Т. Azarenko
T. Azarenko,
External PhD Student
(International Solomon University)
(Dissertation Advisor Professor P.F. Martynenko)
BICAMERALISM AS A PROBLEM
IN THE CONSTITUTIONAL
Process OF UKRAINE
Key words: bicameralism, bicameral parliament, constitutional process, constitution,
territorial decentralization..
The main condition of the democratic
state is the constitution in which people are
proclaimed the main source of the power that
can be implemented through electing of representatives to the bodies of power by their
citizens.
The main place among such representative organs belongs to the parliament that despite its centuries-long experience didn’t form
the clear requirements to the structure, means
of representation, powers and authority of the
parliament. The choice of the institutional
structure of the parliament is quite controversial for young, unitary countries to which
Ukraine belongs: unicameral of bicameral (or
more), that we will be discussed further.
Thus, bicameralism (comes from an English word bіcameral – two-chambered) – is
a bicameral structure of the parliament, in
which two chambers perform legislative and
other functions that are provided by the Constitution, however their powers and authority
should not be doubled. The main aim of the
second chamber is more qualitative representation of regions by means of territorial decentralization and additional verification of laws
that are passed.
The following system has been practicing
since the ancient time, in Athens – Ecclesia
(The Assembly of citizens) and the Boule of
400, also in Rome – The Assembly of citizens
©© Т. Azarenko, 2013.
and Senate. Later it found the support of such
prominent thinkers as C. Montesquieu, who
in 1748 in his work «The Spirit of the Laws»,
told that bicameralism was the key element of
the mechanism of the separation of powers:
so that there shouldn’t be the abuse of power,
it should be divided into three branches and
the body of legislators should be divided into
two parts, in order that «one of them coordinated another with its ability for mutual inhibitions», N. Machiavelli, J. Madison, J. Mill
and others. Since that time it has been brought
up to date and found its legal confirmation in
many constitutions of unitary and federative
countries.
Nowadays the overwhelming majority of
world’s population lives in the countries with
bicameral parliament, tendencies of growth of
which increased in number in the 90s of the
last century, exactly in the unitary countries.
Countries with federative form of government
have mainly steady convictions concerning
the choice of the parliament structure, unitary
countries that have experience of unicameralism and bicameralism face a dilemma.
This question didn’t sidestep the independent Ukraine where the constitutional process started on the 16 of July 1990, and it has
been of vital importance up to the present moment since the proclaiming of the Declaration
of Independence of Ukraine.
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Bulletin Academy of Advocacy of Ukraine
As M. Onishchuk noted the prospects of
evolutional development of Ukraine were impossible without rethinking of regulations of
the existing constitutional law and forming of
fundamentally new constitutional principles
of further development of democratic, sociallegal state and harmoniously developed civil
society in Ukraine [1].
Thus, after the proclaiming of Ukraine as
the sovereign state they started to draw up a
new Constitution. Conditionally the constitutional process in Ukraine can be divided into
several stages.
The first stage lasted from the proclaiming
of Ukraine as the sovereign state in 1990 to
the adoption of Constitution in 1996.
First in June 1992 the parliament adopted
the conception of the future Constitution and
created the Constitutional Committee that
drafted the new Constitution.
The first bill that was ready in January
1992 by the resolution of the Verkhovna Rada
of Ukraine «About the Draft Constitution of
Ukraine» on 01.07.1992 № 2525-XII was
subject to the public gaze.
The following bill considered the bicameral parliament «The National Convocations»
that comprised the Council of Deputies consisting of 359 deputies and was elected for the
period of 5 years for single mandate election
districts with approximately equal number of
voters and the Council of Ambassadors that as
a body of territorial representation was elected
for a period of 5 years for single mandate election districts on the basis of equal representation – 5 Ambassadors from each district, the
Republic of Crimea and Kyiv.
Constitutional draft considered powers
and organization of the work of the National
Meetings in general and exceptional powers
of each chamber in particular.
The bill according to the following constitutional draft should be adopted by each of
chambers but which of two chambers passes
the law first and which accepts the law by the
majority of votes is not stated clearly. Besides
the second chamber that considers the bill by
the simple majority could veto it or make al-
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No. 3(28) 2013.
terations or additions accepting the bill in general in that case it is immediately given back
to the chamber that approved it first. Consent
with such alterations or additions of the chamber that approved the law first means that the
law is passed by the parliament. To eliminate
differences that can emerge between chambers when considering the bill, the Conciliatory Commission of chambers is created on a
parity basis.
