Paul D'Anieri, Understanding Ukrainian Politics: Power, Politics, and Institutional Design, 2007.
6 The Constitution and Executive-Legislative Relations
In the previous chapter, it was shown that Ukrainian society is divided, but not hopelessly so. Ukraine's internal divisions create substantial challenges for forming the type of political compromises on which liberal democracy depends. Most important, Ukraine's pattern of regional and political cleavages indicates that it will likely have a multiplicity of political parties. However, little support was found for the proposition that Ukraine cannot sustain democracy. On the contrary, alliances have bridged not only Ukraine's regional divisions, but also, more recently, its ideological divisions.
If this conclusion is correct—that Ukraine can build representative democracy, but that there are tendencies toward division—then the design of institutions will be crucial. Institutions shape the incentives of political actors, and thus determine whether the organs of government will overcome societal divisions or exacerbate them. In this chapter and those that follow, we consider the design of institutions, with particular reference to two questions. First, to what extent have Ukraine's institutional arrangements created balance among the leading branches of government? Second, to what extent have Ukraine's arrangements created the conditions in which a stable parliamentary majority is likely to arise?
In institutional terms, the analysis must begin with the constitution, within which other institutions are "nested."1 The electoral laws, laws on political parties, and rules of parliament, which will be considered in subsequent chapters, must all fit within the constitutional framework, at least in theory.2
Ukraine, along with all the other members of the Commonwealth of Independent States except Moldova, has had a strongly presidential form of government, though its presidency is now more constrained under the December 2004 amendments.3 The choice of a presidential system differs both from the modal choice in the West European democracies, and from the most notable successes in postcommunist Eastern Europe, such as Poland, Hungary, and the Czech Republic. Is it a coincidence that, at least at first glance, those postcommunist states that have chosen strong presidential systems are less democratic than those that have chosen parliamentary government? Even if presidentialism is linked to weak democracy, as Gerald Easter has shown,4 we must ask what is causing what. Is it that presidentialism impedes democratization, or that less democratic polities are more likely to choose the presidential form of government?
In this chapter, I aim to show that Ukraine's 1996 constitutional arrangements contributed to giving the president so much power that he had little incentive to collaborate with parliament. Moreover the legislative power given to the president reduced the likelihood that parliament would form a stable governing coalition. However, Ukraine's problems are only partly in the constitutional realm. In terms of institutional design, the choice of electoral laws and the internal rules of the parliament have had as much impact as the constitutional division of powers. Equally important, the extraordinary power held by Kuchma stemmed only in part from the formal rules. His power was also based in the informal powers he accrued, which will be discussed in Chapter Nine. Therefore, while the constitutional changes that went into effect in early 2006 are a step in the right direction, they will likely be insufficient by themselves to produce stable democracy in Ukraine. This is an important warning for those tempted to think that the Orange Revolution and the accompanying constitutional revisions are a complete solution to Ukraine's political problems.
The chapter begins with a summary of the process by which the Ukrainian constitution was adopted, and a consideration of the alternatives that were presented. Kuchma was able to gain formal power in the constitution because he already had considerable informal de facto powers of the presidency. The chapter then examines in more detail the case made by Juan Linz and others that presidential power is dangerous for new democracies. I will show that nearly every problem pointed to by critics of presidentialism manifested itself in Ukraine. Finally, the chapter considers potential arrangements that might more evenly balance power in Ukraine.
Overview: The Tortured Birth of the Ukrainian Constitution
Kataryna Wolczuk and Bohdan Harasymiw have provided thoroughly researched analyses of the adoption of the Ukrainian Constitution, from the first "concepts" for a constitution that were developed even before Ukraine's independence to the final document agreed upon amid last-minute chaos in 1996.5 There is little to add empirically to their thorough analyses. Here we raise points that are relevant to the specific questions raised in this chapter, namely, the choice of a presidential system and the division of powers between the president and the parliament.
As Wolczuk stresses, there was much going on in Ukrainian constitution- building besides an attempt to build the perfect foundation for liberal democracy in Ukraine.6 A primary goal for many was to establish the symbolic basis of a new state. In this respect, the constitution was seen as a genuinely "constituting" document, meaning that the document itself and the process of drafting it were important founding acts of the Ukrainian state. In that sense, the constitution was to be more than simply a "fundamental law" upon which all other law would be built. Many of the key debates on which actors focused their efforts and expended their political capital centered not on the ideal basis for liberal democracy, but on the nature of the state being created. For example, many "national democrats" were willing to grant immense authority to the president in return for establishing Ukrainian as the sole "official" language of Ukraine.
At the same time, every actor involved in the process was interested in preserving or augmenting his/her own political power.7 The nomenklatura-based communists and ex-communists who dominated the Verkhovna Rada sought to maintain the power that the parliament had in Soviet times. They therefore preferred a parliamentary system, which was roughly what Ukraine had at the time of independence. Ukraine's presidents, first Kravchuk and then Kuchma (and later Yushchenko), sought to implement a strong presidential system that served their interests. Kuchma was able to prevail due in part to his ability to win over the nationalists, and in part to his ability as president to wield informal power that far outweighed what the parliament could muster.
While the constitution was a "founding" document in a symbolic sense, it was not at all a founding document in a political sense. It was not written on a "blank slate" by a group of actors who joined together to form a new political system. Unlike the "round table" discussions that took place in Poland, in which representatives of the opposition were granted a role in constitution-drafting that went beyond any elected office that they held, the Ukrainian Constitution was drafted within the constraints of Ukraine's Soviet constitution. In this respect, we can most clearly see that what took place in Ukraine was not a political revolution. It is worth a brief digression to examine why Ukraine took this path (see also Chapter Four).
Unlike in Poland or in the Baltic states, there was division in Ukraine concerning the desirability of breaking away from the Soviet Union. One strategy of the nationalist opposition throughout the late Soviet period was to work within the law. Those following this strategy held peaceful protests, and ran for seats in parliament when allowed, but did not seek to overthrow the existing order, which would likely have been futile. Instead, their strategy was to use means that even the communists could not claim to be illegal, and to try to continuously expand the range of what was considered legal within the communist system.
Rather than being viewed as an overthrow of the Supreme Soviet, Ukrainian independence was declared by the Supreme Soviet, and the fact that it was declared by the Supreme Soviet was a major source of its legitimacy. Similarly, at the international level, in December 1991, Kravchuk established Ukraine's independence from the Soviet Union not by rejecting the validity of the 1922 Union Treaty, but by working within the provisions of that treaty to abrogate it.
