developments in the post-constitutionphase. The analysis covers two periods: (1) from independence to the adoption ofan interim constitution; and (2) from the interim constitution to the adoption ofthe constitution.

From independence to the passage of the Power bill2

Institutional arrangementsWhen Ukraine became independent in 1991, a key decision was made that set the

framework within which the power struggle over the constitutional design wouldtake place. The decision was to amend the existing Republic Constitution to createthe office of president. While the Communists dominated the parliament and werestrongly opposed to the addition of a presidency to the institutional mix, democraticreformers and nationalists succeeded in creating the institution of the presidency.They succeeded by arguing that a strong unified political institution was needed asa means of ensuring Ukraine’s independence and sovereignty. The public supportfor independence was so strong that the Communists dared not risk being seen asresisting state-building measures. Instead of the nomenklatura pushing for the insti-tution of the presidency, it was the reformers who did so. Even though they werein the minority, nationalists and democratic reformers succeeded in large part becausethey were far more active in the policy-making process than the Communists inparliament. The result of interactions between key political forces were the threeprimary governing institutions: the president, the parliament, and the governmentcomposed of a prime minister and a cabinet, both appointed by the parliament. Whilethe authority to govern among these three entities was ill defined, conflict betweenthe branches was initially fairly low.

1 See, for example, Bilaniuk, 1994; Karatnycky, 1995; Martyniuk, 1992; Solchanyk, 1992; Wise andBrown, 1996a, b.

2 For a more detailed discussion of this period see Wise and Brown, 1996a, b.


Motyl (1995) argues that Ukraine’s first president, Leonid Kravchuk, perceivedhis role less as a policy-maker and more as a statesman, working to ensure thatUkraine became an independent state in the eyes of the international community.Even in the midst of a nationwide economic crisis, Kravchuk did not pursue aneconomic reform agenda. Had he done so he would likely have come into conflictwith the Communist dominated parliament. Instead Kravchuk kept his distance fromparliament, leaving domestic governance concerns largely to the prime minister andgovernment. The country continued to deteriorate economically and the governmentdid not address the growing economic crisis. Consequently, while the existence ofthree institutions of national governance created the opportunity for a destabilizinginterbranch conflict, it did not materialize. This was the case because neither thepresident, the prime minister and the government, nor the parliament pursued divisivepolicy objectives. However, interbranch peace was bought at the expense of policyineffectiveness, accompanied by decreasing popular legitimacy of the government.

Presidential elections in 1994 dramatically changed the dynamic between nationalpolitical institutions, as Kravchuk lost to Leonid Kuchma, the prime minister underKravchuk from 1992 to 1993. Kuchma moved quickly to promote a multi-prongedagenda of establishing law and order, liberalizing the economy, and reforming thegovernment. These last two policy objectives in particular put him in opposition tothe Communist dominated parliament. The election of a president bent on reformingthe economy prevented the Communist block from dominating the government. Theexistence of the presidency, being occupied by a president with a fundamentallydifferent economic program than that of the Communist bloc in parliament, set thescene for confrontation with regard to the separation of powers. The early decisionto create the presidency established the framework for the emergence of a politicalconflict between major contending forces over the future direction of the country.In addition, it ensured that there would be an incumbent president in a position toadvocate for the position of the presidency in the design of a new constitution.

Eventually, Kuchma began to appeal to the public that a stronger president wasneeded to reform the economy, and used the threat of a referendum on the status ofthe president and parliament to pass an interim constitution which put more powerin the hands of the president. At that time, Kuchma’s popularity was high while themajority of the public held a negative view of parliament. Faced with the possibilityof marginalization, if not extinction, the parliament voted to pass an interim consti-tution—commonly referred to as the ‘Power bill’—into law in June 1995. This docu-ment was to govern affairs for a year until a new constitution was passed.

The ‘Power bill’ strengthened the power of the president and reduced the powerof the parliament. In particular the president was given exclusive authority to appointthe prime minister, the cabinet, and a handful of other key state officials, withoutthe confirmation of the parliament, although the parliament retained the right to passa limited vote of no-confidence in either the government as a whole or in an individ-ual minister.3 Second, the president now had the power to reorganize the executive

3 According to the ‘Power bill’ once the parliament approved the government’s program at the begin-ning of the year, they gave up the right to pass a vote of no-confidence until the next session commenced.


branch at will and in the absence of a functioning judiciary was given the authorityto determine whether a law was in compliance with the constitution. However, con-trol over subnational government bodies remained ambiguous, with possibilities forinfluence by both the president and the parliament.

