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UNITED STates institute of peace

© USIP 2014 • All rights reserved.

“A broad constitutional 

process could make a significant 

contribution to restoring peace 

in Ukraine, despite continuing incidents of violence, 

and to normalizing relations 

between the central government and the regions.”

May 22, 2014

The Constitutional Process in Ukraine

Issues in Play

Dominik Tolksdorf

E-mail: dtolksdorf@usip.org

Twitter: @dtolksdorf

peaceBrieF172

Summary

•	 Ukraine’s weak rule of law and widespread corruption and nepotism, combined with growing

concerns over a shift toward authoritarianism under PresidentVictorYanukovych, were among

the key factorsthat triggered the Maidan protests.

•	 Many political conflicts and failures of governance in Ukraine are rooted in the weakness of the

political and judicialsystem, including shiftsin constitutional powers, over-centralization of

administrative structures and a lack of judicial independence.

•	 The interim governmentshould promote an inclusive, participatory and transparent constitutional process. Such a process could help de-escalate the current conflict and build confidence

in the central government and its willingnessto integrate all constituenciesinto Ukraine’s politicalsystem.

Introduction

The Geneva agreement of April 17, 2014, provides a roadmap to de-escalate tension in Ukraine

and a commitment by the partiesto work toward resolution through broad national dialogue

and constitutional reform with outreach to all of Ukraine’sregions and political constituencies.

On May 14, the interim government organized a first roundtable on Ukraine’sfuture, with several

Ukrainian politicians and German diplomat Wolfgang Ischinger meeting in Kyiv. The Organization

for Security and Co-operation in Europe (OSCE) has offered to help promote the national dialogue

in the coming weeks. In addition, the interim government in April announced a constitutional

processintended to lead to amendmentsto the constitution. A special committee in the parliament is preparing amendmentsthat are to be discussed in the next weeks.

This Peace Brief arguesthat a constitutional process could make a significant contribution to

restoring peace in Ukraine, despite continuing incidents of violence, and to normalizing relations

between the central government and the regions. The national dialogue can help to initiate a

broad discussion on Ukraine’sfuture, but it does not replace a comprehensive constitutional

process. This processshould consider key shortcomingsin Ukraine’s politicalsystem that have

contributed to the conflict, including frequentshiftsin constitutional powers between the

president and the parliament, over-centralization in administrative structures and a lack of judicial

independence. A solid constitutional processislikely to take more time than the interim government hasscheduled for it.
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The Constitutional Process in Ukraine: Issues in Play

page 2 • PB 172 • May 22, 2014

The Need for a Compromise on a Lasting Constitution

As a political contract between the governing and the governed, an amended constitution or even

a new version should create a legal framework that will be respected by all parties and endure

political crises, irrespective of who holds power in the future. Since 2004, the politicalsystem has

changed twice between a system in which the president holds extensive powers and a system in

which the president and prime minister must cooperate with each other. These changes have led

to persistent constitutional and political instability.

After the“Orange Revolution,”constitutional amendmentsin 2004 transformed the political

system from“presidentialism”to“semi-presidentialism.” The period between 2005 and 2010 was

characterized by ceaselessrivalry between political parties, especially powerstruggles between

then-President Victor Yushchenko (2005-2010) and then-Prime Minister Yulia Tymoshenko (2005,

2007-2010). After Yanukovych won the presidential election in 2010, he pressured the constitutional court to rule the amendments of 2004 unconstitutional. That move returned significant

powersto the president, allowing him to dismissthe government without parliamentary approval

and nominate candidatesfor the office of the prime minister. He also gained authority over the

judiciary. After the ousting of Yanukovych in February 2014, the parliament passed a law reinstating the constitutional version of December 2004, restricting presidential powers once again.

Those who held power changed the constitutional“rules of the game”based on their political

preferences. While tolerance for opposing political positions will not evolve overnight, a new

constitution could set an institutional framework that helpsthe political culture to mature. A

successful constitutional process would yield a compromise on a constitution that reflects a lasting

societal consensus. The constitution should ensure the fair representation of all constituencies as

well as a balanced separation of powers among the executive, the legislature and the judiciary.

The Need for Decentralization

Another key issue in the constitutional debate will be the administrative structure of the country.

According to its constitution, Ukraine is a unitary state in which public policies are implemented

in a top-down approach. Through decentralization, greater powers on taxation,spending and the

election of governors could be assigned to the regions and districts.