The bill submitted by the Conciliatory
Commission is considered at the joint meeting
of chambers. If the bill is not approved at the
joint meeting of chambers, it is considered to
be rejected by the National Meetings. If differences emerge between the chambers when
considering budget and financial questions,
questions of the territorial structure, demographic and migratory policy the conciliatory
commission is not created. The final decision
on questions of budget and financial activities
is approved by the repeated vote of the Council of Deputies, and on the questions of the territorial structure, demographic and migratory
policy – by the Council of Ambassadors [3].
Having analyzed the functions of the second chamber on this bill O.A. Fisun proclaims
that exceptional authorities of the upper chamber on this bill had to embrace questions connected with regulation of administrative and
territorial structure, analysis of regulations
that formed legislation, was indicative of the
fact that the Council of Ambassadors had to
function not as a meeting of representatives
of regions’ interests, but rather as a meeting
of the most authoritative people, directed to
the parliament from the definite areas. In particular the absence under this bill of the possibilities of direct influence or tight control on
the part of the upper parliament on the budget
questions is demonstrative and this is basic in
the logic of its construction on the example of
introduction of the regional interests [4, 200].
In July 1992 the following constitutional
draft was the subject to the public gaze in
which 200000 citizens of Ukraine took part.
More than 47,000 remarks and proposals were
submitted, 6,000 of them were taken into ac-
Т. Azarenko
count, in particular 188 paragraphs of the draft
were supplemented, 48 paragraphs were withdrawn and 30 new paragraphs were submitted
The revision of the new constitutional
draft had taken place by November, a variant
of constitutional draft (May – November 1993)
considered the name of the Ukrainian parliament «Nation-wide Rada of Ukraine». Two
chambers «Derzhavna Rada» (200 deputies)
and «Rada of Territories» (3 deputies from
each district and the Republic of the Crimea
and Kyiv) had to form its part [8, 197–264].
Alterations of the new bill were not significant, but the weighty stress was performed
at the introduction of regional interests of the
Upper Chamber, as for example M. Tsvik
proved that for the consistent conducting of the
principle of the unification of protection of the
interests of all people as a whole with interests
of separate regions it was reasonable to found
the second chamber – Rada of territories as a
part of the Verkhovna Rada that could be chosen on the principles of the special representation from separate districts. Activity of this
chamber could be also additional restrictive
factor for the Lower Chamber and the means
of preventing its excessive confrontation with
other branches of state power [13, 34].
In the opinion of V. Kravchuk and M.
Kravhuk the Upper Chamber that can be
created on the basis of the representation of
regions and civil organization can become
a legal means of influence of regional elites
upon formation of state policy, reflection in
the legislation of regional interests and interests of territorial organizations. Thus the Upper Chamber could become the equalizing
factor of the Ukrainian state system, provide
higher level of stability of political system of
Ukraine, could assist decrease in cases of rise
of conflict situations between the representative organ and the government [9, 53–55].
But given draft of a bill was not passed by
the Supreme Soviet.
Next constitutional draft considered only
unicameral parliament, besides the constitutional process was suspended almost for a
year.
Constitutional process renewed on the 10th
of November 1994. The Verkhovna Rada of
the second convocation appointed а new constitutional commission, whose co-heads were
President Leonid Kuchma and the Head of the
Verkhovna Rada Oleksandr Moroz and on the
8th of June 1995 a new constitutional agreement «About the basic principles of organization and functioning of state power and local
self-government in Ukraine for the period of
adoption of new Constitution of Ukraine» was
signed.
New Constitutional Commission together
with workgroup of the constitutional commission in which seven famous Doctors of Law,
professors and other people invited in order
to elaborate definite paragraphs of the constitutional draft and nine scientists- lawyers on
constitutional questions prepared in short period of time two drafts of the Constitution of
Ukraine, approved by the Constitutional Commission – 23 November 1995 and another version of the draft on the 11 March 1996. Both
these constitutional drafts considered bicameral parliaments, namely the draft of the 1995
considered that the National meetings (variant:
Verkhovna Rada) that include the Chamber of
Deputies that is elected on the basis of common, equal and direct elections for 4 years and
the Senate that is formed on the basis of equal
representation of three people from the Autonomous Republic of the Crimea, each district
an Kyiv, and also two people from Sevastopil
for 4 years by means of indirect elections. As
in previous drafts no one could be a senator
and a deputy at the same time.
To the exceptional authorities of the
Chamber of Deputies the following functions
could be concerned: confirmation of candidacy of the Prime-minister and the head of the
National bank suggested by the President, appointment of the head of the Accounts Chamber and the half of its staff, confirmation of
decision of loaning and contracting of international loans by Ukraine, decision-making
concerning programs of governmental activities and controlling governmental activities,
confirmation of the most important state pro-
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Bulletin Academy of Advocacy of Ukraine
grams. The Chamber of Deputies impeached
credibility to the Cabinet of Ministers.