On the administrative side of things, in order to have his policy proposalsimplemented, Kuchma had to have the support of the government, since it wouldbe the primary instrument of implementation. Instead of directly challenging primeminister Vitaly Masol, who was an old-line Communist supported by anti-reformelements, Kuchma appointed several vice prime ministers and assigned them signifi-cant policy responsibilities, while assigning unimportant tasks to Masol. The insti-tution of the presidency created incentives for an activist president to expand his roleby increasing the power and scope of the institution—a tendency also experienced inother countries such as Poland, Slovakia, Bulgaria, and Romania (Baylis, 1996).Within half a year of the presidential election, Kuchma had succeeded in creatinga presidential administration to parallel the prime minister’s government and hadweakened Masol’s authority over policy decisions. Nonetheless, the basic issue ofwhom the bureaucracy was responsible to and for what, was unresolved. It was fairlycommon for a given ministry to receive communications from the president’s staff,the prime minister’s staff, the parliament chairman’s staff, and from parliamentarycommittee chairmen telling them to do different things. In such an institutionalenvironment, the ministries had more autonomy to ‘choose their master of themoment’ or to wait until the struggle over the issue was resolved by the contendingpower centers. In the new institutional context, the incentives to follow the dictatesof a monolithic elite were replaced with incentives to maximize one’s own powerin a more pluralistic context. In such an institutional environment, organizationalanarchy proved a greater danger than authoritarian hierarchy.

Thus, a separation of powers system with major actors such as the president, theprime minister, and the parliament results in a competition for power—a competitionfueled further by the need to respond to the new policy imperatives and the politicaldynamics surrounding them. The ‘Power bill’ fixed the framework for this compe-tition and ensured that it would continue into the next phase of institutional develop-ment.

Legacies of the pastIn order to understand the political dynamics underlying the decisions about con-

stitutional structure, one must focus in part on the legacies of the past that influencedpolitics in Ukraine. Prior to 1991, Ukraine had only three years of experience as anation-state, from 1919 to 1922. Consequently, when the Soviet Union fell in 1991,some questioned whether Ukraine could overcome its lack of governance experienceand establish itself as a sovereign nation state with an identity separate from Russia(Motyl, 1995). At independence, there was good reason to believe that elements fromthe past regime would dictate the course of transition. For one, while nationalistsand democratic reformers were key players in Ukraine’s move to independence in1991, the legacy of Soviet rule left Communists entrenched, both in elected positionsand in the bureaucracy.


In the absence of a complete rupture from the past regime, it may have beenexpected that the legacies of the past would dominate. Nonetheless, it is necessaryto examine several such legacies in terms of the altered context. While there areseveral legacy factors at play in Ukraine, there were three legacy factors that werestructural in nature and that had particular pertinence for the struggle over consti-tutional design. They were not necessarily compatible with each other, and, in fact,were to some extent, in conflict. They were as follows:

1. Preference for one man rule. The first structural legacy factor stemmed from theexperience of the regime prior to Soviet rule. Tucker (1995) hypothesizes that acultural determinative factor, born out of a history of Tsarist rule, was rebornunder Stalin. The extent to which such rule is fondly remembered by the Ukraini-ans may be questioned, since several million people starved to death in 1933 asa result of Stalin’s deliberate program of shipping Ukrainian food to Russia. How-ever, it may be argued that having a ‘leading ruler,’ such as a president, can beidentified with having a nation. The peoples of the Ukrainian region were longaccustomed to identifying a central ruler with statehood. Naming a president wasclearly seen as an imperative for emphasizing national sovereignty at the pointwhen the parliament declared independence. While the left did not favor the estab-lishment of the presidency, it was successful in placing the former party secretaryand then chairman of the left dominated parliament in the presidential office.

2. Plural elite governance. It should be remembered that the leadership of the SovietUnion was not always characterized by one man rule, such as that experiencedunder Stalin. The preference for party rule ran counter to and was in tension withpersonal rule or ‘personality cults.’ In fact in the post-Stalin period there werearrangements to preclude so much power residing in one individual. A priorgovernance habit that was clearly visible was the preference by the Communiststo create plural leadership structures that they hoped to dominate. In Ukraine’snew parliament, the Presidium totally controlled by the left was instituted andinitially controlled legislative action.

3. Bureaucratic administrative control. Another prior governance factor that orig-inated in the Tsarist period, and was substantially enhanced under the Soviets,was the reliance on a large bureaucracy to steer and control financial, economic,social, and cultural affairs of the nation. The Soviet bureaucratic headquartersin Moscow supervised the bureaucracies and most enterprises in the constituentrepublics, thereby controlling major economic assets. At the time of indepen-dence, the ministries in Kiev remained in place and there was no wholesale house-cleaning of personnel. Thus, most of the officials from the Soviet regime con-tinued in their positions.

While all three legacies existed at the time of independence, they each hadassumed different meanings in the new context. The legacy of bureaucratic controlprovides a good example. Under the Soviet system, most major Ukrainian enterpriseswere controlled directly through the ministries in Moscow. This was done to ensurethe integration of Ukrainian enterprises with other enterprises located elsewhere inthe Soviet Union. This ensured that Moscow alone could control production.