The separatist upheavals against the central government—fueled by provocative Russian

media reports on Ukraine—are indicative of concern that the new government will notsufficiently

respect the interests of ethnic Russian and Russian-speaking citizensin eastern and southern

Ukraine. A majority of the population in these regions wantsto remain in Ukraine, but apparently

prefers greater autonomy from the central government.1

While the interim government opposesfederalization, fearing that it will lead to the separation

ofsome regionsfrom Ukraine, itsupports decentralization. Decentralization isthe redistribution

of functions and decision-making powersto the local level in some policy areas and is based on

the assumption that local government can bettersatisfy certain needs of the population than a

centralized administration. Organizationslike the European Union consider Ukraine to be one of

the most centralized countriesin Europe and advocate decentralization.2

Ukraine’s administrative-territorial division consists of (1) 24 regions(oblast), the Autonomous

Republic of Crimea and Kyiv and Sevastopol as cities with special oblaststatus; (2) 490 districts

(raion); and (3) about 12,000 villages(silrada). The regional and district levels consist of councils

with legislative powers and state administrators(usually referred to as governors) with executive

powers. While members of the councils are elected by popular vote, the governors are appointed
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The Constitutional Process in Ukraine: Issues in Play

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by Ukraine’s president upon proposal by the prime minister. During Yanukovych’s presidency, the

governorsincreasingly represented the interests of the ruling Party of Regions.

The governors decide on key financial issues and report directly to the president. They are

therefore frequently more responsive to the central government than to the local population.

According to the Organization for Economic Co-operation and Development (OECD),service

provision by the central government often fallsshort of local needs.

In addition to the lack of political autonomy, the regional levels depend on the central administration for financial resources. Revenuesfrom local taxes and fees are low, and local budgets

most often rely on state subsidies, whose allocation is often not transparent. According to the

OECD, decentralization should be preceded by territorial reform, which would allow the merger of

smaller municipalities and capacity-building in the regional, district and municipal administrations.

A decentralization reform program was developed between 2007 and 2009 but was never

adopted. Under the rule of the Party of Regions, in powersince 2010, the central government passed

several lawsthat transferred powersfrom local councilsto the central government. This conferred on

the center control over many financial decisionsin the regions and districts and the ability to offer

greatersubsidiesto the parts of Ukraine where the Party of Regions has most of itssupporters.

The current discussions on decentralization could become a significant way to improve relations

between the central government and the regions and a meaningful alternative to addressthe

concerns of ethnic Russians and other minoritiesin Ukraine. The process could result in the shift

of responsibilitiesfrom the central government to regions and districts, including greater powers

with respect to taxing (e.g., property taxes),spending,strategic planning on economic development and infrastructure projects and the selection of governors who are not directly appointed by

Kyiv. Volodymyr Groysman, Ukraine’s minister for regional policy, has already proposed a reform in

this direction.

The Need for an Independent Judiciary

The constitutional process could also be used to consider meansto ensure judicial independence

in the future. In order not to endanger the constitutional process, the governmentshould reconsider the recent lustration plans.

Although Ukraine’s Constitution grantsjudicial independence, there islittle separation of

judicial and political powersin practice. While this was also a problem in the 2004-10 period, the

trend wasreinforced by legislation in 2010, which gave the presidential administration extensive

influence over judicial appointments, provisionsfor disciplining judges and judicialself-governance. The president controlled the appointments of the members of the High Council of Justice

and the High Qualification Commission of Judges who are responsible for the assignment, transfer

and dismissal of judges, including court presidents. Since the court presidents have authority over

the personnel, administrative and financial aspects of the judiciary, they determine the careers

of judges. Such a high degree of presidential control weakened the independence of the courts,

leading to self-censorship among judges and politically-motivated judicial processes.

The interim government’sreaction to these weaknesses wasthe replacement of the most

prominent officeholdersin Ukraine’sjudiciary and lustration measures. Examplesinclude the

parliament’s decision to dismiss five constitutional court justices, who had voted to return Ukraine

to a presidentialsystem in 2010, and the replacement of the prosecutor general by a politician

from the right-wing Svoboda party.
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The Constitutional Process in Ukraine: Issues in Play

page 4 • PB 172 • May 22, 2014

In April 2014, Ukraine’s parliament adopted a law mandating that all court chairs and their deputies be elected by their peersin a secret vote. But the law’s provisions on lustration—a process

to purge officials who have abused power or violated human rights—actually compoundsthe

political arbitrarinessthat has plagued Ukraine’sjudiciary in the past.

First, the law dismisses all members of the High Council of Justice and the High Qualification

Commission of Judges and basically makesthem ineligible for reappointment. Second, the law

forms an interim special commission for lustration to investigate all other judges. The commission’s

15 members are equally appointed by the Supreme Court of Ukraine, the parliament and the new

government’s commissioner for anti-corruption policy, a Maidan activist. The lustration commission makes a recommendation to the High Council of Justice, which makesthe final decision on

whether a judge should be dismissed.