To reassert a point already discussed in Chapter Four, Ukraine's declaration of independence, and its subsequent constitutional process, remained nested within the Soviet Ukrainian Constitution of 1978. There was no new discussion of what kind of group should draft the constitution, or what kind of process should be used to adopt it. Instead, the process was governed by the Soviet-era constitution: The constitution could be changed by a two-thirds vote of the parliament. But since there were no new "founding" elections for parliament, the new constitution would be written and approved by the old Soviet parliament. Ultimately, that parliament could manage only a series of amendments. As Andrew Wilson demonstrates, Ukraine's constitutional arrangements prior to 1996 were so confusing that labeling the form of government was itself a challenge.8
For much of the period from 1991 to 1996, therefore, the process of drafting a constitution made little progress. There was a fundamental conflict of interest between the leftists in parliament, who sought to retain the system of Soviets, and nationalists and the executive, who sought a presidential system. The constitutional process was closely intertwined with everyday politics. For example, Ukraine's democratic reformers opposed the creation of a strong parliamentary system, which is what democrats in most of Eastern Europe sought. Why? As long as there was no new election to refound a postcommunist parliament, a parliamentary system would empower the opponents of reform and even of statehood. Instead, they sought to outflank the left by weakening the parliament and giving more power to the president. The power of this logic is demonstrated by the fact that most West European and American supporters of reform in Ukraine (and Russia) also advocated strengthening the powers of the executive at the expense of the legislature. In this way, the arrangement of electoral rules within constitutional provisions was reversed: the debate over the new constitution became tightly constrained by the composition of the elected parliament.
Origins of the 1996 Constitution
The adoption of the 1996 constitution defined the legal environment in which Kuchma was able to exercise such considerable power.9 Therefore, in this chapter we examine in more detail how that process was shaped. Two salient points emerge. First, the various actors had many immediate goals apart from building the perfect constitution in some abstract sense. Second, disagreements were resolved in terms of who could most credibly threaten to defeat the others if the constitutional process failed.
The process was rather chaotic, especially toward the end. The chaos stemmed from the absence of any definitive agreement on what the process would be. In most constitutional processes, the first thing agreed upon is the rules by which the constitution will be drawn up and adopted. In Ukraine, critical aspects of the rules of the game were contested throughout the process. Because the process (including the question of who participates) can have a major bearing on the outcome, it is expected that different actors will contest it. To have the rules of adoption still undecided as the constitution is being drafted and adopted, however, means that there is no agreed-upon basis for proceeding. In the absence of rules, as Hobbes pointed out, "clubs are trumps." In such situations, the actors with the most power resources will tend to emerge victorious, and this case was no exception.
A succession of constitutional commissions had been working on drafting a Ukrainian constitution since October 1990—well before Ukraine's independence. The first was a parliamentary commission, reflecting the dominance .of parliament at that stage. However, this commission barely changed in its composition through 1994, despite the rather dramatic political changes in Ukraine, including the independence of the state and the end of communism.10 Only in October 1994 was a new constitutional commission appointed, headed by President Kuchma and parliamentary speaker Oleksandr Moroz, who could not agree even on basic procedures.11 However, the composition of this second commission—the president appointed half its members—served to achieve an important shift in power in constitutional politics. No longer was the parliament preeminent.12
The 1995 "Law on Power"
With the constitutional process moving very slowly, Kuchma sought a quicker solution. In August 1994, he issued a decree subordinating all government administrations to the president.13 In November 1994, he proposed a law titled "On State Power and Local Self-Government in Ukraine."14 Generally known in its final form as the "Law on Power," this legislation would provide a temporary resolution of the key problems of the division of power until a new constitution could be adopted, while avoiding questions of the form of the state, symbols, and language.15 Because the proposed changes were normal legislation, rather than constitutional amendments, they required only a simple majority vote in parliament to be adopted. This might expedite the process, but it also created the odd situation where normal legislation superseded the constitution.
Kuchma's initial plan called for subordinating the prime minister to the president (including giving the president the right to dismiss the parliament) and removing parliamentary influence over the prime minister.16 This would allow the president to put his own people in the cabinet instead of having to placate the parliament. The prime minister and ministers would be more dependent on the president, and would have only one master rather than two. Kuchma also sought the right to dissolve the parliament under some conditions.17 Overall, the proposed shift toward a fully presidential system was "radical."18
Many members of parliament were willing to allow the change in control over ministerial appointments, recognizing the need to make the government more unified. There was widespread opposition to allowing the president to dissolve the parliament. In April 1995, parliament asserted its power and expressed its discontent by passing a motion of no confidence in Prime Minister Vitaly Masol.19 Kuchma refused to appoint a new government, waiting until a new law was passed that would allow him to do so without parliamentary approval.
When the parliament resisted, Kuchma forced a showdown, threatening to hold a nonbinding referendum on the public's confidence in the parliament and the president, which Kuchma would likely win.20 The two sides finally reached a compromise that gave Kuchma his primary objective, the exclusive right of the president to form the government, but excluded provisions for the president to dissolve parliament or for the parliament to impeach the president.21
However, because the new measures contradicted the existing constitutional provisions, sixty-nine articles would have to be suspended for the new law to go into effect. Thus, Kuchma was unable to fully circumvent the need to win a two-thirds "constitutional" majority in parliament, which the communists could easily prevent. A second showdown ensued.22 Kuchma said he would implement the new law regardless of whether the relevant articles of the constitution were suspended, and he again threatened to hold a referendum, this time going so far as to schedule a date.23 Again, a compromise was reached in which Kuchma got most of what he wanted: parliament voted to suspend the relevant articles for a year, until a new constitution could be adopted.24
From the "Law on Power" to the Constitution
Ultimately, however, the crisis was not averted. In the spring and summer of 1996, the standoff of 1995 was repeated over the new constitution. There continued to be conflict over how the constitution was to be adopted—by parliament, by referendum, or both. How the constitution was to be adopted would significantly influence what kinds of provisions would prevail. With the impending expiration of the "Law on Power" in early June, a crisis approached. Kuchma again seized the initiative and capitalized on his relative popularity over the parliament.
Following the 1995 "Law on Power," the process for adopting a constitution was changed again. Having made little progress in five years of work, leaders saw little chance of arriving at a finished constitution before the "Law on Power" expired. They formed a much smaller "working group" to compose a first draft. A new draft was ready by October 1995. Despite widespread dissatisfaction with the draft, the overall constitutional commission approved it as a starting point by a vote of twenty-two to twenty.25 A new subcommittee dominated by presidential appointees was appointed to modify this draft.26 This time-pressured ad hoc revision of the process was not neutral in terms of the politics of the new constitution. Each improvised change in the process gave the presidential administration a stronger role in drafting the document.
