Olena Boryslavska,
Ivan Franko National University of Lviv, Ukraine
PhD, associate professor
The System of Limited Government: the European Model and Ukraine’s
Experience
The article is devoted to the issues of limited government’s
formation in a sovereign Ukraine. It is noted that the constitutional
reforms of 2004 and 2010 were aimed to changing the form, not the
substance of government. Attention is focused on the importance of
formation of the limited government constitutional system on the
European model in Ukraine. The European model of constitutionalism is
considered as an institutional system. Based on its elements, the
author analyzes the Ukrainian experience and identifies the main
problems to be solved.
Constitutionalism,
European
model,
limited
government,
constitutional state.
Prerequisites for the formation of constitutionalism in Ukraine
As a sovereign state, Ukraine exists for about 23 years. This is the period of
time enough to build a solid foundation for future development. After almost a 70year totalitarian past Ukraine has determined for itself a new goal, which is to
build a democratic law-governed state. This goal was declared in the very first
state-building documents: the 1990 Declaration of State Sovereignty of Ukraine1
and the 1991 Act of Declaration of Independence of Ukraine 2, approved at the
nationwide referendum. Some time later these principles were reflected in the 1996
Constitution of Ukraine, adopted in 5 years after the declaration of independence.
Article 1 of the Constitution declares that Ukraine is a sovereign and independent,
1
Declaration of State Sovereignty of Ukraine
//https://web.archive.org/web/20100111101705/http://gska2.rada.gov.ua:7777/site/postanova_eng/Declaration_of_St
ate_Sovereignty_of_Ukraine_rev1.htm
2
Act of Declaration of Independence of Ukraine// http://gska2.rada.gov.ua/site/postanova/akt_nz.htm
1
democratic, social, law-governed state. In addition, the Constitution sets forth a
number of other important principles: the supremacy of law (Article 8), recognition
of a human being as the highest social value (Article 3), the rule of the people
(Article 5), separation of the powers (Article 6), and recognition and guaranteeing
of local self-government (Article 7). Setting forth these fundamental principles in
Chapter 1 of the Constitution has finally put an end to doubts regarding the
democratic and legal direction of the development of sovereign Ukraine. Ukraine’s
accession to the Council of Europe in 1995 and ratifying a number of important
international legal acts, namely the Convention for the Protection of Human Rights
and Fundamental Freedoms (ratified in 1997), which extended the jurisdiction of
the European Court of Human Rights to Ukraine, has re-affirmed this commitment.
However, notwithstanding the above and a number of other important steps,
as of the end of 2013 Ukraine had not managed to achieve the declared type of
statehood, i.e. a democratic, law-governed and social one. This resulted in the socalled “Maidan”, i.e. the revolutionary events which took place from November
2013 to February 2014 3 . Millions of Ukrainian citizens who took part in the
peaceful protest action 4 demanded to eliminate the arbitrary conduct of the
government and to fundamentally change the state, change its essence. Similar
demands and revolutionary events were peculiar to other states but such events
took place there several centuries before. For this reason, these states managed to
develop a complete doctrine and a respective system of government, which is
called the
constitutionalism. Most of the European scholars consider
constitutionalism to be a doctrine and practice of limited government, contrary to
the arbitrary government actions5.
3
The refusal of the ex-president Victor Yanukovych to sign the EU-Ukraine Association Agreement was only a
trigger of the revolutionary movement while the reasons for it were much more deep-rooted.
4
After violence was applied to peaceful protesters on 30 November 2013, much more people joined the mass
protests which remained peaceful until 18 February 2014 when more than 100 individuals died as a result of the use
of fire arms by the law enforcement bodies.
