The weakening of excessive presidential powers has been one of the key demands of Euromaidan protesters and the centerpiece of the opposition’s deal with Yanukovych signed in late February.
The semi-presidential system reinstated after Yanukovych’s ouster revived the parliament’s power to form the government and left the president with limited influence over the executive branch. Still, given the flaws of the 2004 Constitution, most political actors agreed on the need to adopt a new constitutional text.
The main objectives of further constitutional amendments were to: (1) delineate the powers of the president and prime minister more clearly in order to avoid future intra-executive conflicts, and (2) expand the powers of local government and limit the veto power of central authorities over local decision-making.
Although the parliament formed a special commission to draft the new constitutional amendments, the newly elected president was expected to take the initiative and introduce his own draft.
In his election program, Petro Poroshenko pledged to maintain parliamentary-presidential design, pursue decentralization, and avoid seeking additional powers for the president. However, the draft of his proposed constitutional changes, which he presented to the Rada on July 3, shows exactly the opposite.
If adopted, Poroshenko’s amendments will strengthen the president’s leverage over the government, the parliament, and local councils, while putting him outside of external institutional control.
Enhanced Coercive Powers
Control over the "coercive" agencies has been used by all of Poroshenko’s predecessors to exercise informal control over the “vertical of power” to prevent defection and enforce compliance. However, the current hybrid system requires the parliament’s approval for the appointment and dismissal of the Prosecutor General and the head of the security service (SBU). As a result, for most of his presidency, Viktor Yushchenko had to compromise with the parliamentary majority to name the country’s head prosecutor and he had difficulties passing his candidate for the SBU through the parliament. Lacking effective coercive powers, Yushchenko had major difficulties imposing his will on other parts of the state apparatus.
Poroshenko’s proposal gives the president exclusive dismissal powers regarding these two positions, thus more strongly subordinating them to the head of state. In addition, the president wants to gain an exclusive dismissal power over a new coercive agency, the State Bureau of Investigations, which is supposed to fight political corruption among state officials and the political elite. The draft law establishing this bureau is still under the parliament’s review.
By controlling this new coercive triad, Poroshenko would gain extensive “blackmail” powers over government officials on all levels as well as new levers of influence over his political opponents. His oversight powers will be further enhanced through direct control of all the regulatory bodies, which are currently subordinated to the parliament.
The proposed changes would give the president the single-handed power to appoint and dismiss the heads of the antimonopoly committee, the national commissions for securities and stocks, and broadcasting. This will, in effect, weaken the parliament’s oversight powers and give the president additional influence over the government’s economic policies.
Concentration of power over all coercive agencies leaves the president himself seemingly immune to outside control and, in effect, turns him into the national prosecutor-in-chief.
While the president’s constitutional draft amendments gives the prime minister the power to pick candidates to head the Foreign and Defense Ministries, with both subject to the president’s subsequent approval, this seems more like a symbolic concession in exchange for enhanced coercive capacity.
Poroshenko’s proposed constitutional modifications also changes the structure of local government by eliminating oblast administrations subordinated to the president and introducing the institution of presidential regional representatives (“oblast” will be renamed into “region”).
The functions of state administrations would now be transferred to the executive bodies formed by a popularly elected regional council and led by the council’s chairman. At the same time, the president will gain additional powers over local government through his representatives in the regions and raions.
Presidential representatives would not only have oversight powers, but also “coordinate local territorial bodies of central executive agencies,” which automatically would give them influence over management of state assets and distribution of state funds.
Strangely, the government will have no sway over the representatives who control its own local agencies – they will be appointed, dismissed, and remain accountable solely to the president. In addition, they can also suspend any decision of the regional council they deem unconstitutional and submit it for review to the Constitutional Court. If this court sides with their judgment, the president can disband any regional or raion council by personal decree – a power that none of the previous Ukrainian presidents ever had.
Given the continued politicization of Ukraine’s judiciary system, the president could in effect block any of the local council’s decisions he disagrees with and “blackmail” it into submission by threatening dissolution.
Poroshenko’s constitutional proposal, hence, limits the local government’s capacity for independent decision-making, which contradicts the very principle of decentralization he advocated throughout his election campaign.
The Guard without the Guardians
The president’s proposed changes also maintain some of the constitutional provisions that often resulted in the paralysis of central decision making under Yushchenko. The most important of these is the president’s power to suspend government resolutions for being unconstitutional, which Yushchenko used in order block many of the government’s appointments or economic policies that went against his personal interests.
Since it usually took months for the Constitutional Court to review some of the suspended resolutions, this gave the president additional leverage to force the government to take his preferences into account. By combining it with enhanced coercive capacity, Poroshenko will further strengthen his informal control over the Cabinet.
At the same time, Poroshenko’s constitutional draft offers no new outside checks over the presidency. It keeps the same convoluted procedure of presidential impeachment, which Kuchma devised in 1995 to make himself immune from the threats of the parliament. It also subordinates key investigative bodies to the president, which precludes the possibility that he and his administration would be appropriately controlled by any of the law-enforcement agencies. Finally, it allows the president to form a loyal majority in the Rada by eliminating the norm that only factions rather than individual MPs can form the new parliamentary majority.
Will it Pass?
The prospects of Poroshenko’s bill, which would ultimately require the support of two-thirds of the Rada, are unclear. Two of the pro-government factions - Bat’kivshchyna and Svoboda – strongly criticized the draft and promised to offer an alternative. Only the factions of UDAR and Party of Regions offered their tentative support – hardly sufficient to have the draft approved even with the simple majority.
Unless Poroshenko drops his demands for expanded presidential powers and agrees to genuine decentralization, his draft is likely to suffer the fate of so many constitutional proposals submitted by his predecessors.