Assessing Ukraine Proposals for More Effective Governance

Assessing Ukraine

Proposals for more effective governance

Ukraine has had a long history of political instability. While it dates further back than the dissolution of the USSR, it’s imperative to focus on executive power changes since 1991 and how these ideological shifts have also altered and emboldened certain nationalist, pro-western or pro-Russian separatist parties which are all extremely active today. Ukraine is comprised of 24 oblasts, 2 municipalities (Sevastopol, and Kyiv) and the Autonomous Republic of Crimea who’s territory has been disputed over since the annexation of 2014 by Russia- the act of which has largely been deemed by international bodies as illegitimate. It’s important to note though that the land wasn’t just annexed- the people of the Autonomous Republic of Crimea had a landslide referendum in which they agreed to secede from Ukraine’s realm of jurisdiction and join Russia.

This referendum was largely successful due to the fact that the region is majority ethnic Russian

(and does not culturally or ethnically feel bound to Ukraine), while Ukrainian and Crimean Tatar minorities combined comprise around 36.4% (UNPO) of the population. This divergence of ethnicity and culture is present elsewhere in Ukraine, such as in the Luhansk and Donetsk oblasts. With due respect, we acknowledge that a Unitary System might be an inefficient means of governing a state which holds such prevalent issues of conflicting identities. A Cooperative

Federalist approach would better represent the range of geographical, political, and social interests among the states of Ukraine because decentralizing power and vesting it among the states will give each region a chance to govern in the respective interests of its people. Further, a

Cooperative approach would allow for a better sense of autonomy for the regions which have heavy involvement in the separatist movement because it would give them sovereignty over a number of policy realms, while still allowing for oversight from the federal government and

increased cooperation/communication between the two bodies. We feel that individual statehood brought by federalism will alleviate some of the tensions around lack of representation on political, cultural or ethnic identities. With that said, a new constitution will need to be written in order to accommodate this governmental system change, as well as instituting a supremacy clause to ensure that the federal government has the ultimate say in the case of a future conflict arising.

Executive branch

The Prime Minister is appointed by the President with a simple majority from Parliament.

The Cabinet of Ministers is made up of five individuals, and several ministries, each with their respective functions. The cabinet possesses the power of legislative initiative, which allows them to introduce their own bills into Parliament. If the Prime Minister resigns, the entire cabinet must also leave. The President holds stronger veto power than other Presidents in similar government types. The constitutional amendments in 2004 gave more power to the Prime Minister, but left more ambiguity to where the majority of the power lies. Former President, Leonid Kuchma, implemented a system of new constitutional reforms to refine election laws. He did this to try and prevent further corruption in the Ukrainian government. These reforms allotted more power to the Parliament and in turn, brought in more checks and balances with the President. The current election process of the President is held every five years, in a two-round system. Article 8

Section 11 of the constitution allows for the President, through local commanders, to regulate the functioning media outlets, influence their programming, and close them down in case of violation of martial law requirements. Many powers that the President holds were set in place by

Kuchma and are very controversial. The President acts as a foreign diplomat, and ensures that the constitution is followed closely. The Prime Minister appoints the department heads and has the constitutional power to veto or countersign any bills passed by the President.

For the executive branch, we propose to keep the semi-presidential system. Our first correction addresses the National Police of Ukraine. In order to prevent the possibility of a strong hand government, we propose to reduce the power of the national police force, dividing the law enforcement power between the federal and state levels. Currently, the President has recently enacted his power to dissolve the Parliament (Verkhovna Rada) (Hnatyuk). On the topic of this power, the constitution states that the President can, “terminate(s) the authority of the Verkhovna

Rada of Ukraine, if the plenary meetings fail to commence within thirty days of one regular session.” As this is an obvious overreach of power, which could enable the president to remove anyone who does not share his political views, we will remove this ability from the President.