However, when the Soviet Union broke up, not only was the Union governmentdissolved but the Soviet command economy apparatus was also dismantled. ThoseUkrainian enterprises previously controlled from Moscow were not only cut off fromtheir controllers, but also from many of their sources of finance, supply, distribution,and markets. In this context, even those enterprises that were previously controlledby ministries in Kiev would see that relationship altered. In addition, the Ukrainianministries in Kiev had lost their moorings in Moscow as well, and had to adaptto a new Ukrainian governmental structure. However, there were no clear lines ofresponsibility from these new institutions to either ministries or enterprises.

At the same time that the enterprises were granted greater autonomy, they werestruggling for survival. Initially, after independence, the ministries had resources andthus could exercise some influence over the enterprises, but these resources dimin-ished as the economy declined. From the perspective of an enterprise director, influ-ence over his actions had more to do with who could supply needed resources andless with fealty to governmental elites in Kiev. As a result, hierarchical control bya single all powerful authoritarian leader who could direct the course of events inthe enterprises was no longer an accurate description of Ukrainian bureaucratic man-agement. Management had become more of a national bazaar in which enterpriseswere in a desperate search for resources and were willing to accord some influenceto whichever set of elites could supply them, whether those elites were located atthe national, regional, or local level. It was much more of a bargaining game thana command game.

In addition, such legacies as one-person rule and a preference for plural elite leftistgovernance could not be readily accommodated in a new context in which the elec-tions selected participants, and establishing the identity and security of the nationmoved to the top of the governmental agenda. These legacy factors would still playa role, but they would be interacting in different ways within the new institutionalstructure and would be subject to new political dynamics existing in the new politicaland economic environment.

Political dynamicsAs Comisso (1995) points out, policy choices ultimately are related to political

forces that are independent of political institutions. In the mid-1990s, the dominantagenda item was how to respond to the economic crisis, and there were fundamen-tally opposing forces at play related to that question. Certain economic sectors sawrestructuring and gaining access to Western technology and capital as the only sal-vation for the stranded and decaying industries. Others demanded that their ties withthe Russian enterprises be reestablished to ‘normalize economic relations.’

Kuchma’s economic program fundamentally represented the ‘restructuring’ forces,and the left bloc represented ‘normalizing’ forces. Kuchma’s attempts to liberalizethe economy, restructure the tax system, and reorganize agriculture and industry wererepeatedly blocked by the Communist-Socialist-Agrarian block in parliament.4 Since

4 While the Communist faction actually gained seats in the 1994 parliamentary elections, the cohesionof the faction quickly began to weaken. New parliamentary factions were formed by deputies departing


the nationalist and reformist groups in parliament remained fairly disaggregated,Kuchma began resorting to executive decrees, turning the presidency into a lawmak-ing institution. Consequently, policy battles between Kuchma and the Communistsin parliament over reforming the economy, privatization, the intergovernmental sys-tem, and the reorganization of the agricultural and energy sectors, broadened toinclude conflict over which branch of government had the authority to rule over keypolicy areas and in what way. Central to these policy battles was the mega-issue ofwhat kind of economic system Ukraine was going to have.

The ideological split between the dominant left bloc in the parliament and thereformist president heavily influenced both the decisions over policy and the structur-ing of government. The reformist groups in the parliament were placed on the hornsof a dilemma. On the one hand, they had an interest in preserving the prerogativesof the representative body—the parliament—as the basis of a democratic govern-ment. On the other hand, as economic reformers, they had an interest in supportingthe president who shared their economic reform goals and an interest in diminishingthe power of the left. In the end they chose the latter. They particularly supportedthe president in his desire to control the bureaucracy, even if it diminished the primeminister’s control. And they also largely backed his preferred intergovernmentalstructure, placing subnational units under tighter presidential control rather thansubordinating them to a plural elite that they equated with the ‘rule by the soviets.’This phenomenon was not unique to Ukraine. As it occurred elsewhere, decisionsabout institutional matters with longer range implications for politics and policy havebeen made on the basis of short-term political interests. In several Eastern Europeancountries, whichever party controlled the presidency supported broader powers forthe president, whereas parties in opposition to the president sought to limit the presi-dent’s powers (Geddes, 1995).

While reformist parliamentary groups were unable to provide Kuchma with a legis-lative majority for any of his policy proposals, they formed the core of his supportin the passage of the ‘Power bill’. They agreed to give up parliamentary power inorder to ensure that leftist groups would not be able to continually hamstring econ-omic reform efforts. They feared the legacy of the leftist plural elite much more thanthe potential for authoritarianism under one-person rule. While they were forced togive up some power to the president, they gained the transference of significantinstitutional power away from the Communists and into the hands of a presidentwho, they perceived, would follow the economic reform path closest to their prefer-ences. Groups on the left that did vote for the ‘Power bill’ did so not for policyreasons, but because they faced possible extinction in the policy process if the presi-dent won his proposed popular referendum.

the ranks of the Communist faction, notably the Socialist faction who served as the primary partner ofthe Communists in voting against Kuchma’s reform proposals.