This new group produced another draft in March 1996, which in Kuchma's words would "end Soviet power in Ukraine forever."27 It would allegedly transform the system from the unified power of the Soviet system to a system of checks and balances. In reality, however, this draft would have created a strongly presidential system, with few serious checks on the executive. It gave the president the powers to appoint the holders of most government, judicial, and military offices, to appoint the prime minister and the cabinet, to issue decrees with equal status to parliamentary legislation, to initiate legislation, to name the heads of oblast and raion state administrations, and, most crucially, to dissolve the parliament if it failed to approve the government's program twice in sixty days.28
By ending Soviet power, Kuchma meant that local "self-government" would be appointed by the central administration, thus building the "administrative resources" that would be widely used later.29 The powers over appointments of various officers as well as local and regional administrations would give the president massive patronage power reaching far down into the government and into local government. On a practical level, this would make it very difficult for challenges to arise. Powers to issue legislation by decree meant that there would be no need or incentive for the president to compromise with the parliament. There was no mechanism to resolve contradictions between presidential decrees and parliamentary legislation. However, it was clear what would happen when the president and parliament fundamentally disagreed: parliament would be dissolved. In such conditions, the president would have no reason to compromise, and the parliament would have no grounds on which to stand when it disagreed with the president.30
This draft of the constitution also included provisions on symbolic issues —national symbol, flag, and anthem—that were in line with the desires of the "national democrats." For our purposes, these issues are not crucial, but Kuchma's adoption of the nationalist position at this time indicates his strategy for building a coalition of support for his constitution. He would unite with the right against the left. More important, however, he would not compromise on the extent of power he was going to get in order to gain the approval of the right. Instead, he yielded on symbolic issues that were considered essential to nationalists but were irrelevant to the building of real political power in the country.
The parliament, with the leftist contingent at the forefront, rejected this draft. The Communist Party of Ukraine advanced several alternative drafts, which gave parliament much more power over cabinet appointments, and looked more like the much-amended Soviet constitution that had been found unworkable. The Communists even proposed a referendum of their own, in order to force Kuchma and the right to pay more attention to their position.31 Even many on the center and right of the political spectrum had serious reservations about the extensive presidential powers Kuchma proposed. The provision for a bicameral legislature evoked the most unanimous opposition. It became clear that this draft would never be approved by the parliament. A Temporary Extraordinary Commission, yet another ad hoc change in the process, then produced a compromise document that slightly tempered the degree of presidential dominance in the constitution and eliminated the provision for a bicameral parliament.32
Adoption of the Constitution
The 1995 "Law on Power" was due to expire in June 1996. Without a new constitution, the system would, in theory, revert to the situation in place prior to the "Law on Power." Kuchma took advantage of this deadline to force a showdown. On June 26, he declared he would put the constitution to the people in a referendum in September if the parliament did not approve one rapidly. In planning the referendum, however, he scrapped the most recent compromise, and reverted to a previous draft with far greater presidential power and a bicameral parliament.33 Thus, he gave the parliament the choice of approving a pro-presidential constitution through constitutional means or having a much more radically pro-presidential constitution imposed on it by presidential fiat. It was a classic case of "heads, I win; tails, you lose." Kuchma's ability to structure the alternatives under consideration, combined with his ability to carry out a referendum despite parliamentary opposition and the absence of a legal basis for it, made bis position impregnable.34
The political reality faced by the parliament was that it could either fight a losing battle on the referendum, and face imminent dissolution, or accede to the president's wishes. Beginning on June 27,1996, Moroz began a twenty-three-hour session of the parliament that lasted into the morning of June 28. While Moroz did not side with Kuchma, he sought to preserve the parliament (and his own position), even in weakened form. So he rammed compromises through the parliament, voting on controversial measures repeatedly (over ten times when necessary) until agreement was reached.35 At last, all of the articles were approved, and the entire document was approved with 315 votes (in excess of two-thirds). A constitution was thus passed barely forty-eight hours after Kuchma's ultimatum.
Power Politics and Institutional Design
The process by which the constitution was adopted was driven not by abstract notions of institutional design, but by calculations of power politics. Power considerations dominated the goals pursued by the various actors, and power determined how disagreements were resolved. This occurred first when Kuchma" circumvented the entire constitutional process by passing the "Law on Power." This move turned on its head the notion that standard legislation is "nested" within, and constrained by, constitutional measures. Instead, he was using regular legislation to trump constitutional provisions.
Second, when he could not get the law that he desired through parliament, he threatened to use unconstitutional means, namely, the referendum. That he ended up not needing to do so is immaterial. What is significant is that he made the threat, and that it compelled the parliament to submit. The threat was obviously considered credible (meaning that he would get away with holding a referendum and would win it, as he later demonstrated in 2000). Third, he was able and willing to ignore what should have been a substantial check on his power: the one-year limit on the "Law on Power." Instead, having succeeded the year before in forcing capitulation with a threat of unconstitutional action, he did the same thing again. Again, those who opposed this measure felt that they would be unable to resist.
Finally, Kuchma threatened that, if he went to a referendum, he would put forward a constitution maximally favorable to him.36 In other words, he structured the alternatives so that the parliament had some incentive to vote "voluntarily" for the new constitution. Indeed, in subsequent years, there has been no questioning the legitimacy of the Ukrainian Constitution. Parties within and outside Ukraine have routinely invoked it, and complained when they feel it has been violated. This level of legitimacy might not have been obtained had Kuchma not been able to force the parliament to vote on it.
The role of the "national democrats," or the right wing in the Ukrainian parliament, in this process was also significant. Kuchma was able to secure their support for strong presidentialism in part because they sought to place power anywhere but in a parliament controlled by the left, and also because he was willing to accede to their demands on the key nationalist issues of language, flag, emblems, and anthem. As Wolczuk points out, once the provision for a bicameral parliament was removed from the draft constitution, the rightist parties actually urged Kuchma to circumvent the parliament and put the document to a referendum.37 The right was still more concerned with winning partisan battles with the left and with pro-Russian forces than with building a balanced constitution. It is not that they were unconcerned about the imbalance in the drafts under consideration, but that given other goals, they were willing to compromise on the distribution of power.
The big losers in this process were the leftist and pro-Russian forces (which overlapped to some extent). The fact that the communists and socialists, the most direct descendents of the Soviet-era Communist Party of Ukraine, were to a large extent shut out of the final process, may be seen as accomplishing in 1996 what should have happened in 1991—the adoption of a new constitutional order without the participation of the old members. In that sense, the less procedurally and legally pristine aspects of the process (i.e., threats to hold illegal referenda) might be seen as both necessary and justified. Certainly, Kuchma and many on the right viewed the situation this way.
But the continued participation of the left was important up until the very end, and led to a very different result than would have obtained had they been excluded from the beginning. Had the communist and socialist forces been excluded all along, the right would have been correspondingly much stronger, and therefore would not have had to make the deal that it did with Kuchma. In other words, Kuchma used the specter of the left to subdue the democrats on the right as much as he used the right to subdue the left. Only with the left present did the right need to give the president such extensive power.