The current impeachment process requires a two-quarter majority in the Parliament to start, and a three-quarter majority to pass. We suggest to change it to require a three-quarters majority in the

House of Representatives to start, and a two-thirds majority in the Senate to pass. A vote of no confidence will require two-thirds of the votes in parliament. Currently, the resignation of the

Prime Minister requires the entire Cabinet of Ministers to resign also. We will not require the resignation of the entire cabinet, only the closest advisors such as the Vice Prime Minister, and the first Vice Prime Minister, as keeping the old system will result in instability by leaving large swaths of positions vacant. The constitution allows the President to regulate and shut down media outlets if they violate the requirements of martial law. We will abolish this section, as censoring the press in any form will limit a transparent government. Also, on the topic of

maintaining a free and unbiased press, we will disband the National Council of Ukraine on

Television and Radio Broadcasting to further distance from possible media censorship. We will adjust the power of the President in regards to the National Bank. Currently, the President appoints half the board members. We will change this to solely the appointment of the chairman of the National Bank. This will be set in place to combat the financial corruption that has played a part in Ukrainian politics throughout the years. In addition to these changes, we will implement a third-party anti-corruption agency to oversee the executive branch through the National

Anticorruption Bureau of Ukraine (NABU).

Legislative branch

The legislative branch will be structured as a bicameral system. The Senate should be stronger than the House of Representatives. A bicameral legislature will balance out the power in parliament. Under the unicameral body of the Verkhovna Rada, all the power is vested in a body that possessed virtually no checks and balances. Furthermore, a bicameral system will work better with the size and population of Ukraine. As the geographically largest country in Europe,

Ukraine has both a massive amount of territory and a huge heterogeneous population. In the referendum from 2000, “the overwhelming majority of participants expressed their support for the transition to a bicameral structure of the Verkhovna Rada of Ukraine” (Serohina). With support from the people, the transition from unicameral to bicameral makes the most sense. This will change from the current Constitution, which allows for 450 members in the Verkhovna Rada. The House will now have 442 members, 17 members per region. By eliminating electoral districts and allowing for 17 members per region, elections can be held through a proportional representation system. The House will have 2 year terms, the short term will help prevent

corruption and prevent representatives from straying away from their constituencies desires.

They will also have the power to appoint appeals court judges though simple majority vote in the

House. The Senate will have 52 members, 2 per region in Ukraine. They will have 4 year terms to keep continuity and because the Senate will have the power to elect one third of the Supreme

Court justices. The Supreme Court Justices will be appointed with a two thirds majority support in the Senate. Additionally, a bicameral system “implies a more complete consideration of the interests of various social, economic, cultural groups or geographical units through the expansion of representation of sub-national authorities” (Serohina). This system works because of the strong social divisions between eastern Ukraine and western Ukraine. Citizens in eastern Ukraine possess a national identity that is distinct from citizens in western Ukraine. Through a bicameral legislation, the Russian-speaking minorities in the east will be better represented. A bicameral legislation will also provide a much-needed decentralization of power, which, along with proportional representation, will “check the power of vested interests and ensure active citizen participation in the political process” (Jarabik). The legislative branch will also have the power to overturn a presidential veto with a two-thirds majority vote in the house. Parliamentary immunity will also be removed in order to prevent corruption among members of parliament.

The type of electoral system that should be put in place to elect members of the House is a proportional representation system. A proportional representation system will be more ideal system for the House than a plurality-majority system because it will ensure that minority parties are included in fair representation, and all identities have the chance to be represented in parliament. Proportional representation will also encourage parties to be inclusive, instead of basing their campaigns on conceptions that can harm certain ethnicities and regions, such as

conceptions that eastern Ukraine is bad, or pro-europeans are bad, and can be unresponsive to changes in public opinion. Proportional representation will work best in Ukraine because “the inclusion of all significant groups in the legislature” is incredibly important in countries “which face deep societal divisions” (Ace Project). Since the west of Ukraine is very distinct from the east of Ukraine, the issue of societal divisions must be addressed. Because proportional representation directly reflects the votes of all citizens, citizens in eastern Ukraine can vote for members of parliament that represent them, and citizens of western Ukraine can do the same.

