Development of executive power branches in independent Ukraine

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Bogdan Khmelnitsky Melitopol State Pedagogical University (Ukraine, Melitopol)

Faculty of Nature-geographic

The stages of formation of the branches of executive power from the time of proclamation of Ukraine independence in 1999 -were determined in the article. The problems of formation of the branches of executive power in the conceptions of constitution were analyzed. The conclusions concerning the role of the branches of executive power during the process of creation of the state on basis of new constitution of Ukraine were made. The problems of the interrelation between the principles of power sharing and the interaction of different branches of power were reflected in the monographic studies of Ukrainian scientists: O. Kanevsky, V. Sherstobit, O. Skripnyuk etc. The history shows that an attempt to resolve the confrontation between the branches of power and establish cooperation was the adoption of the Law of Ukraine «On State Power and Local Self-Government» and the Constitutional Treaty in 1995. However, with the adoption of the new Constitution of Ukraine, the conflict situation and confrontation between the branches of power do not disappear.

Keywords: branches of executive power, draft constitution, president, prime minister, interaction.

Анотація

Визначено етапи формування гілок виконавчої влади з часу проголошення незалежності України у 1999 році. Проаналізовано проблеми формування органів виконавчої влади в концепціях конституції. Зроблено висновки щодо ролі органів виконавчої влади в процесі створення держави на основі нової Конституції України. Проблеми взаємозв'язку між принципами розподілу влади та взаємодії різних гілок влади були відображені в монографічних дослідженнях українських учених: О. Каневського, В. Шерстобіта, O. Скрипнюка та інших. Історія показує, що спроба вирішити конфронтацію між гілками влади та налагодити співпрацю -- це прийняття Закону України «Про державну владу та місцеве самоврядування» та Конституційного договору 1995 року. Проте, з прийняттям нової Конституції України, конфліктна ситуація та протистояння гілок влади не зникають.

Ключові слова: гілки виконавчої влади, проект конституції, президент, прем'єр-міністр, взаємодія.

The beginning of the modern stage of state creation is connected with the official adoption and gradual introduction of the idea of «distribution of power» In the Declaration on State Sovereignty of Ukraine, one of the points proclaimed that «the state power in the Republic is carried out according to the principle of its distribution to the legislative, executive and judicial». But until the full development of the executive power as an organ of state power, not one decade will pass.

Because, as can be seen from the political processes of the present time, the question of the distribution of functions between the branches of power and their interaction for the benefit of the state and the Ukrainian people needs a concrete solution.

The purpose of this study is historical analysis on the basis of archival data, historical and political science publications, the right to operate the executive branch of power and the problem of the constitutional definition of executive powers in Ukraine at the initial stage of state formation.

The question of the functions of the head of state in the system of power sharing is considered in the works: V. Sherstobit, O. Skripnyuk, Y. Todiki and V. Yavorsky, A. Zaitz, N. Nizhnik, E. Nazarenko, R. Mikheyenka, S. Seregina.

The founding powers of the President as head of state regarding the formation of executive branches for the content of the Constitution ofUkraine in the June 28 1996 are considered in the works of N. Nizhnik, V. Averyanov, R. Mikheyenka, S. Seryogina, V. Sherstobit and many others [10, p. 50-52].

Uncertainty of the status of the Government in Ukraine, which is one of the most urgent theoretical and practical problems of the national creation of the state, is considered in the works of V. Kampo, V. Sherstobit, V. Averyanov, J. Todiki, T. Grozicka, V. Shatilo, I. Pakhomov V. Skripnyuk. The authors primarily focus on the weakness of the Government's position in relations with the President and the Supreme Council of Ukraine, its excessive dependence on the editorial staff of the last edition of the Constitution of Ukraine on June 28, 1996.

An analysis of existing scientific research on the problem of creating and interacting branches of power in Ukraine was made by R. S. Martinyuk [10, p. 50-52].

The executive authorities have passed certain stages of development. After the adoption of the Declaration on the State Sovereignty of Ukraine on April 18 1991, the Verkhovna Rada adopted the USSR Law «On the Formation of the Cabinet of Ministers of the USSR», on May 21, 1991, the Law of the USSR «On Amendments and Additions to the Constitution (Basic Law) of the USSR in connection with the improvement of the system of public administration», on June 25 in 1991 the Verkhovna Rada of Ukraine adopted a resolution «On Elections of the President of the USSR».executive power ukraine constitution

Organizations of state power concerned two acts. The Law of the USSR «On the Establishment of the Post of the President of the USSR and the Introduction of Amendments and Additions to the Constitution (Basic Law) of the USSR» and the Law of the USSR «On the President of the USSR» of July 5, 1991.