Thus, the constitutional process of 1996 did not represent the delayed founding of a state that should have taken place in 1991. Rather, it represented yet another incremental evolution along a continuum that saw the Soviet Ukrainian apparatus transformed into a new, nearly as powerful, pseudodemocratic apparatus. If the adoption of the new constitution represented the defeat of the old Communist Party, the victors were not the dissidents or the democrats, but rather the apparatchiks. The executive branch established itself as the dominant power in Ukraine, with meaningful competition from neither parliament nor the judiciary.
In contrast to the notion of a "round table," which opens up the constitutional process to a broad range of interests, the Ukrainian process remained closed. To the extent that the 1996 constitution represented a revolution, it was not a liberal democratic revolution, but an executive-dominated one. Few noticed at the time, because most reformers and observers were so relieved that the country finally had a constitution and that it did not empower the communists. However, by demonstrating that he had enough power to overcome the established rules of the game, in 1995 and 1996 Kuchma was already building the machine that became widely recognized in 1999 and after. Here we must disagree with Harasymiw, who characterizes the 1996 constitution as producing "weak president, weak parliament, weak political parties."38 It reflected a strong presidency and produced a strong president, which became increasingly evident in the coming years.
Parliamentarism Versus Presidentialism
In examining the provisions of the 1996 constitution, several aspects are significant in terms of the distribution of power and the incentives that resulted from the document. Various aspects of the constitution are notable in other contexts, but are not examined here. By far the single most important aspect of the-constitutional arrangement in Ukraine, developed in 1991 but reinforced by the 1996 constitution, is the adoption of a presidential form of government. As was discussed in Chapter Two, there is considerable argument that the basic decision between a presidential and a parliamentary system has important effects in the political evolution of new democracies. Our discussion here focuses on the effects of the choice of presidentialism in Ukraine, and on the rather extreme version of presidentialism adopted.
The Problem of Definitions: Is Ukraine a Presidential System?
The existence of the position of prime minister creates some confusion in defining the Ukrainian system from 1996 to 2006 as "presidential." Oleh Protsyk defines Ukraine's system prior to the 2004 constitution amendments as "president-parliamentary," since the parliament has some formal input in naming the cabinet.39 In narrow terms, this may be correct, but under the 1996 constitution, the parliament's powers over the cabinet were very weak, such that the president effectively controlled the cabinet. I therefore categorize it as a presidential system. This classification is consistent with definitions provided by Alfred Stepan and Cindy Skach, who characterize a "semi-presidential" system as one "where there is a directly elected president and a prime minister who must have a majority in the legislature." In the 1996-2004 setup, Ukraine's prime minister was not required to have such a majority, and the parliament's control over the prime minister was weak, and it therefore makes sense to classify that Ukrainian system as fully presidential. Stepan and Skach continue, defining a "pure presidential regime" as one of mutual independence, in which "the legislature has a fixed electoral mandate which is its own source of legitimacy" and the executive also "has a fixed electoral mandate that is its own sources of legitimacy."40 This characterization fits Ukraine from 1996 to 2006. The arrangements as revised in December 2004 will indeed meet Stepan and Skach's definition of a "semi-presidential system." In more recent work, Alfred Stepan has distinguished two types of semi-presidential systems: "super-presidential semi-presidentialism" and "parliamentarized semi-presidentialism."41 Ukraine from 2006 onward fits the latter definition.
In the "pure" presidential system, one individual holds the position of both head of state and head of government. Systems with both a president and a prime minister (a so-called bicephalous executive) are then often labeled "semi-presidential," "presidential-parliamentary," or "parliamentary-presidential," depending on the author in question and the exact distribution of formal powers.42 However, the key question in defining systems is not what positions exist, but what powers are given to the president and to the legislature. In a true semi-presidential system, the prime minister remains reliant on the parliament for his or her position. This gives the parliament considerable influence over the operation of the executive branch. It also means that when the president and prime minister come from competing parties, "cohabitation," to use the French term, must be managed successfully to avoid stalemate. Ukraine's system prior to the 1995 "Law on Power" (as well as its post-2006 arrangements) might be defined as semi-presidential, for the parliament had more influence over the selection of cabinet ministers. Even in that era, however, the prime minister was selected by the president.
In the 1996-2006 format, however, the prime minister was dependent almost entirely on the president for his or her position. The prime minister as well as the other ministers were chosen by the president and could be fired by the president. The parliament had only the power to confirm the prime minister and some of the other ministers, and to vote no confidence in the prime minister. But it had no authority to name the prime minister or the other ministers and no control over the executive branch. Hence, using Linz's definition of a presidential system as one in which the president possesses "full control of the composition of the cabinet,"43 we can safely define Ukraine from 1996 to 2006 as a presidential system. Similarly, using Shugart and Carey's three-part definition of "presidential government"—popular election of the chief executive, fixed terms for the executive and the parliament, and the executive's right to name the government—Ukraine was clearly a presidential system. According to Sartori's definition, the categorization is almost as clear. Sartori defines a presidential system as one in which the head of state is elected by popular vote for a defined term of office, and in which the government is neither appointed nor dismissed by the parliament.44 The right of the Ukrainian parliament to oust the prime minister slightly undercuts labeling Ukraine as presidential under this definition, but it still fits Sartori's presidential system much more closely than his parliamentary system.
In contrast, other polities with the post of "president" (such as Poland, the Czech Republic, and Germany) are still defined as parliamentary systems because in them the head of government (prime minister or chancellor) is chosen by the parliament rather than in a direct election and because this prime minister, rather than the president, controls the cabinet and executive branch. In such systems, the president plays a mostly ceremonial and informal political role, but has little de facto institutional power (even though the president's informal powers and prestige may lead to significant political influence, as Vaclav Havel possessed in the early postcommunist years).
The popular election of the president for a fixed term is important because it means that the president is not dependent on parliamentary confidence to retain office. He or she only needs to maintain the confidence of the people to be reelected, and cannot be dismissed, except through impeachment, which in most constitutions (including Ukraine's) is extremely difficult in practice. Besides making the president completely independent of the parliament, the popular election of the president allows him or her to claim to speak for the people and to claim that the parliament is impeding the will of the people when it opposes him. Using Walter Bagehot's terminology, Linz argues that "a presidential system endows the incumbent with both the 'ceremonial' functions of a head of state and the 'effective' functions of a chief executive, thus creating an aura, a self-image, and a set of popular expectations which are all quite different from those associated with a prime minister, no matter how popular he may be."45
Parliaments, of course, are also directly elected, but they rarely speak with a single clear voice, and do not possess the symbolic voice of the people that the president does. The importance of this factor was demonstrated by Kuchma himself, who frequently defended his prerogatives by pointing to his popular election. For example, in rejecting calls to resign during the scandal over the Gongadze murder, Kuchma was able to point to the millions of Ukrainians who had voted for him as a reason that he could not step down. The popular election of the president and the fixed term thus combine to provide considerable insulation from attack. As Linz and others point out, however, they also reduce flexibility, making it very difficult to change course between elections. This, Linz contends, tends to turn crises of government into crises of the system.