Proportional representation ensures that minority groups, such as the Russian-speaking citizens, have representation in the legislature, considering that “voting behavior dovetails with a society’s cultural or social divisions” (Ace Project). Since gaining independence, Ukraine has been switching from one form of electoral system to another. In 2012, Ukraine switched from a closed list proportional representation system to a parallel semi-proportional system. Ukraine should return to proportional representation, but this time the electoral system should be an open list. It is important for Ukraine to have an open list proportional representation system than a closed list proportional representation system in order to avoid corruption. In a closed list system, politicians may be able to bribe political parties to place them on the top of a list; however, an open list system means that the people get to decide who receives a spot on the top of the list. Because of this, “politicians would have less incentive to bribe party leaders”

(Minich). Furthermore, an open list ensures that “there will be no more opportunities to hunt for the higher place in the party list, because not the party but the voter will decide, who actually passes. This will exclude previously guaranteed chairs for the top of the list.” The Senate will be elected through a ranked-choice voting system. This will ensure that citizens are able to still elect

their senators directly and elect two members per region. This system “enables the votes of several candidates to accumulate, so that diverse but related interests can be combined to win representation” (Ace Project). Because of the social divisions between the East and West, it is important to still have a diversity of interests represented in both houses of the legislature.

Judicial Branch

The composition of Ukraine’s Judiciary System is three-tiered, with the Supreme Court constituting the highest judiciary power within general jurisdiction in all the land, appellate/appeals courts following suit, and local courts at the bottom of the pyramid scheme.

Ukraine also has a number of high specialized courts such as the High Anti-Corruption Court

(HACC, recently founded in April of 2019) which also fall under general jurisdiction. The

Constitutional Court (CC, whose jurisdiction and range broadened in 2016) is an autonomous higher court which investigates cases which have been found to potentially violate the

Constitution, though, due to “a weak tradition of constitutionalism among both society and dominant political parties and elites” (Kyrychenko) the constitutional court has had not proven to be as successful as originally planned. Though ideally Ukraine’s Judiciary branch is set up to be its own separate entity apart from the rest of the government, that is far from the reality. Ukraine's Judiciary branch is trusted by few. Several surveys were held between 2014-2017 which sought to find the level of trust

Ukrainians held for their judges. The polls found 81% of Ukrainians do not trust the courts and

80.5% think judges depend on politicians; 58% of judges in the high courts have experienced

‘external influence’ in their decision-making, with 22% stating the external influence came from

politicians. Finally, at least 38% of judges agreed with the statement that individual judges accept bribes as an inducement to decide cases in a specific way. (Jennett 11)

The issue of trust is due largely to 1.) the inefficiency of the courts, 2.) the blatant bribery of justices to decide cases, 3.) how politicized and subject to outer influence the justices are, 4.) the amount of corruption and graft taking place in positions of power, 5.) fear of retaliation or retribution, and 6.) lack of systems in place which create for greater transparency of laws, the legal system and court rulings, etc.

The root of the corruption stems from the number of judges in Ukraine, as there are not enough to handle cases. As a result, procedural deadlines are missed, statutes of limitation expire, and cases are lost in the system. To ensure cases are not thrown out or purposefully delayed, money must be spent for Public Relations and putting the case into the spotlight and media attention. As a result, the poor and middle-class court users suffer and are under pressure to engage in corruption crimes to secure court outcomes. “Also, corruption cases are often sabotaged at the pre-trial stage as cases are allocated to pliant judges or judges enable procedural deadlines to expire or make unlawful procedural decisions.” Expanding and increasing the number of judges is the first step to combating corruption. In order to do so, the vetting of judges should be carried out swiftly and effectively. Shortening the vetting system would allow for more judges to hear more cases, thereby decreasing the amount of dismissed cases and allowing for a faster court process.

Once judges have been appointed, judicial protection and independence must be ensured.