In the process of preparing a new Constitution, the issue of the formation of executive branches was considered fairly carefully. For example, in the Transcript of the meeting of the Constitutional Commission of November 20 in 1990 and documents to it, it was noted that the system of the form of government of the Republic will include: legislative power - the Parliament of the Republic; the executive power - the President; the judiciary - the Supreme Court of the Republic. As can be seen from the draft Constitution of 1990, the President simultaneously exercises the functions of the Head of State and Head of Government, and is the exclusive bearer of all executive power, both real, effective, and nominal power.

The Concept did not envisage the creation of the post of Head of Government, which could compete with the head of state in the exercise of executive power. The Vice President recommended by the President plays a political role only to the extent that it is acceptable to the President. Ministers do not create a separate Government, that is, the only collegial body that is characteristic of parliamentary states [2, ark. 96].

In the further Concepts of the new Constitution, the Cabinet of Ministers was created, which applied to the executive authorities and the President performed his functions and powers with the help of the Cabinet of Ministers. The Cabinet of Ministers implements the executive power in accordance with the new Concept of the Constitution, directing ministries, state committees and government branches. The composition of the Cabinet of Ministers is determined by the President.

But to resolve the crisis in the interaction of the legislative and executive authorities, the Concept envisaged the right of the Verkhovna Rada to declare a referendum on early termination of the powers of the President; when, on the basis of the referendum, the people express their confidence in the President, the Verkhovna Rada should be dissolved.

The president must systematically maintain ties with the Verkhovna Rada. In cases of the most important decisions, the President must necessarily consult the Head of the Verkhovna Rada, the chairmen of the relevant commissions. This should balance the legislative and executive powers. The president must annually address the Verkhovna Rada with a report on the political and socio-economic state in the republic [3, ark. 115].

Problems of the development of an independent state in Ukraine, the constitutional process evoked resonance in the world. On 3-5 March in 1992 in Prague in the Central European University an international seminar on the problems of «Constitutional construction in Ukraine» took place. The seminar contained the above remarks on the draft Constitution. For example, the comments relate to articles 141.12, 177.20, 179.194 and 228.8, which mention the powers of the President to issue decrees, but with the amendment that this is done in a telegraphic style.

It is necessary to clarify and highlight these powers more clearly. In Article 143.4, where ministers were not allowed to be deputies or delegates, they were advised to clarify at the seminar and to more explicitly say this in the Concept. Article 177.8 raised the question of whether the President could bypass ministers and give orders directly to ministerial officials. An example was given that the German Chancellor has an apparatus of more than 400 people. Article 188 concluded that the Prime Minister can not control the Cabinet under the conditions stipulated in the draft for March 1992 [4].

Thus, as can be seen from the discussion of the Constitution Concept, the world community has a clear interest and interest in the constitutional, political processes that occurred in Ukraine after the proclamation of independence.

In the draft Constitution passed by the Verkhovna Rada of Ukraine for discussion in July 1992, the legislative power belongs to the National Assembly of Ukraine. A variant of the bicameral parliament is being considered. As for the executive power, in this version it belongs to the Head of State - the President of Ukraine. He has the right to legislative initiative, veto the laws approved by the National Assembly and returns them for re-examination.

The President heads the system of executive branches, exercises general management of the Cabinet of Ministers of Ukraine and directs his executive activities, appoints and dismisses ministers in agreement with the Council of Deputies. The Cabinet of Ministers of Ukraine (the Government) reports to the President, and in its activities is guided by its program and decisions, the Prime Minister is the Deputy President, in charge of him, subordinate and accountable to him. Termination of the powers of the President entails the resignation of the Government.

The draft Constitution noted that ministers and heads of other central executive branches carry out management of the assigned spheres of government and bear responsibility to the President for the state of affairs in these areas. Members of the Government and leaders of other central executive branches have the right to participate in meetings of National Assemblies, Chambers and their Commissions [5].

From this draft Constitution there is a desire to form a state with a strong presidential power. It implies the concentration in the hands of the President of Ukraine of the functions of the Head of State and the executive.

In the draft Constitution of October 26, 1993, in Article 143 the Cabinet of Ministers (Government) is recognized as the supreme body of state executive power in Ukraine. The Cabinet of Ministers is guided in its activities by the President's program. The Cabinet of Ministers is responsible to the Verkhovna Rada of Ukraine. The president is the head of state. Thus, the Cabinet of Ministers for the first time is proclaimed the supreme body of state executive power of Ukraine.

The final definition of the role and place of executive branches in the system of government was held in the new Constitution of Ukraine. With the formation of an efficiently functioning system of executive branches, or otherwise - the government, there are high hopes.

V. B. Averyanov, relying on the Constitution of Ukraine, singles out aspects that allow for a more detailed understanding of the system of executive branches. The first aspect - the separation of executive authorities from other types of state branches - has been most visually realized. This is achieved in the text of the Constitution through the use of the term «public authorities» common to all state branches (Article 5), as well as the allocation among the latter of such types as «legislative, executive and judicial branches».