The Perils of Presidentialism in Ukraine
As was reviewed in Chapter Two, a variety of authors have argued that presidential government is dangerous, especially for new democracies. In presidentialism, both the president and the parliament derive their democratic legitimacy directly from the people. Therefore, they are rather independent of one another, and thus prone to conflict over prerogatives, especially when the president is not from the party that controls parliament.46 Indeed, Linz points out, when both the president and legislature claim direct democratic mandates, there is no democratic principle by which to resolve conflicts between them. Whatever formal mechanisms for conflict resolution exist in the constitution are likely to be "too complicated and too aridly legalistic to be of much force in the eyes of the electorate."47
Because executives are elected for fixed terms, the conflict cannot be resolved until the next election. One of two outcomes is likely, neither of which is conducive to strengthening a new democracy. If the parliament and president have roughly equal powers, stalemate can persist, and the legitimacy of the system can be cast into doubt. If the president has substantially greater power than parliament, then the president may use extraordinary measures to reduce the influence of parliament and to rule undemocratically. Ukraine has suffered both of these problems, the first in the early years under president Kravchuk, who was constrained by the parliament and shared his power with the prime minister; and the second under Kuchma, who used his considerable powers and augmented them.
Many of the other pathologies of presidentialism against which Linz warns also arise in Ukraine. First among these is the personalization of power. In vesting such extensive and visible authority in a single individual, presidentialism increases the notion of personal rule. In the early days of post-Soviet Ukraine, this was seen as an advantage: the very existence of a president of Ukraine symbolized the country's independence from Russia and the Soviet Union. Leonid Kravchuk was the embodiment of Ukrainian sovereignty at a time when many other attributes of sovereignty were still being developed. Although great power is often vested in a president, fears of excessive presidential power lead to the creation of various checks on the exercise of that power. Presidents are therefore prone to feel that, despite their considerable powers, they are constrained from doing what needs to be done. We saw this clearly in Ukraine under Kuchma: despite his extensive powers, he continually complained that he was prevented from governing for the good of the country, and therefore needed more power. This was the essence of the debate over the "Law on Power" in 1995 and the constitution in 1996, but even having won those battles, Kuchma soon (in 2000) found himself sponsoring a legally dubious referendum to increase his powers still further.48
The combination of direct election of the president and extensive but limited power is likely to give the president relatively low tolerance of the opposition. The danger is that, having won a plurality of votes or perhaps even a majority, the president will act as though he has been elected by all of the people, and therefore will disregard opposition from parliament. "The plebiscitarian component implicit in the president's authority is likely to make the obstacles and opposition he encounters seem particularly annoying."49 While this popular mandate may be an important source of political strength for the president, it can also lead to a perception that opposition to his policies is somehow illegitimate and must be overcome.
Kuchma demonstrated repeatedly the view that opposition to him in parliament was illegitimate, based solely on private, oligarchic interests, in contrast to his concern with the public interest. "In such a context," Linz states, "a president frustrated by legislative recalcitrance will be tempted to mobilize the people against the putative oligarchs and special interests, to claim for himself alone true democratic legitimacy as the tribune of the people and to urge on his.supporters in mass demonstrations against the opposition."50 This is almost exactly what happened in Ukraine, with the addition that Kuchma used the referendum (in 2000) and the threat of the referendum (in 1995 and 1996), rather than demonstrations, as a means of controlling parliament.
Linz also points out that politics under presidentialism is a "winner take all" proposition. A person (or party) either controls the presidency or does not. This gives rise to zero-sum politics, whereby what is good for one actor is bad for another. Such politics is not unheard of in parliamentary systems, where pne party can win a majority by itself and thus "take all," but more often, Linz contends, parliamentary systems are based on coalition governments, which lead to partial rather than total victories and defeats. A party can increase its influence by gaining seats, without having to gain a majority. Moreover, the possibility that even a leading party will have to gain coalition partners to rule should induce some moderation into electoral politics. "The zero-sum game in presidential regimes raises the stakes of presidential elections and inevitably exacerbates their attendant tensions and polarization."51 Though Linz does not say so directly, the "winner take all" nature of presidential elections also drastically increases the incentives to manipulate the election. When a presidential election may turn on a small percentage of the votes, the ability of manipulation to change results is clear, and the gains to be made by doing so are incredibly high.
This phenomenon was vividly displayed in Ukraine in 2004. Because the powers of the presidency were so extensive, both the Kuchma/Yanukovych group and the opposition viewed the election as one they simply could not afford to lose. Both sides anticipated that the losing side would be shut out of politics, possibly forever, and that the losing leaders would likely be either exiled or imprisoned. This seemed to justify the extensive fraud used by the authorities to secure Yanukovych's election, as well as the extraordinary measures undertaken by the opposition to thwart it.
The 1999 presidential election had already demonstrated the same point in a less dramatic way. The election campaign included considerable struggle over control of the media, credible accusations of vote-rigging, and an assassination attempt (as well as the likelihood that the assassination attempt was a plot to discredit one of the other candidates). Similarly, almost immediately following the parliamentary elections in spring 2002, the unofficial campaign for the 2004 presidential election began. Because this campaign, even two years away, dominated politics in 2002, it made governing that much more difficult.
Presidential Rule and Parliamentary Performance
While Linz focuses on the ways in which presidentialism is likely to lead to instability, confrontation, and overweening presidential power, we should also take note of the effects of a very strong presidency on the parliament. The main challenge in a democratically elected parliament is the formation of a governing coalition. This becomes more complicated as the diversity of political interests represented in parliament grows. The ability to form coalitions is influenced by many factors, including the electoral laws and the rules of the parliament itself (see Chapter Seven). However, the form of political system can also have a strong effect, as numerous authors have pointed out. This is simply because the distribution of powers has an important effect on the incentives for coalition-building.
When no parliamentary party has a majority of seats, a coalition must be built with other parties. This can entail substantial costs and dangers for the parties involved. If the coalition includes parties with substantially different platforms and constituencies, the parties may alienate both their activists and their voting base in the next elections. This is especially true if the coalition agreement includes specific provisions for legislation opposed by important components of the electorate. On the other hand, if they join forces to govern with those close to them politically, it is also likely that they are collaborating with those with whom they compete most intensely for votes.
What benefit is to be gained in exchange for these risks? In a parliamentary system it is clear: the ability to govern the country, to name the prime minister and the rest of the cabinet, and to implement one's legislative agenda. Presumably, these are the goals the parties exist for in the first place. An additional benefit of participating in the governing coalition is control over the executive branch. This can have important effects on the implementation of policies, and also can provide opportunities to strengthen the party through control over governmental appointments. Moreover, most parliamentary systems have another powerful incentive to form a coalition: the threat of new elections. The rules vary across countries, but in cases where a coalition collapses, the result is either a very vulnerable minority coalition or new elections. In some cases, parties may welcome new elections as a way to strengthen their representation. But unless a party knows for sure that its lot will improve, there are powerful incentives for legislators who want to remain in office as long as possible to avoid new elections.