It will not be surprising if the outcome is a purge of judges who were appointed by or cooperated with the Yanukovych government. The Ukrainian ombudsman has criticized the proposed

process as violating the constitution, which forbids delegation of court functionssuch asselfdisciplinary proceedingsto other bodies. The Council of Europe and Human Rights Watch also

warn that the procedures may set the stage for arbitrary and unlawful purging.

The lustration law casts doubt on the new government’s will to end political interference in

Ukraine’sjudicialsystem. The governmentshould ensure that lustration is pursued in compliance

with the fundamental and human rights of the individuals under review, and should also distance

itself from the recruitment of judges and other types of interference in judicialself-governance.

Current lustration proceduresshould be limited to casesin which judges’verdicts were in violation

of human and fundamental rightsin the period from November 2013 to February 2014. If lustration proceeds during the constitutional process, it islikely to become a driver of further conflict.

Strengthening the Constitutional Process

In the current crisis, many citizens, especially in eastern Ukraine, doubt the interim government’s

ability and will to start a broad national dialogue and a constitutional processthat integrate the

interests of all constituencies. Thissentiment is made more acute asthe future president, who

will be elected in the scheduled May 25 election or in a run-off election, will in all likelihood be a

Western-oriented politician—either Petro Poroshenko or Yulia Tymoshenko. A hasty constitutional

processrisks deepening the polarization in Ukraine and the perception among citizensin the

eastern regionsthat their interests are marginalized in Kyiv. These tensions could be mitigated

through an inclusive and transparent constitutional process with the following attributes:

•	 Under Ukraine’s 2004 constitution, constitutional amendments need to be approved by the

parliament. But instead of leaving the process mainly in the hands of the parliament and

the government, and using a top-down approach, the drafting process should be broadened to include the participation of all political constituencies and regions. A broad debate

could de-escalate the crisis, build confidence that institutions in Kyiv are responsive to all

segments of Ukrainian society and provide legitimacy for the new constitutional set-up.

•	 While the constitutional process should be supported by the Council of Europe’s European

Commission for Democracy through Law (the “Venice Commission”of experts), it should

have local ownership and proceed without interference from the United States, Russia and

the EU. All three have signed the Geneva agreement and so should support the outcome of

the constitutional process. 
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The Constitutional Process in Ukraine: Issues in Play

page 5 • PB 172 • May 22, 2014

About This Brief

Dominik Tolksdorf is a Transatlantic 

Post-doctoral Fellow for International 

Relations and Security (TAPIR) at the 

U.S. Institute of Peace. His research 

focuses on the European Union 

and politics in Eastern Europe and 

the Balkans. For this Peace Brief, 

he conducted interviews in Kyiv, 

Brussels and Washington. The 

Geneva agreement of April, signed 

by representatives of Ukraine, 

Russia, the European Union and the 

United States, stipulates a constitutional process and the immediate 

establishment of a broad national 

dialogue in Ukraine. This article 

examines the main issues in the 

constitutional process and outlines 

possible procedures.

•	 To foster a participatory national dialogue, the parliament could consider creating an

independent commission that serves as a secretariat of the constitutional process. Staffed

with national and international constitutional experts and representatives from the national

parliament, local councils and civil society from all parts of Ukraine, the commission could

be divided in thematic working groups (e.g., on decentralization or constitutional means to

ensure judicial independence). The commission could organize public hearings and public

discussions across Ukraine. The OSCE could help organize the events, provide logistical support to the Venice Commission and, if needed, help mediate between interest groups and

stakeholders within the commission.

•	 Based on the public’s input, the commission’s constitutional experts would write a draft of

a new constitution, which would then be submitted to the parliament as well as the Venice

Commission for review by October. The public should have access to all comments, along

with an analysis and explanation of how they have been reflected in the draft constitution. In

close coordination with the Venice Commission, the constitutional committee in the parliament would formulate the final version of the constitution.

•	 Final approval of the new constitution could be accomplished through a combination of a

two-thirds majority decision of the parliament and simple majority approval in a nationwide

referendum. Elections to the national parliament and the local governments could be held

shortly afterwards.

Notes

1.	 See Pew Research, 2014.“Despite Concerns about Governance, Ukrainians Want to Remain One

Country”at: www.pewglobal.org/2014/05/08/despite-concerns-about-governance-ukrainianswant-to-remain-one-country/.

2.	 European Commission.“Implementation of the European Neighbourhood Policy in Ukraine Progressin 2013 and recommendationsfor action,”Doc. SWD(2014) 96 final, March 27, 2014, p. 10.