Regarding the second aspect of the system of executive authorities, in the Constitution, on the one hand, all hierarchical levels of executive branches (both higher and central and local) are reasonably combined in one section VI «Cabinet of Ministers of Ukraine». Other executive authorities». On the other hand, the entire complexity and specificity of the relationship between the post of the President and the executive branch of power is quite fully taken into account.

According to his real situation, the President is not a single branch of power, but acts as a head of state with significant preferences (primarily personnel) regarding the executive power. In other words, the President is an executive power only functionally, that is, through a certain amount of his powers. But it is not part of its structure, that is, as a separate structural link in the system of executive branches.

That is why the Constitution lacks the definition of the President as «the head of the executive power». After all, the «head» of the branch of power is such a subject of this power, which is the highest structural link of a certain system of branches, which contradicts, as already explained, the present state of affairs.

Within the third aspect, it must be remembered that the real strengthening of this branch of power, increasing its effectiveness is impossible without creating an effective «vertical» of the executive power. It is thanks to the latter that a proper realization of power decisions from the top down is achieved [1].

It is difficult to determine the role of the President in the vertical of the executive branch. Political scientists, lawyers, historians argue that in Ukraine there was a so-called dualism of executive power. Its essence is such that there is a head of state, a «conductor» of the executive branch, a government exists next to it and its functions are headed by its chairman.

The specificity of this model is that the relationship of these subjects to the branch of the executive branch is not the same. If the government enters it as a separate structural link in the system of branches, the President, as already noted, is only functionally - through a certain amount of his powers in the sphere of executive power.

Analyzing the Constitution of Ukraine on the issue of the Government, we can conclude that the normative definition of the Cabinet of Ministers in it is much broader than the scope and significance of those opportunities and powers that are directly or indirectly assigned to the Government by section 6 of the Constitution, and section 5 - President of Ukraine».

The analysis of the provisions, regulations, prescriptions of the Constitution, the resulted norms of the Basic Law, which are enshrined in Articles 113 and 114, did not receive the necessary constitutional provision through the Government's office with clear powers that would guarantee its recognition as one of the highest authorities in the system of state branches of power. The real place of the Cabinet of Ministers is much lower than the Constitution of Ukraine, and its role in the system of power is much weaker.

The reason for such a situation is seen in the fact that the Constitution has secured the great powers, guarantees, and opportunities for the President of Ukraine.

Researchers of executive branches in Ukraine singled out significant shortcomings in this situation. In particular, the following are highlighted: the President is removed from direct political responsibility for the consequences of the government, the Prime Minister does not act as an independent political figure and turns into an official who does not have sufficient powers not only for ministers, but also for his own apparatus. As a conclusion - a decrease in the effectiveness of the executive branch, constant changes in the government, confrontation along the lines of the President - the Prime Minister - the Parliament [7, p. 58].

According to the «complex center» model, it is clear that the legal status of the government, headed by the Prime Minister, can not and should not have any secondary significance in the sphere of executive power. On the contrary, it is the Cabinet of Ministers that should be the highest structural link in the state administration, which relies on the practical implementation of all the basic powers of the executive. Including those that are attributed to the jurisdiction of the President of Ukraine, but there are no exclusive preferences for him, say, regarding appointments.

Regarding the ratio of the powers of the President of Ukraine and the Cabinet of Ministers, S. Seregin believes that in 1996 the Constitution deprived the President of the status of the head of the executive power, referring to him exclusively as head of state, but at the same time retained (almost in full) the scope of powers that belonged to the President under the Basic Law in 1978. Broad powers to form executive power and control over its activities enabled the President to subordinate to himself both the government and the entire vertical of the executive power.

Internal contradictions of the Constitution lead to political confrontation in the interaction of branches of power [12].

V. B. Averyanov, determining the place of the President in the system of state administration, notes that subordination to the Cabinet of Ministers to the President would testify that the latter is the highest structural link in relation to the government, and this contradicts Article 113 of the Constitution. In accordance with the Constitution, the Cabinet of Ministers of Ukraine is defined as the supreme body in the system of executive authorities, which in its activities is guided by the Constitution and laws ofUkraine, acts ofthe President ofUkraine (Article 113).

In general, the structural units of the three organizational and legal levels are singled out in the system of executive authorities:

1) the highest level - the Cabinet of Ministers (in functional interaction with the President);

2) central level - ministries, state committees and other subordinated to the Cabinet of Ministers of the central executive authorities;

3) local, or territorial level - on which:

- branches of executive power of general competence - the Council of Ministers of the Autonomous Republic of Crimea, regional, district, Kyiv and Sevastopol city state administrations;

- branches of special - sectoral and functional - competencies that are both directly subordinate to central executive authorities, and are subordinate at the same time to the central and local executive authority.