However, in a presidential system, especially in a system with a very powerful president, none of the positive incentives just listed operate. Regardless of the compromises parties make to form a majority coalition, parties in a presidential system will get relatively little out of it, compared with those in a parliamentary system. In a presidential system, the president retains the power to name the cabinet and oversees the executive branch. The president in such a system also maintains considerable influence over the legislative agenda, with powers that, in different systems, range from the right to veto legislation to the right to issue decrees. In Ukraine, which has a presidency that is considered very powerful, not much has been left for the parliament.
In Ukraine's 1996-2006 arrangements, the only substantial benefit at stake in forming a parliamentary majority was the ability to name the parliamentary speaker, and to have a leading voice in allocating the chairs of the various committees. If the committees played as powerful a role in drafting (and blocking) legislation as they do in the United States, this might provide a considerable incentive. But since bills are introduced not in committee, but in plenary session, the committees have little legislative power. Also, committee chairs in Ukraine are, by law, allocated proportionately according to the seats controlled by the various parties. Thus even opposition parties receive a share of the committee chair positions. And as long as the president could effectively overrule the parliament on many key issues, there was relatively little at stake in the formation of a governing majority. This helps to explain why, for almost its entire existence as an independent state, Ukraine has had a parliament with no set majority. It is not simply that the members of parliament and their parties are divided: this is true in a great many countries that nonetheless manage to form a majority. Rather, a substantial part of the problem is the lack of incentives to make the compromises necessary to form such a majority.
The difference was immediately obvious under the new rules that took effect in 2006. In 2002, once a deal to elect a parliamentary speaker was reached, coalition talks collapsed, because so little was at stake. In 2006, Our Ukraine and the Party of Regions made significant concessions, both in the composition of the cabinet and in the content of a coalition agreement, in order to get a deal done.52 Neither got as many cabinet seats as they would have like, and both had to agree to compromises on crucial issues such as language policy and possible NATO membership. Most important, Yanukovych and Yushchenko had to overcome their personal hostility. But for Yushchenko in particular, the alternative was worse: if he dissolved parliament and called new elections, his party would likely have ended up with a diminished chance for participating in a governing coalition.
This argument illuminates the problems that face the Ukrainian state since the Orange Revolution. Many in Ukraine (and in Russia and other post-Soviet states) have seen the accumulation of more and more power by the president as a necessary response to the unfortunate inability of the parliament to work effectively. In such circumstances, with enormous problems facing the country, it has made sense to reallocate power to the executive if it cannot be wielded effectively by the parliament.
Indeed, such a solution has been advocated by many in the West, especially when it meant weakening a parliament that would be controlled by leftists. The allure of the presidential model is shown in Viktor Yushchenko's consistent support of maintaining the post-1996 presidential model rather than moving to a parliamentary form of government: "The presidential model is more effective for a country in transition. It concerns, first and foremost, the country's economy. . . . The question is whether the reform designers have convincing arguments in favor of applying a parliamentary model specifically to the Ukrainian situation. Who can estimate all the consequences, impacts and risks of this constitutional revolution?"53
However, the causality between weak parliaments and strong presidencies may be the reverse of what is typically assumed. It may be that rather than a weak parliament justifying (and therefore causing) an expansion of presidential powers, extensive presidential powers reduce the incentives to form a stable majority coalition in parliament.
Shugart and Carey focus particularly on this problem:
In the first place, presidents in multiparty systems who do not have majority party support in congress have far less incentive to seek and maintain lasting coalitions than do parliamentary executives. The success of any given piece of legislation may depend on putting together a majority coalition, but the survival of the executive does not. For this reason, coalition building in many presidential regimes tends to be piecemeal, and the incentives offered to congresspersons particularistic.54
This captures very well the dynamic we have witnessed in Ukraine, and reinforces the argument that Ukraine's problems are not due to some intractable and uniquely Ukrainian factors, but rather to a relatively well-understood effect of institutional design.
Moreover, passing legislation is further impeded in a presidential system by the incentives of the nonresidential parties in parliament: "For representatives of parties other than the president's, the logic of opposition is clear...: There is notiiing to gain from cooperation with the executive."55 As a result, the executive has to resort to particularistic incentives to build the temporary majorities needed to pass specific legislation.
There is also a much more direct way in which presidential power causes a weak and divided parliament in Ukraine. While Kuchma sought to construct a pro-presidential majority in parliament, such as Putin obtained in Russia, he also devoted considerable effort to preventing the emergence of any other majority. There are widespread and credible reports of Kuchma using the resQurces of the executive branch to convince members of opposition parliamentary factions to defect. This was most notable in the period after the 2002 parliamentary elections, when there was still a serious possibility that a majority coalition would be built around Yushchenko's Our Ukraine bloc. A number of deputies associated with Our Ukraine subsequently defected from the bloc, either to join pro-presidential blocs or to become independent. This, of course, impeded construction of a majority, which in this case was Kuchma's goal. Some of the candidates who ran on the Our Ukraine party list in 2002 apparently did so with prearranged deals with the executive to defect after the elections. In sum, the weakness of Ukraine's parliament during Kuchma's reign resulted in part from a sophisticated and carefully implemented strategy by the executive branch. This phenomenon is explored further in Chapter Nine.
Would Ukraine Be Better Off with a Parliamentary System?
Given these arguments against a presidential system, can we conclude that Ukraine would be better off with a parliamentary system? We should answer cautiously. A point made repeatedly throughout this book is that Ukraine's governmental problems are the result of a confluence of factors rather than a single one. We cannot therefore say that Ukraine's governance system would improve markedly if a parliamentary system were developed while nothing else changed. On the other hand, the establishment of a parliamentary system would be an integral part of a package of changes that would help build liberal democracy in Ukraine. As the next chapters will show, however, both the electoral laws and the internal rules of the parliament would have to change, along with the form of government, in order for the Ukrainian parliament to function effectively. So we cannot simply state that Ukraine's government would improve substantially with a parliamentary system.
On the other hand, there is considerable comparative evidence to indicate that Ukraine will have a very difficult time building democracy with a presidential system. As was discussed in Chapter Five, building multiparty presidentialism that functions well is extremely difficult. While there may be some debate, it appears that the most successful case to date has been Chile prior to 1973, a democracy that, although it endured for three decades, ended disastrously. More recently, Brazil seems to have established somewhat successful multiparty presidentialism, but the case is too recent to draw any real conclusions. While there may be debate about classifying particular cases, there can be little debate that there are very few successful multiparty presidential systems. All the stable presidential systems, most notably the United States, have two-party systems.