From the Power bill to the constitution

The passage of the ‘Power bill’ set the stage for the next round of political andinstitutional dynamics. Structurally, the president certainly had gained significantpower relative to the parliament, but by no means had he gained centralized controlover government. In particular, control over subnational governments remainedambiguously defined. It was in the regions that the assets which held the key toUkraine’s economic future were located and controlled. Second, Kuchma had yet todemonstrate he could control the government, even though the ‘Power bill’ expresslyindicated that the prime minister and cabinet ministers were subordinated to thepresident. While the left had been dealt a serious blow, by agreeing to pass the‘Power bill’ they remained in the game. Furthermore, many on the left felt that thepublic would now hold Kuchma responsible for the performance of the economy,thereby setting him up for a future downfall should he fail to reform Ukraine’s dismaleconomy. Finally, the presidential and parliamentary elections in Russia were onlya year away. If the Communists were able to control the Russian Duma and win thepresidency from Yeltsin, leftist factions in Ukraine calculated that this would changethe political quotient in Ukraine as well, and bring them back to power. By makingcompromises on structural issues in the interim constitution, the left hoped to remainpolitically viable and triumph in the final structural framework of the permanent con-stitution.

Institutional arrangementsThe ‘Power bill’ set the framework for interactions over the structure of power

in the permanent constitution. It also ensured that there would be a separation ofpowers in the permanent constitution, in that neither power center would be in astrong enough position to eliminate the other. While the interim arrangement waspresidentially centered, there were numerous ambiguities and unfinished items thatrelated to the powers of the respective branches. While some analysts in Ukrainesaw the passage of the ‘Power bill’ as another step in the movement towards theauthoritarian regime, we offer an alternative assessment, one which is much moresanguine about the possibility of developing a functional division of powers in post-Soviet nations like Ukraine.

On its face, the ‘Power bill’ did assign important governmental powers to thepresident. This did not necessarily mean that he had the implementing mechanismsat his disposal to use that power effectively. It is important to recognize centrifugaltendencies in most executive branches which tend to propel them toward organiza-tional disarray. This is particularly likely in nations transiting to a new regime type.Executive structures are just as likely, or more likely, to approximate anarchy thanthey are operating based on a smoothly functioning hierarchy unified under the presi-dent. Furthermore, in dual executive structures like those found in Ukraine there islikely to be further disunity within the executive. Baylis (1996) has already demon-strated this in his analysis of East Central European countries with dual executives.In fact, Baylis concluded by saying that in many cases the dual executive structure,by separating power between entities, has contributed positively to the consolidation


of democracy because there were more checks on the centralization of power by anyone branch. An analysis of post-‘Power bill’ developments in Ukraine demonstratesthat the dual executive structure was likely to make unified coordination more ratherthan less difficult within the executive.

With the passage of the ‘Power bill’ it appeared as if Kuchma’s control over theministries would increase, particularly since he now enjoyed the power to appointa like minded prime minister. However, there was no mention of the president’svice-premiers in the ‘Power bill’, so their authority over the government remainedunclear. Originally these ‘super ministers’ were created to coordinate the reformefforts of the heads of the ministries. Such coordination failed to materialize. Instead,there was a high level of competition both between the ministries and the vice prem-iers and even among the ministries. For instance, the Interior Ministry and the Pros-ecutor General’s office engaged in fierce debate over who has the right to conductinvestigations (Yurchuk, 1996a). A resolution to this conflict has not as yet beenfound.

Kuchma faced an interesting dilemma. Now that he had the power to appoint alike minded prime minister, it appeared as if the need for the vice premiers was notas great, since the prime minister could concentrate on managing conflict betweenthe ministries. By removing the vice premiers Kuchma could potentially eliminatea layer of conflict. However, in doing so, Kuchma would be transferring significantpower to his prime minister, thereby giving him the opportunity to centralize hisown power and establish a foothold within the ministries. On the one hand, Kuchmacould distance himself from the government’s program by letting the prime ministerrun the government. On the other hand, Kuchma could consolidate his own controlof the ministries and the government’s program and be directly responsible for itssuccess or failure.