5
For example: McIlwain Charles Howard. Constitutionalism Ancient and Modern. – Ithaca, New York: Cornell
University Press, 1940. – 162 p., P.21; Sajo A. Limiting Government. An Introduction to Constitutionalism. —
Budapest, 1999. — P. 14; Cesare Pinelli. The Combination of Negative with Positive Constitutionalism in Europe //
European Journal of Law Reform Issue. – 2011. – №1; Wouter G. Werner. Democracy, Constitutionalism and the
2
We should note that after the declaration of independence, adoption of the
first constitutional acts, such notions as constitutionalism and constitutional state,
little known to the Ukrainian constitutional law before, appeared. The
constitutional studies of the Soviet times considered these concepts to be alien and
even hostile. In contrast, in modern times these concepts integrated in the science
of the constitutional law. However substantial difficulties in apprehending the
constitutional concepts typical to the Western Europe were caused by the
gnoseological attitudes of scholars. In other words, we have inherited from the
studies of Soviet times the normativistic and formalistic approaches to
understanding of the law, constitution and constitutionalism. For this reason, we
concentrated on a constitution as the supreme normative legal act, its
characteristics and guarantees of its supremacy, which are related to the
constitutionalism. At the same time, little attention was paid to the formation of the
system of limited government with the help of constitution, which is actually the
substance of constitutionalism.
In addition, the liberal-democratic ideology, which is its foundation, was
unconscious and not completely accepted. New for Ukraine, but accustomed to
Europe ideas were often interpreted in a post-Soviet manner. Some time passed
before researches began to consider the substance of the constitutionalism through
the prism of the idea of limited government. However, the idea was far from being
implemented in practice and the constitutionalism itself was primarily regarded as
a theoretical matter and ideology. The underestimated practical aspect of
constitutionalism, i.e. the system of government limited by the constitution, should
have been taken much more serious.
Tradition of limited government
It is obvious that the phenomenon of constitutionalism is peculiar not to
every society. A society should mature and be ready to it at both the ideological
Question of Authority // Netherlands Journal of Legal Philosophe. – 2010. – №3
http://www.bjutijdschriften.nl/tijdschrift/rechtsfilosofieentheorie/2010/3/RenR_1875-2306_2010_039_003_006
3
and practical levels. The ideological level envisages that the society should
apprehend the ideas of constitutionalism as its own. First of all, this requirement
relates to the ideas of liberty, non-admission of the arbitrariness of government,
and constitutional limitation of the state powers. At the practical level, the society
should be ready to comply with such “rules of the game”, i.e. an active civic
position, respect for the Constitution and the rights and freedoms of other
individuals, fair elections, self-organisation and, finally, the resistance to the
arbitrary conduct of authorities.
Readiness of the society depends, to some extent, on the availability or lack
of the tradition of limited government. This idea is known to have existed in the
Medieval Germany and was derived from the Germanic customary law which set
two main requirements of the limited government: the requirement for a governor
to act within the law and the governor’s lack of ability to arbitrary change the law.
Germanic legal tradition presents an example of the limitation of monarch’s power
by introducing the “right to resistance” according to which the people could
overthrow a king who violated the laws6. Another well-known example of limiting
the absolute power of a monarch is Magna Carta (1215) executed between the
English King and the barons rebelling against him.
Is there a similar tradition in Ukraine ? As long ago as 1710, there appeared
a document entitled Pacts and Constitutions of Rights and Freedoms of the
Zaporizhian Host (the so-called “Constitution of Pylyp Orlyk”). The bilingual
document, the author of which is Pylyp Orlyk, an elected head of a state – the
Zaporizhian Host, was written in Latin and the old Ukrainian language. The very
title of the document (“Pacts and Constitutions”) points at its contractual nature
and the subject of agreement, i.e. rights and freedoms. The Constitution of Pylyp
Orlyk included a number of provisions which aimed at securing the limited
(constitutional) character of the established government. Firstly, it provided for the
separation of powers. The most important matters had to be resolved by the
6
Fritz Kern. Kingship and Law in the Middle Ages / Translated by S.B. Chrimes / Clarc, New Jersey: The
LawbookExechange, LTD: 2005. – 213 p., p.181-196.
4
General Council, a collegiate representative body. Hetman had to preside over the
executive branch of power and to exercise his powers through the General Staff,
elected by the Council among the candidates proposed by Hetman. Secondly,
Hetman’s powers were limited; he was not empowered to independently conduct
foreign policy, to dispose of the state’s property and lands, to appoint senior
officers. Thirdly, Hetman was responsible before the General Council who had
power to defeat him by vote of no-confidence7.