It is surprising that in all the discussion of institutional design in the former Soviet Union, the seeming incompatibility of presidential constitutions and multiparty politics with consolidation of democracy has received little attention, even as all of the post-Soviet states except the Baltics have developed strong presidencies and fragmented party systems. While the blind application of social science theories to the former Soviet system has led to some substantial misunderstanding, it is odd that this seeming contradiction has not received more discussion.
If we accept the argument discussed in the previous chapter that Ukraine's society has a sufficient number of cleavages that a two-party system is highly unlikely to develop, even under the most tightly constraining electoral laws, then it is difficult not to conclude that a presidential system is likely to fail. For Ukraine to successfully develop multiparty presidential democracy would require it to perform a political feat that few if any other countries have accomplished recently. This is not necessarily impossible, but given Ukraine's political track record since independence, it might not be wise to count on such superior performance.
As Shugart and Carey have found, presidential systems tend to have weaker party systems than parliamentary systems.56 This appears to be another strike against presidentialism for Ukraine, where parties are quite weak. On the other hand, Sartori asserts that parliamentarism will not, by itself, strengthen party systems. Inchoate party systems, he argues, will remain that way unless something more powerful, such as the rise of mass-based political parties, changes them.57 This point is crucial for Ukraine: with a weak and fragmented party system, neither presidentialism nor parliamentarism is likely to work well. Neither of these forms of government can be expected to automatically cure the problem of weak parties. Some other factor will be necessary.
The 2006 Amendments: An Initial Assessment
The deal that led to the rerunning of the second round of the 2004 presidential election included substantial changes to the constitution, which took effect in early 2006. The balance of power between the president, the prime minister, and parliament has been substantially modified. The new arrangements strike a compromise between those who sought to maintain a very strong presidency, and those who advocated a shift to a fully parliamentary system.58
The 2006 amendments shift power away from the president, and toward the prime minister and parliament. According to the new provisions, the prime minister will have the power to name most (but not all) of the ministers. Several key posts will continue to be appointed by the president: these include the ministers of defense and foreign affairs, the heads of the Security Service of Ukraine, the National Security and Defense Council, the National Bank, and the procurator general. Parliament will also be able to dismiss ministers individually, increasing the parliament's ability to influence policy in individual ministries. Thus, the ministers will serve at the pleasure of both the president and the parliament. The term of office of the cabinet of ministers has been changed to coincide with parliamentary, rather than presidential, elections. When a new parliament is elected, a new cabinet will be named based on the majority in the new parliament.
The cabinet, therefore, is being more closely aligned with the parliament. Ukraine is less likely to see a situation in which the cabinet is opposed by the majority in parliament, a frequent situation in presidential systems. It is correspondingly more likely to experience a situation in which the cabinet (or at least the portion named by the prime minister) is at odds with the president. This clearly was the case in the first cabinet to be named after the new rules went into effect. In that cabinet, the prime minister (Viktor Yanukovych) and several ministers were from the Party of Regions, and as such were rivals of President Yushchenko and his Our Ukraine party.
The primary virtue of these changes is that they will undermine the constitutional basis for hyperpresidential rule in Ukraine. Allowing the prime minister to appoint most of the ministers will strengthen the prime minister relative to the president. Allowing the parliament to dismiss individual ministers— without throwing out the entire cabinet and forcing a crisis—will strengthen the parliament's control over the executive branch. This will make it harder for the president to use the government to harass his or her political adversaries.
A second potential virtue is the closer alignment of the cabinet and the parliament—in other words, the move toward a parliamentary system. If the modifications work as envisioned, conflict between the branches should be reduced. A third benefit is the increased incentive for parliament to form a working majority. Giving more power to the parliament increases the incentive for different parties to strike a deal. With the prime minister naming the heads of most ministries, the possibility now exists for coalition deals to be brokered by distributing key ministerial positions to parties supporting the coalition. This is a normal part of coalition-building in most parliamentary democracies, and was evident in Ukraine in 2006. In that agreement, the entire slate of ministers was agreed upon, rather than the president and prime minister each appointing the heads of those ministries allocated to them by the constitution. Control over ministerial posts should also help to hold a coalition together.
A less optimistic view of these changes is also possible. At least on paper, the changes adopted in 2004 will create a system in Ukraine that is somewhat similar to the one prevailing from 1991 to 1995, when the parliament and president were engaged in a constant struggle for control of the government.
In that era, the prime minister was nominally in control of the cabinet of ministers, but the parliament and president shared control over the prime minister and the government. The parliament and president fought to control the prime minister, while the latter struggled for independence from both. The result, through much of the period from 1991 to 1995, was immobility. The response was the 1996 constitution, which gave immense power to the presidency.
The problem with the 2006 amendments is that rather than establishing a system of checks and balances and a separation of powers, they create overlapping powers. It appears that the new system will be prone to competition in the selection of ministers. Moreover, with the powers over actual policy unclear, we can envision a constant struggle between parliament and the president to control the actual behavior of the government.
How well (or badly) the system functions will be determined by who controls the various institutions, and how inclined they are to collaborate. If the parliament and presidency are controlled by the same forces and they stay united, we might see the president, parliament, and the cabinet working closely together. If the presidency and parliament are held by opposing forces, the danger of immobility will only increase. We can easily imagine a situation whereby the parliament, controlling most of the ministers, pursues one political line, while the president, controlling a few of the most powerful ministers, pursues a different line. Moreover, since elements of the executive branch are often deployed as political weapons, we can imagine that the bureaucracies controlled by the different branches would engage on opposite sides of such battles. There were signs of this already in 2005, when ministers appointed by Tymoshenko and those appointed by Yushchenko were involved in an undeclared war, prompting Yushchenko to fire Tymoshenko and the rest of the cabinet. With the new amendments in effect, the president can no longer resolve conflicts this way. But such conflicts between president and prime minister are quite likely to persist when the two offices are held by rivals.
Conclusion
The primary problem in Ukraine's constitutional affairs since 1996 has been the excessive formal power granted to the president. Kuchma was able to use this formal power in combination with his extensive informal powers to establish an essentially authoritarian form of rule in Ukraine. At the same time, parliament has been relatively weak (both on paper and in reality). The limited powers given to parliament undermined its incentives to work effectively, providing even further justification for strong presidential rule.
The constitutional amendments that took effect in 2006 will certainly limit the power of the president. But it remains uncertain whether they will help lead to effective government or whether they will encourage stalemate. It is difficult to predict how practices will emerge from the formal written rules. While the new constitutional provisions (and the accompanying changes to other laws) will likely reduce the president's power, it is unclear that they will build the basis for an effective parliament. In the long term, this goal is just as important for Ukraine's future.
Notes 1. George Tsebelis, Nested Games: Rational Choice in Comparative Politics (Berkeley: University of California Press, 1990).