Kuchma began with the first strategy, but moved to the second. With the passageof the ‘Power bill’, Kuchma appointed Yehven Marchuk as prime minister. Therelationship between Kuchma and Marchuk began smoothly, with Marchuk success-fully navigating a reformist budget through parliament. However, eventually Kuchmafeared that if given too much power over the government Marchuk might began tobuild his own political organization, capable of challenging the power of the presi-dent or setting himself up for a run for the presidency in 1998. Since the economyhad not been performing as well as he had expected, Kuchma began to play theblame game, claiming that government ministers had controverted his decisions andtherefore needed to be removed (Yurchuk, 1996b). In order to distance himself fromthe government’s economic program, Kuchma began firing ministers (Pohorilova,1996). On May 27, 1996 Kuchma dismissed Marchuk. However, while removingMarchuk from the government, Kuchma could not remove him from the politicalscene. Marchuk has since built a political base from which he could mount a chal-lenge to Kuchma in the next presidential election. Marchuk could follow Kuchma’sown path to power in that he too had been dismissed as prime minister only to riseto the presidency. This showed that the president could appoint prime ministers, buthe could not control their policy actions or their political ambitions.

Furthermore, while the parliament had conceded that it had lost direct control over


the ministries, at least for the time being it continued to look for a way to influenceministerial decision making. In particular, in the early part of 1996, the parliamentbegan discussing the creation of a control chamber that would have the power toreview individual ministry spending decisions. Thus, Kuchma remained locked in astruggle with the parliament over controlling the government.

Kuchma also attempted to establish control of subnational governments by creatinga system of subnational appointments. Upon election, Kuchma quickly passed adecree reestablishing a vertical-executive hierarchy, and solidified his formal controlof subnational governments relative to the parliament in the passage of the ‘Powerbill’. Municipal governments were again subordinated to the president. But asKuchma discovered with the vice-premiers, the power of appointment was no guaran-tee of control. Yurchuk (1996c) argued that Kuchma’s management problems at thecenter were the result of conflicts between regional clans at the periphery. In parti-cular there was a war for political influence between Kuchma’s Dniepropetrovsk clanand the Donetsk clan. The appointment system represented an attempt to diminish thestrength of opposing regional clans. However, Kuchma has few levers of influenceover state enterprise directors and subnational officials; the infrastructure of controlis not yet fully developed.

In sum, while the passage of the ‘Power bill’ further concentrated formal powerin the presidency, Kuchma had yet to establish operational power over either thecentral government in Kiev or the vast array of subnational governments operatingthroughout Ukraine. The lack of control over key operations within the government,however, motivated the president to continue to extend his reach. In some degreethis disarray within the executive branch was inherent in the dual executive structurewhere a prime minister and a president shared executive power. But it was alsocharacteristic of transiting societies that institutional development takes time. Wehave already argued elsewhere that we should not expect the Ukrainian parliamentto institutionalize at a quick pace (Wise and Brown, 1996a, b). Neither should weexpect the executive branch to become a smoothly functioning hierarchy in thecourse of six years.

The ‘Power bill’ set the stage for the constitutional struggle, but it did not predeter-mine the outcome. In the course of the left–right struggle, various elements in theparliament, especially the center and right factions, focused on parliament’s insti-tutional prerogatives. The shape and form of the new constitution, and whether itwould even be passed, remained an open question.

Legacies of the pastLegacy factors continued to play a role in the determination of the structure for the

permanent constitution. The left continued to hold out for the defeat of the reformistpresident’s initiatives in order to establish the case for the elimination of the presi-dency and the return to a structure of rule by the Soviets. The left’s draft constitutionprovided for no presidency, but had an interlocking structure of parliaments atnational, regional, and local levels which was intended to re-establish the hegemonyof the leftist elite. Meanwhile, privatization had moved hardly at all, with largecollective farms and almost all large enterprises still owned and subsidized by the


state. The left calculated that public dismay with the lack of economic progress anda deteriorating standard of living combined with the influence of a resurgent left inRussia would allow them to defeat the president and re-establish their hegemony.However, the passage of the ‘Power bill’ demonstrated that certain key legacies fromthe past lost their salience. For one, the dominance of the Communists in parliamentwas significantly reduced. Another institutional change that caused further dilutionof the left’s elite dominance was the formal recognition of factions as a primaryelement for organization of the parliament. This provided the basis for organizationagainst the left. By the passage of the ‘Power bill’ over 90% of the parliament’smembership belonged to one of 11 factions in the parliament (Wise and Brown,1996a). While the Communists became more divided after the parliamentary elec-tions in 1994, the factions on the right and in the center slowly became somewhatmore cohesive. As it happened in several Eastern European countries, the successorparties to the old communist party have shown a tendency to fragment (Geddes,1995).