Although the Constitution of Pylyp Orlyk was effective on a very limited
territory of the Right-bank Ukraine and only until 1714, this act was definitely a
progressive one which was oriented not on the personalised government so typical
for the Medieval times but aimed at establishing the institutionalised constitutional
system.
In almost two centuries similar ideas were set out in the 1918 Constitution of
the Ukrainian People’s Republic, which wasn`t implemented. Initially the
Constitution had to be adopted at the constituent assembly but the revolutionary
events impeded the process. For this reason, the Central Council of Ukraine, the
supreme body of the Ukrainian People’s Republic, adopted the Constitution.
However, the Central Council itself ceased to exist soon after the adoption of the
Constitution and did not manage to implement such important provisions relating
to the sovereignty of the people and state sovereignty, rights of the citizens,
separation of powers, parliamentary form of governments etc. At the same time in
the Western part of the Ukrainian territories, where the West Ukrainian People’s
Republic was proclaimed, draft constitution providing for the introduction of the
constitutional system of limited government was elaborated.
None of the above documents were implemented in practice. The Ukrainian
people did not have a chance to evolutionary develop its own system of
government by trial and error, to check the ways in which constitutional principles
7
"Пакти і Конституції" Української козацької держави (до 300-річчя укладення) / Відп. ред. В. А. Смолій;
упорядники М. С. Трофимук, Т. В. Чухліб. НАН України. Інститут історії України; Національна бібліотека
України імені В. І. Вернадського; Державна архівна служба України; Центральний державний історичний
архів, м. Київ. - Львів: Світ, 2011. - 440 с.
5
apply in practice, to assess the efficiency of governance models mentioned in the
above documents. The course of history was so that these principles had not any
chance to be implemented. Short periods of independence intermixed with long
periods of Ukrainian territories being occupied by foreign states. The very fact that
such documents were created does not evidence that the traditions of limited
government existed in Ukraine. At the same time, it proves that the ideology of
constitutionalism is very close to the Ukrainian society.
The European Model of Constitutionalism – Institutional System of Limited
Government
During the modern period of Ukraine’s existence as a sovereign state, its
form of government has changed several times. Ukraine was a presidential republic
(until 1996), a presidential-parliamentary republic (1996 through 2004, 2010
through 2013), and a parliamentary-presidential republic (2004 through 2010,
2014). Two times (in 2004 and 2014) the excessive powers of the head of state,
who used to arbitrary exercise them, were limited as a result of mass public
protests. In both cases such limitation resulted in the introduction of the
parliamentary-presidential form of government. However, we believe that the
actual solution to the problem was not the change of form but the substance of
government.
As it was mentioned above, the protests were directed against the arbitrary
conduct of the state represented by the president. Therefore, these events should
have led not to the re-distribution of powers between the head of state, the
parliament and the government but to the formation of the entirely new type of
government, which would be constitutional in its substance. In other words, here
we mean the practical aspect of constitutionalism, i.e. the system of limited
government. Experience of modern states proves that there are three main models
of constitutionalism, i.e. the American, English and the European one.
6
Two different concepts of limited government underlie them. The former
one originated in the ancient times from the ideas of Plato, Aristotle, Cicero and
others about the necessity of limiting the powers of a monarch and ruling majority,
and was later implemented in the states of Continental Europe. The essence of this
concept is that a limited government should be established for the restriction of
governmental tyranny. The latter concept originated at the end of the 17 th – 18th
century thanks to liberalism, a political theory according to which individual
liberty is the main value. The essence of this concept is that the state governance
should be limited for the protection of individual liberty. This concept was
implemented in England in the middle of the 19th century and further in the USA.
In the USA and England the constitutionalism developed in different ways.
In the USA an institutional mechanism aimed at ensuring the limited nature of the
state power was created to guarantee individual liberty. It includes the following
elements: 1) written constitution which has a supreme and stable nature and limits
the powers of the legislative branch (i.e. laws should not contradict the
constitution); 2) strict separation of powers into the legislative, executive and
judicial branches, independence of such branches of power and the availability of
checks and balances mechanisms; 3) federalism which ensures the division of
powers between the federal and state levels and protects from the excessive
concentration of powers; 4) independent judicial power which resolves disputes, is
an active law giving subject and exercises control over the legislative branch of
power ; and 5) human rights set forth in laws (i.e. the Bill of Rights). Such choice
of elements ensures the inner stability of the system, which guarantees its
constitutionality. Thanks to this, the USA is one of the few modern presidential
republic, which guarantees and preserves the constitutional nature of government.