The Senate independently had to appoint
the Deputy Head of the Accounts Chamber
and the half of its staff, confirm the appointment of the half of the Constitutional Court,
appoint by President’s recommendation the
Head and judges of the Supreme Court of
Ukraine, confirm the appointment of Procurator General, members of the Central Election
Commission during parliamentary elections
and elections of the President. Also the Senate
under this draft decides the issue of the territorial structure of Ukraine [6, 1–18].
In May 1996 the Venice Commission
took apart the second edition of the draft of
the Constitution of Ukraine, approved by
the Constitutional Commission on the 11the
of March 1996, and highly appreciated the
bicameral parliament provided by the draft,
mentioning that «the creation of the bicameral
body of legislation – National Meetings, that
are comprised of the Chamber of Deputies
and the Senate, and divide the body of legislation into two parts and provide inner balanceness of power. This, certainly will promote the
improvement of legislative activities and the
creation of favorable climate in the country»
[7, 300].
Besides political parties, civil organizations and scientists from all regions of Ukraine
took part in the constitutional process that
developed and made public about 20 drafts
of the Constitution (drafts by: KUNu, URP,
HDPY, SPY) biggest part of which suggested
bicameralism as a mechanism of optimal division of powers and responsibilities and rise in
quality of law drafting [14, 25].
The text of the draft of the Constitution of
Ukraine improved by the Temporary Special
Commission until the second reading considered the only body of legislative power
in Ukraine the Parliament – Narodna Rada
of Ukraine, on 28 June 1996 at 9:18 after 24
hours of continuous work the Verkhovna Rada
of Ukraine adopted and put it into execution
the Constitution («for» gave vote 315 members of parliament) in which the only organ
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No. 3(28) 2013.
of legislative power was the Verkhovna Rada
– unicameral parliament.
The second period comprises 1996 – 2004.
2000 became the most important during
this period, as exactly on the 16 April 2000 –
there was a poll of Ukrainian citizens on the
question of reforming the system of state administration. The last question of the following survey was as follows «Do you support
the need for creation of bicameral parliament
in Ukraine, one chamber of which could represent the interests of the regions of Ukraine
and promote their fulfillment, and make relevant alterations to the Constitution of Ukraine
and electoral legislation?», this proposal was
supported by 81,68% of citizens. That’s why
on the 29 May 2000 the President of Ukraine
created the Constitutional Commission that
submitted the draft of the Constitution to the
Verkhovna Rada. The draft of the Constitution
№ 5300-1 that was developed by the group
consisting of 152 Deputies under which the
Parliament of Ukraine should consist of two
chambers: the Verkhovna Rada of Ukraine and
the Senate of Ukraine, constitutional composition of chambers – 150 representatives (the
total number of parliamentarians, in accordance with the results of referendum should be
reduced to 300) became the response to the
initiative by L. Kuchma. The Senate should
be elected on the basis of the common, equal
and direct law of public elections by means
of secret vote for the period of 6 years and
should be renewed every two years by one
third on account of rotary election of senators
of Ukraine [12].
But the Verkhovna Rada of Ukraine rejected the draft submitted by the Deputies of
Ukraine, and the Constitutional Court arrived
at the conclusion that: «Analysis of the modern practice of foreign states shows that the
creation of the bicameral parliament in the
unitary country is efficient. The structure of
Parliament in itself (unicameral or bicameral)
doesn’t influence directly on the content and
degrees of human and citizen rights and freedoms. But the way of formation of chambers
and division of powers can affect them. In the
Т. Azarenko
draft suggested by the Deputies of Ukraine the
division of powers between the chambers of
the Parliament of Ukraine – was carried out
incompletely ignoring the fact that the Constitution of Ukraine was the solid integral act
and the introduction of alterations to which required the comprehensive approach. This considered mostly the alterations connected with
the introduction of the bicameral parliament
and which according to their character were
rather large-scale» [2].
On the 26th December 2002 newly elected
Parliament took a decision to create the Temporary Special Commission of the Verkhovna
Rada on development of draft laws of Ukraine
in order to introduce alterations to the Constitution of Ukraine and the discussion of draft bill
by the President in March-April 2003 «The
introduction of alterations to the Constitution
of Ukraine». The Chamber of Regions (the
upper Chamber that should comprise three
representative from the autonomous Republic
of the Crimea, districts Kyiv and Sevastopyl)
according to the draft had at its disposal all
range of supervising functions, among which
a veto power for laws adopted by the Lower
Chamber; budget inspection and controlling
the activities of the Cabinet of Ministers, appointments and dismissals of key civil servants
[11, 80]. The draft considered the strengthening
of role of the territorial interests in the functioning of the political system of Ukraine.