2. "At least in theory" is an important qualification in the Ukrainian case, where "normal" legislation has sometimes trumped the constitution. The most notable example was the Constitutional Court's ruling on Kuchma's right to hold a referendum in 2000.
3. The question of whether Ukraine should be defined as a "presidential," "semi-presidential," "president-parliamentary," or "parliamentary presidential" system is discussed in depth below.
4. Gerald M. Easter, "Preference for Presidentialism: Postcommunist Regime Change in Russia and the NIS," World Politics 49 (January 1997): 184-211.
5. Kataryna Wolczuk, The Moulding of Ukraine: The Constitutional Politics of State Formation (Budapest: Central European University Press, 2001); Bohdan Harasymiw, Post-Communist Ukraine (Edmonton: Canadian Institute of Ukrainian Studies, 2002), ch. 2. See also Oliver Vorndran, "The Constitutional Process in Ukraine: Context and Structure," University of Birmingham Center for Russian and East European Studies, Occasional Paper 97/3 (December 1997).
6. Wolczuk, The Moulding of Ukraine, ch. 1.
7. This is stressed in Harasymiw, Post-Communist Ukraine, and Vomdran, "The Constitutional Process in Ukraine."
8. Andrew Wilson, "Ukraine: Two Presidents and Their Powers," in Postcommunist Presidents, ed. Ray Taras (Cambridge: Cambridge University Press, 1997), 67-105.
9. In addition to Wolczuk, The Moulding of Ukraine, and Harasymiw, Post-Communist Ukraine, the origins of the 1996 constitution are detailed in Vomdran, "The Constitutional Process in Ukraine."
10. Wolczuk, The Moulding of Ukraine, 119. The process from 1991 to 1994 is also described in Vomdran, "The Constitutional Process in Ukraine," 5-7 and Harasymiw, Post-Communist Ukraine, ch. 2.
11. Wolczuk, The Moulding of Ukraine, 192.
12. Ibid., 206.
13. Vomdran, "The Constitutional Process in Ukraine," 8.
14. Harasymiw, Post-Communist Ukraine, 65.
15. Vomdran, "The Constitutional Process in Ukraine," 2; Harasymiw, Post-Communist Ukraine, 65-66.
16. Vomdran, "The Constitutional Process in Ukraine," 9.
17. OMRIDaily Digest, part II, February 17,1995.
18. Wolczuk, The Moulding of Ukraine, 192.
19. OMRI Daily Digest, part II, April 5, 1995.
20. OMRI Daily Digest, part II, April 18, May 15, 1995.
21. OMRI Daily Digest, part II, May 19, 1995.
22. OMRI Daily Digest, part II, May 26, 31, 1995.
23. OMRI Daily Digest, part II, May 30, June 1,1995.
24. OMRI Daily Digest, part II, June 8, 1995.
25. Wolczuk, The Moulding of Ukraine, 197.
26. Ibid., 197-98.
27. Quoted in ibid., 198.
28. Ibid., 198-99; Vomdran, "The Constitutional Process in Ukraine," 16-17.
29. The local government provisions of the 1996 constitution are discussed in Harasymiw, Post-Communist Ukraine, 74.
30. This draft also called for a bicameral parliament, with an upper house representing the regions. This was viewed by many as a further weakening of the parliament, by making it much less likely that a parliament united in opposition to the president would arise.
31. Vomdran, "The Constitutional Process in Ukraine," 15.
32. Wolczuk, The Moulding of Ukraine, 200. Vomdran, "The Constitutional Process in Ukraine," 16-18, discusses the maneuvering within parliament over the composition of the group that would draft the new constitution.
33. Vomdran, "The Constitutional Process in Ukraine," 20.
34. For a comparative study of the use of referendums to circumvent established rules, see Mark Clarence Walker, The Strategic Use of Referendums: Power, Legitimacy, and Democracy (New York: Palgrave MacMillan, 2003).
35. Wolczuk, The Moulding of Ukraine, 204.
36. Vomdran, "The Constitutional Process in Ukraine," 26.
37. Wolczuk, The Moulding of Ukraine, 201.
38. Harasymiw, Post-Communist Ukraine, 77.
39. Oleh Protsyk, "Troubled Semi-Presidentialism: Stability of the Constitutional System and Cabinet in Ukraine," Europe-Asia Studies 55, no. 7 (2003): 1077-95.
40. Alfred Stepan and Cindy Skach, "Constitutional Frameworks and Democratic Consolidation: Parliamentarism versus Presidentialism," World Politics 46, no. 1 (October 1993): 3-4.
41. Alfred Stepan, "Ukraine: Improbable Democratic 'Nation-State' But Possible Democratic 'State-Nation,'" Post-Soviet Studies 24, no. 4 (December 2005): 279-308.
42. For an attempt to distinguish between "semi-presidential" and "president-parliamentary" systems, see Mathew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge: Cambridge University Press, 1992), 18-27.
43. Juan Linz, "The Perils of Presidentialism," Journal of Democracy 1 (Winter 1990): 53.
44. Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives, and Outcomes, 2d ed. (New York: New York University Press, 1997), 83^1.
45. Linz, "The Perils of Presidentialism," 53.
46. Ibid.
47. Ibid., 53.
48. On the legality of the referendum, see Katya Gorchinskaya, "Ukraine Set to Vote Again," Kyiv Post, January 20, 2000. English versions of the six referendum questions are in the same issue of the Kyiv Post.
49. Linz, "The Perils of Presidentialism," 61.
50. Ibid., 63.
51. Ibid., 56.
52. The coalition parameters were outlined in Yulia Mostova, / Tse Mynet'sia... Dzerkalo Tyzhnia, 5-19 August 2006, at http://www.zn.kiev.ua/nn/index/609/, accessed August 10, 2006.
53. Viktor Yushchenko, "Reform Is Not a Game," Zerkalo nedeli, August 23-29, 2003. He went on in the same statement to refute the argument that he supported the presidential model because he was the front-runner for that position, and wanted to keep it as powerful as possible.
54. Shugart and Carey, Presidents and Assemblies, 33.
55. Ibid., 34.
56. Ibid., 177. Note that there is some disagreement on this point, for example, from Powell, who argues that presidentialism leads to a stronger party system. See G. Bingham Powell, Contemporary Democracies: Participation, Stability, and Violence (Cambridge, MA: Harvard University Press, 1982), 101, cited in Octavio Amorim Neto and Gary Cox, "Electoral Institutions, Cleavage Structures, and the Number of Parties," American Journal of Political Science 41, no. 1 (January 1999): 153.
57. Sartori, Comparative Constitutional Engineering, p. 42.
58. This section is based on Paul D'Anieri, "What Has Changed in Ukrainian Politics? Assessing the Implications of the 'Orange Revolution,'" Problems of Post-Communism (September-October 2005): 82-91.