The effect of other legacies remained open questions after the passage of the‘Power bill’. First, while the passage of an interim constitution suggested that acertain degree of political-institutional stability had been achieved, Ukraine had yetto demonstrate that it had established itself as an independent nation capable ofgoverning its own affairs. The resurgence of the Communist Party in the RussianDuma and the rise of Gennady Zyuganov, the Communist Party leader, as a potentialcontender for the Russian presidency made these analysts fearful that Russia wouldattempt to rebuild its former empire (Reynolds and Luhoyk, 1996). Key politicianson the left harbored hopes that Russian pressure, if not intervention, could strengthentheir hand in the power struggle with the president. At the same time, the fundamentalissue over whether state ownership of land and primary economic enterprises wouldcontinue was channeled into a fundamental interbranch struggle within the contextof the debate over the direction of economic policy.

Political dynamicsAs per the specifications of the ‘Power bill’, a Constitutional Commission, com-

posed of representatives from both the parliament and the president, was convenedto draft a new constitution for Ukraine (Intelnews, March 20, 1996). Instead of debat-ing the Commission’s draft, which they thought gave too much power to the presi-dent, forces on the left, most notably the Communist faction, called for a nationalreferendum on the Communist version, which would return Ukraine to a parliament-centered regime and eliminate the position of the president. In order to hold a plenarysession to discuss and vote on the Commission draft, the center and right forces hadto garner 209 votes. Without the numbers to bring the document to the floor theyopted for another tactic, blocking any issue unrelated to the constitution. Thus, theleft leadership was unable to dictate the agenda and risked all policy initiatives beingusurped by the president. Faced with the possibility that no legislation could beconsidered until the constitutional issue was addressed, Speaker Moroz agreed tohold a special session to discuss the Constitution.

Parliamentary procedure stated that if the deputies started discussing the Consti-


tutional Commission draft, at least one alternative draft would have to be discussedsimultaneously. The special session convened a separate ‘agreement commission’that was to work out the differences between the various drafts of the constitution.For any constitution to be approved by the parliament it had to win 300 votes. Oncethe constitutional review process began, in the event that the vote threshold was notreached, all documents would have to be put before the people in the form of areferendum (Yurchuk, 1996d). Figuring that the ‘agreement commission’ would nar-row the choices down to two versions of the constitution—the Communist versionand one supportive of the president—the Communists knew that no side had thesufficient number of votes to pass either document into law. Initially they were bet-ting that when faced with clear-cut choice between the two versions of the consti-tution, the voters would side with the Communists. On the other hand, the presidentwas counting on the public’s growing outrage over the economic crisis and theresulting low popularity of the parliament.

In mid June, with slow progress in the parliamentary ‘agreement commission’,5

Kuchma returned to a successful tactic, announcing that he would hold a referendumon a version of the constitution that concentrated power in the presidency. His pri-mary argument for doing so was that Ukraine’s economic crisis demanded strongand decisive action that the parliament was preventing by blocking the adoption ofthe Constitution. Deputies came to realize that in the showdown, the public wouldprefer the decisive hand represented by the president to the bickering one representedby the parliament. Quickly the dynamic in parliament changed. Deputies on the right,to this point in support of Kuchma, now realized that the debate had moved beyondnormal legislative politics to a clear decision between a presidential republic with aweakened legislature and a more balanced system, in which the parliament remaineda central player. They appealed to the parliament to take up debate on the currentversion of the ‘agreement commission’ constitution.

On June 27, 1996 Speaker Moroz, together with the rightist and centerist forces,realized that the president had a major advantage going into a referendum, andappealed to the parliament to take up the ‘agreement commission’ version of theconstitution. Now, both the leftist and rightist forces agreed on the necessity to passa constitution that contained a better legislative–executive balance. The majority ofdeputies capitulated. At the end of a marathon, 24-hour session, the parliament passedthe constitution on the morning of June 28 with a vote of 315 for and 36 against(Intelnews, June 28, 1996).

With the passage of the constitution, the parliament reasserted itself as an insti-tutional force in Ukraine. Rather than the president’s version, that had a two-chamberparliament and a weakened role for the parliament in the legislative process, theparliament passed a version of the constitution that provided some power to the

5 Initially the Communists agreed to participate in the work of the ‘agreement commission.’ However,forces on the right and center converged relatively quickly on a version of the constitution which, whileincreasing the power of the parliament, afforded some power to the president. Faced with a relativelyunified right and center, the Communists refused to participate in the work of the ‘agreement commission.’Nevertheless, right and center forces continued to work on their draft of the constitution.


president, but had only a one chamber parliament and restored to the parliamentsome power over the formation of the government. Had the parliament not passedthe constitution it would have become politically irrelevant. Furthermore, the leftwould have lost the cherished perquisites of office, but more importantly it wouldhave had to cede control over the privatization process to interests represented inthe executive branch.