That independence is guaranteed by “Article 126 of the Constitution and the laws of Ukraine and

Article 6 of the Law on the Judiciary and Status of Judges (LJSJ) which prohibits ‘interference

with the administration of justice’ and specifically requires state bodies to refrain from

‘statements and actions which may undermine the independence of the judiciary.’” Though in

2016, in an attempt to rid the courts of corruption, an intense vetting system was put into place that ended up with a removal or resignation of half of Ukraine judges. Despite the good intentions, the lustration laws created a vulnerable Judiciary branch through a system that could be “abused to remove judges for reasons other than their stated intent” and could also be abused to intimidate judges and interfere with their judicial decision making. These laws undermine the

Judicial independence and serve as a tool for future corruption and must be eliminated once new judges have filled the empty seats (Jennett 13).

USAID has suggested recommendations for protection of Judicial independence. Now that the courts have been ‘cleansed’, new judges must be swiftly and effectively vetted into office, and complete judicial protection must be administered to the judges. Another risk to judicial independence is held by the prosecutorial powers under article 375 of the Criminal Code.

It states that “prosecutors may initiate a criminal proceeding against judges for the ‘delivery of a knowingly illegal sentence... which is punishable by restraint of liberty..., or imprisonment...’”

This power could be abused by prosecutors to intimidate judges in their decision making. In order to prevent prosecutor abuse of power against judges, consideration should be given to amending or completely removing article 375 of the Criminal code. In addition, a complaint system will be administered where judges have a safe means to report governmental and prosecutor abuse of power, and the HACC will conduct a thorough investigation in response to a judicial complaint. And in response to interlocutors stating that there have been incidents of attacks and threats on courts and judges, security measures should be put in place to ensure the

safety of judges and courthouses. Judicial safety is crucial for governmental independence to ensure judicial decisions are not pressured through intimidation or threats (Jennet 13-14).

With Judicial Independence being restored, the next move is to regain Ukrainian trust in their courts. First, a jury of peers will be established within the Appeals Courts. This will include the people and provide them better representation and agency in the court system. Next, the people will also have some say in the selection of judges. The Supreme Court justices will be appointed by the Senate (4 appointees) and Executive (3 appointees), the House determines who is appointed to the Appeals Courts, and the people will elect their local judges. This increases the people’s voice, and with a voice, Judicial faith should be restored.

Following the restoration of Ukrainian faith with the Judicial Branch and reestablishing

Judicial independence, the Judicial system will remain three tiered with the Local, Appeals, and

Supreme courts and the CC all falling under courts of general jurisdiction. The first three courts relate to criminal law, and the CC “shall be the sole body of constitutional jurisdiction in

Ukraine” (Yanukovych) so it acts as a major check on the actions of not just the judicial branch, but legislative and executive too. The HACC will be maintained and vested with the power to investigate complaints or concerns brought forth anonymously and in regards to the judiciary.

This specialized court will hold hearings if necessary, and move actions forward to the High

Council of Justice if further disciplinary action is needed. The Supreme and HACC are comprised of 7 judges with life terms -or until they meet the dismissal criteria within article 126 of the 1996/2004 versions of the constitution- because we recognize the importance of having justices with a vast amount of experience and these spots require stability. For the Constitutional and HACC we impose an added criteria for being appointed as a justice, one must have served a

minimum of 5 years above the local level and maintained good standing/behavior. Additionally, age limits currently force justices to retire at the age of 65 in Ukraine. This limits a term to technically 35 years, whereas we propose that justices that fall under courts of general or special jurisdiction all may serve to the age of 80. Last we maintain the appointing procedures for the

Constitutional court as being “18 [judges]... provides that the President, the Parliament, and the Congress of Judges of Ukraine each appoint six judges. This appointment process was established to ensure impartiality and judicial independence.” (Savchuk)

Works Cited

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Zhernakov, Mykhailo. Independent Anti-Corruption Courts in Ukraine: The Missing Link in Anti-Corruption Chain. https://dejure.foundation/library/independent-anti-corruption-courts-in-ukraine-the-missing-link.