In England such mechanism was not created. However, the supremacy of
law, which means the limitation of state power by law, exists. In spite of the lack
of a written constitution, England has a constitution, which means the
establishment of the structure of state power, setting forth rights and freedoms of
citizens guaranteed by law. Here it is worth mentioning the words of Brian Z.
7
Tamanaha according to whom the supremacy of law in England functions due to
the widely spread and the unquestioned belief in the supremacy of law,
inviolability of certain fundamental restrictions imposed on the state power by the
law but not due to the availability of certain legal mechanisms.8.
English model of constitutionalism is a unique one since the constitutional
nature
of
government
is
guaranteed
without
the
written
constitution.
Constitutionalism means the supremacy of law and is based on the strong powers
of interpretation and control vested in the courts, which are the means of limiting
the powers of the legislative branch.
The European (continental) model of constitutionalism provides for the
existence of an institutional system similar to the one in the USA. However, the
principal differences between the American and European understanding of
constitutionalism are the different traditions of liberalism and different concepts of
limited government. The European model, based on the ideology of liberal
democracy, was developed on the grounds of political and legal practice of the
states of the Continental Europe regarding the limitation of the government
tyranny in the course of struggle against absolutism. It originates in the ideas of
limited government and democracy, according to which constitutionalism should
be considered in the light of institutional mechanisms used for limiting the state
power in a democratic society.
This is an institutional system of limited government which includes the
following elements: 1) written constitution that is an act of the constituent power
of the people and guarantees the derivative (constituted) nature of the state; 2)
legal (constitutional) rights and freedoms of man and citizen and the system of
their protection which should determine the substance and orientation of the state’s
activities; 3) constitutional jurisdiction (usually in the form of constitutional
justice) aimed at ensuring the supremacy and stable nature of the constitution,
limiting the legislative powers of the parliament, as well as ensuring the stability of
8
Brian Z. Tamanaha. On the Rule of Law: History, Politics, Theory // Cambridge University Press, 2004.- 180 p. –
P.57-58.
8
the whole system; 4) parliamentary system in which the head of state performs
mainly representative functions and the executive branch of power depends on the
legislative branch; 5) decentralized government
(doesn`t allow excessive
concentration of power at the national level); 6) independent judicial branch of
power which guarantees the protection of human rights and exercises control over
the activities of the executive branch of power.
Ukraine’s Experience
In sovereign Ukraine the constitutional development in late 20th - early 21st
century has been quite active and occurred simultaneously with the difficult social
and political processes, i.e.: the formation of a multiparty system, new electoral
standarts, the gradual decentralization of power and the liberalization of public life.
Simultaneously, the attempts were made to organize an effective system of public
authority, which had to be able not only govern the state in post-socialist
conditions, but to conduct a number of necessary state’s reforms. Obviously,
therefore, most experts tended to model of a "strong" president with authority to
manage of the executive branch of power who had to lead these processes. The
society, in which the need for a "strong hand" was formed during the time of the
socialist system and the paternalistic attitudes were spread, inclined to follow such
type of model. The experts emphasize the risks that are carried by the presidential
form of government in illiberality, post-socialist society. However, evaluating
different options, the decision was made in favor of the effectiveness of the
government, not to its limitations.
Today the fallacy of this decision is obvious, in fact the lack of appropriate
"safeguards" in the system of public power has led to the excessive concentration
of powers in the hands of the President, who actually controlled the legislative and
executive powers and had serious leverage on the power of judicial as of 2013.
Ukraine after the revolution in 2014 is on the verge of another constitutional
reform, therefore there is so important to change the priorities in the construction
9
of public authority and shift the focus on to form a system of limited and
responsible government. I consider that in its building the benchmark for us is to
be a European model of constitutionalism. Ukraine belongs to the RomanoGermanic legal family, its totalitarian past formed a statist tradition, which are
similar to some European states, and the experience of the Eastern European states
that have gone constitutional establishment of the European model, evidences of its
acceptability.