Post-constitutional dynamics

In the aftermath of the passage of the Constitution, left–right and interbranch con-flict continues. Nonetheless, it is taking place within the constitutional framework.The following cases illustrate the kinds of separation of powers issues that arebeing contested:

Control of subnational governmentsThe process of passing the constitution provided a new forum for the ongoing

struggle between the president and the parliament over which institution should con-trol subnational units of government. Eventually, both sides agreed to leave parts ofthis question unresolved, although a consensus was reached that municipalities, inprincipal, should be allowed a limited degree of local autonomy. The constitutionstipulated that a number of framework laws would have to be passed, namely a localgovernment framework law and a law regulating intergovernmental finance. To somedegree, the parliament achieved a victory in this battle, since the framework lawrequirements of the constitution meant that the conflict would take place within theparliament. To date, laws regulating intergovernmental finance and control overoblast administrations and councils remains unresolved, but the bargaining betweenthe branches and the factions continues.

Control over the cabinet of ministersIn addition to postponing conflict over control of subnational governments, the

constitution also postponed conflict over control of the cabinet of ministers. Whilethe constitution enumerated the powers of the president and the parliament, it didnot exhaustively discuss the structure or formation of the government. It clearly statesthat the president, after consulting with the parliament, has the power to appoint theprime minister to serve as head of the government, subject to the confirmation ofthe parliament. It also states that once appointed, the prime minister, and not thepresident, has the power to appoint his cabinet. However, the constitution did notclearly stipulate the relationship between the president’s administration and the cabi-net, nor to whom the prime minister and cabinet were subordinate, parliament orpresident. These details were to be worked out in the passage of a framework lawon the cabinet of ministers.

The president moved first, passing a decree in December 1996 which stipulatedthat the ministers of the interior, foreign relations, information and defense weredirectly subordinate to the president (Intelnews, December 20, 1996). At the timethe parliament had just begun work on the draft law on the cabinet of ministers. In


late January 1997, parliament approved a law on the cabinet of ministers which, inaddition to other powers, gave the cabinet the power to: countersign presidentialdecrees; conduct interior and foreign policy; and regulate the activities of localgovernment (Yurchuk, 1997). Furthermore the law sets the maximum number ofcabinet ministers at 25, and, most importantly, stipulates that the cabinet is inde-pendent of the president and accountable to the parliament. With the president’sdecree and the parliament’s law clearly in contradiction, the issue seems ripe for ahearing by the newly formed constitutional court. To date, the issue remains unre-solved.

Control over privatizationWith the collapse of the Soviet regime, Ukraine inherited control over all state

owned enterprises and assets within its borders. Consequently, in the movement toa market based economic system, control over the privatization of these assets wasa central battle ground both between reformists and leftists, and between the presidentand the left dominated parliament. Soon after independence, an administrativeentity—the State Property Fund (SPF)—was established to manage the privatizationprocess. Since its creation, it has not been clear to which branch of government theSPF is accountable, and like many other issues the constitution does not clearlyresolve the question.

In late December 1996, the parliament amended the existing privatization law to,among other operational changes, make the SPF accountable to the parliament. InJanuary 1997, president Kuchma vetoed the amended law, and passed a decree whichrejected the operational changes suggested by the parliament. In addition, the presi-dential decree stated that the SPF was accountable to the president via the cabinetof ministers. In mid February 1997, the parliament responded, conceding someground to the president on the operation of the SPF, but overrode his veto on theultimate control of the entity. The final wording of the law indicates that the SPF“is under operative subordination to the cabinet and is accountable and under controlof parliament” (Intelnews, February 20, 1997).

The constitutional courtThe constitution also called for the creation of a constitutional court, assigned the

task of interpreting the constitution and resolving conflicts between the parliamentand the cabinet and/or the president in the event that these entities pass conflictuallegislation and decrees. The details of the court’s structure and operation were out-lined in a post-constitutional framework law drafted by the parliament and signedby the president. Kuchma signed the final version of the Law on the ConstitutionalCourt in September 1996. Since that time 18 judges were sworn in, six chosen bythe president, six by the judiciary, and six by the parliament. The former directorof the president’s legal department, Ivan Tymchenko, was appointed head of theconstitutional court.

As we argued at the beginning of this paper, the establishment of a working separ-ation of powers is crucial for the consolidation of democracy in Ukraine. We contendthat the constitutional court, should it choose to do so, can play a fundamental role


in normalizing the conflict between the president and the parliament. The case ofthe parliament’s attempt to oversee and control revenues and expenditures of theexecutive branch is noteworthy.

Article 98 of the Ukrainian constitution creates a Control Chamber to oversee‘resource utilization’ by the executive branch. The specific powers of the Chamberwere outlined in law on July 11, 1996, two weeks after the passage of the consti-tution. According to the law, the Control Chamber was to be a body subordinate tothe parliament with the power to oversee the use of state-owned property, the privat-ization process, monetary emissions, the granting of loans to other countries, the useof credits and loans from foreign countries, and the use of gold and hard currencyreserves. The law also gave the Chamber the authority to investigate the finances ofthe local government bodies and non-state public organizations. Article 19 of thelaw states

The Control Chamber has the power to exercise control over local self-governmentunits and local state administrations, enterprises and organizations, banks, creditunions, cooperatives, insurance companies and other financial organizations andassociations regardless of the form of ownership if they receive, manage or usefunds from the State budget. The authority of the Control Chamber extends tocitizen organizations, NGOs and non-profit organizations in cases when theiractivity includes usage or management of the funds from the State budget.