But the Constitution of Ukraine limited the powers of the President of Ukraine regarding the management of the executive power structures. This is evidenced by Articles 87, 114 and 115 of the Constitution of Ukraine.

Decree of the President of Ukraine 1994-2004. L. D. Kuchma, April 14, 2000, «On the strategy for reforming the civil service in Ukraine» the Prime Minister's post is classified as political, which means that he must focus on defining government policy, solving strategic problems of the economic and social development of society [13].

L. Kuchma, being the President of Ukraine, believed that in Ukraine the Prime Minister's powers are immeasurably greater than those of the President, also emphasizing that he is a supporter of strong presidential power. On the pages of scientific publications there was a discussion on the fact that the President's performance of the functions of the head of the executive power in 1991-1997. led to the degradation of the government and the executive in general. Supports this opinion S. Seregin.

But when we consider this issue from an objective and subjective point of view, we come to the conclusion that it is not worth talking about the degradation of the government during all these years. First, the period falls on the presidency of L. Kravchuk and L. Kuchma, and the role of executive authorities changed over time. For example, in 1993, the government of Prime Minister L. Kuchma had more powers on many issues than the President of Ukraine L. Kravchuk, using the right to issue decrees. The administration of the President L. Kuchma carried out a significant part of the reform steps, and not the Cabinet ofMinisters [6].

One can agree with S. Seryogin's opinion that practice, when the President is an informal chairman of the executive power, is inadmissible from the point of view of the foundations of the constitutional order of Ukraine - the principle of supremacy, distribution of power and legality. In the presence of the Prime Minister, who heads the government, there is no reason to create yet another nongovernmental body to manage the system of executive branches of state power.

Therefore, an important point remains a more thorough definition in the Constitution of Ukraine of the powers of the President and executive authorities in order to prevent conflict situations between branches of power.

At the initial stage, the creation of the state was not without conflict situations that arose between the President and the Prime Minister. Russian researcher M. Sakharov, analyzing the place of the president in the presidential parliamentary republic, came to the conclusion that in countries with the appropriate form of government, the problem of the correlation of powers that necessarily forms the basis for the contradictions between the president and the prime minister necessarily arises [11, p. 14]. Relations between the President and the Prime Minister prior to the adoption of the new Constitution were regulated by a number of Laws, as well as by the Constitutional Treaty in 1995. The researchers consider the conflict less period in Ukraine to be September 1991, July, 1992. The reason for this is that the first President of Ukraine L. Kravchuk became a compromise figure, which satisfied almost all major political forces. However, due to objective reasons, the authority and position of L. Kravchuk rocked.

The decline in production and the decline in the standard of living of the population was characteristic of all countries of the former «socialist camp» [8]. To bring the country out of the crisis, it was necessary to establish cooperation between the President and the Prime Minister, to seek effective methods of cooperation.

But the conflicts only sharpened. The appointment of Leonid Kuchma as prime minister became a catalyst for tension. In the spring of 1993, it was necessary to clearly define the further development of the executive power structure: either the government heads the executive branch, or the president remains at the head of the executive branch. L. Kravchuk in June 1993 issued a decree, which significantly limited the powers of the Prime Minister, and the public was asked to abolish the post of Prime Minister and to enter the post of vice-president. L. Kravchuk should have solely appointed ministers.

Parliament would have the right to express a lack of confidence in some ministers or the government as a whole. The president remained outside parliamentary control. The Verkhovna Rada did not support the President's proposal. The relationship between the President and the Prime Minister was even more acute. But from October 1993 to May 1994, the conflict between the President and the Verkhovna Rada comes to the fore.

The confrontation continued under President L. Kuchma. In 1994-1995 years. There is a political transformation of power, which was predetermined:

1) The blurring of sources of power in Ukraine;

2) Differentiation of power and responsibility of its bearers for the results of their activities;

3) The growth of misunderstanding between power structures and the public;

4) The struggle between horizontal and vertical structures of power [9, p. 73].

The history shows that these factors significantly influenced the further events in Ukraine. An attempt to resolve the confrontation between the branches of power and establish cooperation was the adoption of the Law of Ukraine «On State Power and Local Self-Government» and the Constitutional Treaty in 1995. However, with the adoption of the new Constitution of Ukraine, the conflict situation and confrontation between the branches of power do not disappear.

The situation that developed in 1999 put forward new requirements to the effectiveness of organizing the activities and interaction of executive authorities with other branches of government, which were significantly increased in connection with the real needs of the fullest introduction of ideas and provisions of the new Constitution. But these requirements often, unfortunately, did not find adequate reconstruction in the official policy of reforming many state structures and their staffing. Vital changes in the administrative apparatus were not complex, contradictory, and sometimes spontaneous.

As a consequence, the need for administrative reform, which would be able to establish cooperation and cooperation of all branches of government.

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