In order to find out the underlying problems and directions of reform in
Ukraine, Ukrainian experience is attempted to "apply" to the constitutionalism of
the European model, which was certain in the previous chapter, without pretending
to the depth analysis of its elements.
1) The Constitution As an Act of Constituent Power. The Constitution of
Ukraine was adopted by the parliamentary way in 1996. Later on, the
Constitutional Court explained that in this case the Parliament (Verkhovna Rada)
took on the role of constituent power and the adoption of the Constitution of the
Verkhovna Rada of Ukraine was an act of the people’s sovereignty realization
which only once authorized Parliament to adopt the Constitution. Thus it was
proved constituent nature of Ukrainian Constitution and confirmed legitimate
procedure of its adoption. But in 2000 the first step to disrupt the legitimacy of the
Constitution was made. President Leonid Kuchma, who had been elect to a second
term, made an attempt to enhance his status and reduce the role of Parliament to
the secondary. He issued a Decree on holding the referendum in April, 16 2000,
which was planned to take out six questions. Two of them, such as: on the
credibility of the current parliament and the adoption of a new constitution by the
referendum, were declared unconstitutional by the Constitutional Court due to the
fact that the ground of termination of the Council’s authority was absent in the
Constitution, moreover the possibility of holding the referendum on this issue was
absent too. The majority of citizens voted "yes" in the referendum, which was held
on the other four issues (i.e. the issues on reduction of deputy’s number from 450
to 300 deputies, on establishment additional grounds for the dissolution of the
10
parliament, on liquidation the institution of parliamentary immunity, on the
establishment of the bicameral parliament in future). Nevertheless the referendum
decision was not implemented.
The first amendments to the Constitution of Ukraine was made in December
8, 2004 as a result of events that became known as the "Orange Revolution" when
the society is not recognized results of the presidential election, that were officially
announced. Therefore, the two laws on Amendments to the Constitution and
holding the third round of the presidential elections between two candidates, who
had received the greatest support from voters in the first round, were
simultaneously adopted by the so-called "package" voting. It should be noted that
the adoption of the Law on Amendments to the Constitution was a gross violation
of procedures, which were detail analyzed in the opinion of the Venice
Commission. That became a formal ground for cancellation of the constitutional
reform in 2010.
However, the submission to the Constitutional Court had been brought in
before, but in 2008 the Court refused to hear the case, referring on the fact that the
Law on Amendments to the Constitution after it entering into force became an
integral part of the Constitution and the Court does not have the authorities for the
revision of the Constitution. After the presidential elections in 2010, the
Constitutional Court changed its legal position, and considered the Law on
Amendments to the Constitution in 2004. He found it unconstitutional due to the
violations of the aforementioned procedures and reinstated the Constitution of
1996. The body of constitutional jurisdiction actually had become the subject of
constitutional reform, which was criticized by the Venice Commission.
Due to the events of late 2013 - early 2014 the Verkhovna Rada of Ukraine
again recognized the Constitution as amended of 2004 in force, referring on the
fact that the Constitution is an act of constituent power, the competence to amend
is vested only in the parliament (Section XIII of the Constitution), and the
Constitutional Court carried its decision in 2010, went beyond its powers.
11
Thereby, the legitimacy of the Constitution after nowadays the Parliament
"status quo" was reinstated is questionable, which had been disrupted by the
constitutional reform in 2004 and the abolition it by the Constitutional Court in
2010. Therefore, the most important and urgent task is to restore the legitimacy of
the constitutional order. The best way out is to take a specially created constituent
body on creation of the new Constitution that could ensure implementation of the
constituent power of the people and will be a reliable basis for its legitimacy.
2) Constitutional Rights and Freedoms of Man and Citizen and the System of
Legal Protection. The aim of the state arbitrariness limiting is to guarantee the
rights and freedoms, therefore the constitutional rights and freedoms occupier the
central place in the European constitutionalism. On the grounds of this the question
arises: what is the role of the legal (constitutional) fixing of the rights and
freedoms of man and citizen in limiting state power? The fact seems that the legal
consolidation of human rights is an instrument to limit government arbitrariness,
whereas it provides the possibility of legal protection, but does not indicate the real
limitations of government by human rights. A kind of indicator of limited
government is the level of guarantying and protection of human rights and
freedoms, which requires the existence of an appropriate mechanism.