In addition, the law provided the Control Chamber with significant enforcementpowers. Article 26 states:

In cases when violations of the legal acts of Ukraine have been found, the ControlChamber has the power to initiate legal proceedings and inform the VerkhovnaRada.

Article 33 states:

In cases of non-compliance by the management of organizations subject to auditrecommendations of the Control Chamber, the Control Chamber has the right tofreeze all financial activities of the organization in question. The right to removethese sanctions belongs exclusively to the Collegium of the Control Chamber.

The powers of the Chamber were far reaching by any standard.In response, the president quickly vetoed the law, arguing that it usurped the

executive’s authority. However, the parliament succeeded in overriding the veto andthe president was forced to sign the bill into law. The law was published on October29, 1996. Soon after the parliament appointed a director of the Control Chamberand six members of a governing board. The Chamber commenced its activities duringthe summer of 1997, requesting information from the Ministry of Finance on theutilization of budget funds in the first quarter of 1997. During this time, the president


submitted a request to the constitutional court to review the constitutionality of theControl Chamber.

In two separate decisions—one in July of 1997, the other in December of 1997—the court reduced the powers of the Control Chamber. The court ruled that accordingto the constitution the Control Chamber only had the authority to oversee budgetaryspending. The court struck down the articles in the law that gave the Chamber controlover sources of budget revenues and wide-ranging powers to investigate public andprivate financial institutions. The court also removed the immunity from criminalprosecution enjoyed by Control Chamber employees, and revoked the Chamber’sauthority to seize documents and accounts of organizations and businesses withouta court-issued warrant. The court remanded the law back to the parliament specifyingthat the law needed to be rewritten in order to come into compliance with the consti-tution.

The presence of the constitutional court has also given the parliament a means ofdefending its authority. For instance, the president recently passed an executive orderthat subordinated the National Guard to the president. This executive order contra-dicted the Law on the National Guard passed by the parliament. As a result, a groupof 45 deputies appealed to the constitutional court. In response, the president quicklyinitiated amendments to his executive order, which gave the president and the parlia-ment joint control over the National Guard. The parliament agreed to the amend-ments, and the group of petitioning deputies withdrew their case. It is highly likelythat the court will continue to play a primary role in defining the powers of thelegislative and executive branches. There are still many institutional questions unre-solved.

Conclusion

As the foregoing demonstrates, new institutions had an important impact on struc-turing the political process in Ukraine. The radically changed context of indepen-dence and democratization also meant that the legacies of the past, while influential,would not be able to determine the politics of the new nation. As Crawford andLijphart argued, the current context in which key decision makers found themselvesaffected which legacies would become central in the decision making process.

The separation of powers pitted the president against a parliament dominated bythe left that became increasingly pluralistic over time, due, in part, to institutionalchanges in the organization and operation of the parliament. Once established, theseparation of powers became impossible for the left leadership to dominate. Instead,the president and various players in the parliament continued to engage in policywrangling and institution making. One result was the adopted constitution. Althoughthe passage of the constitution did not resolve all outstanding institutional issues, itensured that they would continue to be fought over within the boundaries of theseparation of powers system in which neither president nor parliament can eliminatethe other from a role in determining future institutional or policy changes.

Thus, we see the operation of a complex iterative process in which legacies and


institutions are interlaced. The left may have intended and preferred an extension ofits rule through a unified integrated system in which their chosen leader exertedstrong one-person rule as their agent, but in an independent democratic context theycould not control the votes nor thwart the independence of action afforded the newlyindependent president, who was not reticent in appealing to the public. The left couldtry to stop legislative action in hopes that a stalemate would work to its advantage.Such were their accustomed tactics honed through practice during the previousregime. Nonetheless, the president repeatedly threatened to go to the people and inthe democratic context of the new regime, the left had no counter. The separationof powers system thus became the political framework within which both policydisputes over the economic and the institutional future are being worked out. Theevolving institutional framework facilitated increased differentiation and articulationof interests as different groups formed factions and alliances within the parliamentover both policy and institutional issues.

The next stage of the left–right and executive–legislative conflict will be influencedby another institutional development embedded in the new constitution—the estab-lishment of the constitutional court. The court has had little opportunity to get itslegs under it before being plunged into high separation of powers politics. The issueof the rights and prerogatives of executive and legislative branches are squarely onthe agenda of the court.

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