On a by-order basis of the Administration
of the President of Ukraine a poll was held the
results of which showed that 30% of respondents were for the introduction of the bicameral
parliament, 28% were against, а 34% had no
opinion [5].
Based on the results of the discussion the
President of Ukraine rejected three the most
disputable norms of law – among which there
was the introduction of bicameral parliament
in Ukraine and on the 19 June submitted a renewed draft to the Verkovna Rada, and on the
8th of December 3 constitutional drafts were
adopted which considered the transition from
the presidential-parliamentary to the parliamentary-presidential form of government.
The third period – the end of 2004 and up
to the present day.
During the period from 2005 to 2009
in Ukraine the problem of bicameralism of
Ukrainian parliament was discussed, but no
draft concerning this question was registered
in the Verkhovna Rada, and only in March
2009 the legislation concerning the alterations
to the Constitution of Ukraine № 4290 was
submitted by the president of Ukraine.
The following draft took into account
all requests of citizens that were expressed
during the nation-wide referendum of 2000
concerning the parliament. National Meetings of Ukraine are the only body of legislative power that comprises two chambers – the
Chamber of Deputies, that are elected for the
period of 4 years) and the Senate to the general composition of which three senators are
included that are elected for the period of 6
years in the autonomous Republic of Crimea,
each district, Kyiv, and cities that are considered to be the equivalents of districts. Every
two years there is a renewal of the one third of
the elected senators. The general composition
of the Senate also comprises the senators who
were presidents of Ukraine after the termination of presidential powers with their consent
for the term of life with the exception of presidents who were removed from the post by
impeachment.
Powers of the National Meetings of
Ukraine in a common panel session of the
chambers, The Chamber of Deputies and the
Senate that except for the approval of passed
laws by the Chamber of Deputies had very influential personnel powers, namely: the upper
chamber has to appoint the General Procurator of Ukraine recommended by the President,
the head of the Security Service and the head
of the Antimonopoly Committee of Ukraine,
the head of the National Bank of Ukraine,
the half a composition of the Council of the
NBU, the Central Election Commission, one
fourth of the members of the highest council
of justice, the National Council on the questions of television and broadcasting etc. were
explained in complete detail.
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Bulletin Academy of Advocacy of Ukraine
Bills should be introduced for consideration to the Chamber of Deputies that had the
right to pass their main regulations paragraph
after paragraph and to pass the law as a whole.
The law passed by the first chamber during a
period of five days is submitted to the Senate
by the Head of the Chamber of Deputies. The
Head of the Chamber of Deputies in his turn
after the receiving of the law could during a
period of fifteen days of the session pass or
reject the law. If during the given period he
doesn’t approve the decision, the law is considered to be passed by the Senate. If the Senate accepts the resolution about the rejection
of the law, the Chamber of Deputies can pass
the law again by the majority of the common
membership [10].
But draft of a bill of 2009 that provided
the bicameral parliament that could be successful means of territorial decentralization
was declined.
The next constitutional reforms concerned the change of the form of government
and eligibility, as to the transition of Ukraine
No. 3(28) 2013.
to bicameral parliament this question is still
considered to be open, though the question of
introduction of the second chamber of the parliament that should consist of representatives
of regions, should become legislative security of the development of regions and should
have powers to control the observance of law
and have the veto is being raised more often
lately.
But before the implementation of constitutional reforms it is reasonable to conduct
system reforms in the sphere of democratization and management (territorial, administrative, electoral, and others), then the second
chamber will become the efficient method of
territorial decentralization, the possibilities of
regions will be expanded, delegation of their
interests in the political field will be provided
and not only of party or separate groups of
population, will become a factor for more
qualitative legislation and stimulating factor
in case of change in the negative side of political policy of the state.
References:
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проек­ту Закону України «Про зміни до конституції України за результатами всеукраїнського
референдуму 16.04.2000 року» від 11 липня 2000 р.
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[Електронній ресурс]. – Режим доступу : //http://www.kiis.com.ua/txt/170603/analityka.htm
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Т. Azarenko
9. Проект Закону України «Про внесення змін до Конституції України» № 4290 від 31
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SUMMARY
The article examines the constitutional process under a controversial element of which
has a bicameral parliament. Also focuses on the feasibility of the mechanism of territorial
decentralization.
Резюме
У статті досліджуються стадії конституційного процесу спірним елементом якого став
двопалатний парламент. Також акцентується увага на доцільності даного механізму територіальної децентралізації.
РЕЗЮМЕ
В статье исследуются стадии конституционного процесса спорным элементом которого стал двухпалатный парламент. Также акцентируется внимание на целесообразности
данного механизма территориальной децентрализации.
Received 12.06.2013.
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