The Ukrainian experience is an example of confirming of this. The
Constitution of Ukraine sets the following fundamental principles: the man, his life
and health, honor and dignity, inviolability and security are recognized as the
highest social value; rights and freedoms and their guarantees determine the
essence and orientation of the state; establishment and protection of rights and
freedoms is the main duty of the State, which is responsible to the people for their
activities (Article 3). Section II of the current Constitution of Ukraine contains a
wide range of personal, political, socio-economic and other rights and freedoms.
However, the level of guarantying and protection isn’t too high, that affirmed by
the large number of applications for Ukrainian citizens to the European Court of
Human Rights.
12
By this time, the rights and freedoms of man and citizen in Ukraine have not
been effective instruments in limiting government and aforementioned the
fundamental principles were mostly declarative. The changing of the situation
needs to solve a number of issues both as practical and doctrinal nature. First of all,
the emphasis shifted from the defense of social and economic rights (the nature of
which is reinvented) to the protection of personal and political rights and freedoms.
Moreover, from the practical matter the guarantee of the rights and freedoms is
directly related with the efficiency of the mechanisms for their protection, special
attention is focused on their improvement. It is possible to distinguish three main
problems: firstly, to ensure the independence of the judiciary, which is an essential
safeguard of human rights; secondly, the improvement of the status of
Parliamentary Ombudsman (in the direction of its efficiency and preventing its
politicization); thirdly, improving the mechanism of implementation of the
European Court of Human Rights decisions.
3) The Constitutional Jurisdiction. The constitutional jurisdiction is assigned
a special role in the European model of constitutionalism. It is designed to
guarantee the stability and the rule of written constitution, to limit the legislative
powers of Parliament by declaring of its acts unconstitutional, to upgrade the
understanding of the constitutional norms through their official interpretation, to
resolve the constitutional conflicts. Such activities must guarantee the stability of
the whole constitutional system.
It should be noted that according to the Constitution of Ukraine the
Constitutional Court has two functions - ensuring the supremacy of the
Constitution and official interpretations. However, the analysis of its powers
stipulated by the Constitution and the Law on the Constitutional Court, shows that
in fact the Court performs the function of the resolving constitutional conflicts,
including a conclusion on compliance with the constitutional procedure of
impeachment of the President, regarding the law draft on Constitution amendments
to the constitutional requirements. This “constitutional silence” of such important
13
function, in our opinion, makes it impossible to properly secure its implementation.
It needs to guarantee maximum political impartiality of the Constitutional Court.
Constitutional Court of Ukraine after its formation in 1997, had to work in a
complicated political situation and, unfortunately, its efforts to preserve political
impartiality was failed. At least its decision on abolishing the constitutional reform
of 2004 and a number of other decisions relating to the revision of the previous
legal position of the Constitutional Court under the new political conditions are
interpreted in such way. Therefore, the ways of reforming of the constitutional
jurisdiction are discussing nowadays in Ukraine. We consider that in the future the
Constitutional Court is expedient to consolidate the authority to resolve
constitutional conflicts and protect it from political pressure in the best way.
4) The Parliamentarism. The vast majority of European states have
parliamentary form of governing: 19 of 28 members state of European Union have
pure parliamentary system of governing, 8 of them have mixed form (in the most
cases with the preference of parliamentary forms), and only one state (i.e. Cyprus)
is an presidential form of governing. This is not by chance, in fact the
parliamentary system mostly contribute to ensure a balance in the system of public
administration, to minimize risks, which are connected with the single governing.
However, the parliamentary government per se is not a prevention of the
usurpation of the power (the history knows examples when it leads to the
totalitarianism), the parliamentary system is just one of the elements, which is able
with others aforementioned elements to create a system of limited government.
In Ukraine the parliamentary-presidential government again was been
introduced after restoring to the Constitution of 2004. The same model existed
from 2004 to 2010 and it showed its conflict potential. This model provides the
parliamentary way of governmental forming (except of the two ministers, who
have been appointed by the President presentation) and its responsibility both to
the parliament and the president. Considering that the president retains the
authority to appoint chairpersons of state local administration (they manage in the
districts and regions as the creation of the local self-government executive bodies
14
is not fixed), the system assumes the existence of two "strong" centers of executive
branch of power, such as the President and the Prime Minister. In 2004, this
problem had to be solved by eliminating direct government control in the districts
and the regions and the creation of local self-governmental executive bodies (this
fact had to weaken the influence of the president on the executive branch). Such
changes involved the second phase of constitutional reform that is not been
conducted.
The system of relations between the President, Parliament and the
Government, with is headed by the Prime Minister in the existing constitutional
and political conditions are filled with excessive mutual dependence, which is not
conducive to its balance, but rather is highly complicated. Taking into account the
needs of Ukraine nowadays seems that these relationships have to be simplified
with the presence of significant leverage mutual influence that has on the one hand
to prevent the usurpation of power and on the other - to ensure the effectiveness of
the system.
It’s understandable, that the shifting of responsibility for the government
from the president to the parliament needs to solve another important issue –
providing a real representative character of the Parliament. At the same time it
comes about as national and territorial representation. In the conditions of the
unicameral parliament it could be achieved through a thoughtful way of its
formation. The use of a proportional system with closed lists of candidates, or even
its combination with the majority system of is not able to provide a real
representative character of the Parliament. Obviously, the transition to more
complex models of the electoral system is in time, which will be able to reflect
better expression of the voters will in forming the personal composition of
parliament.
5) The Decentralization of power. The system of limited government exists
under condition of preventing the excessive power concentration in the center - at
the national level. This problem is solved by the division of competences between
15
the various links in the state territorial structure: the Federation and its subjects, the
central and local governments.
Ukraine is rather centralized state. Local self-government operates fully only
on the first of the three levels of territorial system - in the towns and villages.
Governing of the districts and regions is held by the state administrations with the
appointed by the President chairpersons. Thus, the president oversees management
districts and regions that practically have little or no opportunities to independently
solve their local issues. In terms of mixed (parliamentary and presidential)
governing, when the government formed a parliamentary way with the direction of
the Prime Minister, it introduces an imbalance in the whole system as the President
gets opportunities to put into practice the alternative domestic policy.
Today a number of measures to decentralize power are being proposed, in
particular to create their own executive bodies with elected heads of district and
regional councils, to eliminate district state administrations and to reform the
regional administrations by leaving only supervisory powers for them. These
measures, in our view, will create the preconditions for the formation of limited
government in Ukraine.
6) The Independent Judiciary. The independent judiciary is indispensable
guarantee of limited government, without which its existence seems to be
impossible. On the judicial power vested two important tasks: first, the protection
of human and civil rights, and secondly, to exercise control over the executive. In
both cases, the courts directed to constitutional limits on government power to
prevent government tyranny.
The Constitution of Ukraine guarantees the independence of judiciary but
we must recognize that in practice it failed. Personnel issues and disciplinary
responsibility of judges are resolved by the Supreme Council of Justice, which is a
constitutional body, which consists of twenty members appointed by the
Parliament, the President, and the Congress of Judges, lawyers, representatives of
universities and research institutions (three members each of them) and the
Conference of prosecutors (two members). In addition, the composition of this
16
body included ex officio President of the Supreme Court, Minister of Justice and
Attorney General. This procedure for the formation of the High Council of Justice
provided an opportunity to put pressure on judges in the administration of the
President, under the influence of which actually formed more than half of the
body. The situation is even more complicated after the judicial reform of 2010,
when the Supreme Court was stripped of his powers, most of which were
transferred to doubtful formed (in terms of constitutional requirements) The High
Specialized Court.
Thus, the experience of Ukraine confirms that the existence of democratic
institutions and procedures is not sufficient safeguard against the usurpation of
power, which, after its occurrence, contraries to the very foundations of
democracy. So in illiberal society democratic system of government is not able to
guarantee itself existence, without additional tools and instruments it leads to selfdestruction.
The
system
of
these
guarantees
and
instruments
form
constitutionalism, which in terms of the European model is based on the ideology
of liberal democracy and in practice exists as the constitutional system of limited
government.
17