Forms of Government
A similar attitude has been adopted with regard to the reforms in the matter of the form of government. It has been extremely difficult to suggest a preference between the different alternatives of parliamentary, presidential and semi-presidential governments.
The main purpose of such a choice should be the elaboration of a solution that could guarantee a democratic decision-making process and the parliamentary control of the executive in conformity with the European tendencies. A fair separation of powers and a balance between the executive and the legislative assemblies should be required. If the Venice Commission had shared the opinion that the direct election of the head of state is the solution best fitted in a period of constitutional transition to democracy in a modern pluralist society, it would have had to have confronted two different alternatives. On the one side, there was the intent occasionally claimed by the Central and Eastern countries that their legislators had to take into account the desire of the people to have a role in choosing the head of state. The discontinuity with the communist regime had to be achieved through an enlargement of the electoral powers of the citizens. The system would have emphasised the unity of the state and reduced the fractional impact of the political parties on the selection of the political actors. On the other side, there were opinions that a presidential system would have increased the authoritarian tendencies of government which were historically present in some ex-communist states, for instance members of the Commonwealth of Independent States. These guidelines contrasted with the European model of representative democracy. The purpose of the new democratic reforms had to be to substitute an institutional pluralism for the previous communist concentration of power. The direct election of the head of state could have favoured the return of old practices of government under the cover of the need to strengthen the powers of the executive. Therefore, even if there was no justification to contest in principle the legitimacy of the choice of the direct election of the head of state, practical reasons suggested alternative solutions.[30] It looked advisable to emphasise the importance of the parliamentary control of the executive and of a fair balance of powers. For instance, frequently a preference for semi-presidential government did not meet the hostility of the Commission. This choice ensured that control of the executive was exercised by the legislative assemblies, which is more difficult in a presidential system.[31]It is true that, according to political analysts, a semi-presidential government favours forms of possible, difficult ‘cohabitation’. Also, parliamentary systems can be the source of potential danger in a period of transition. It is well known, for instance, that in the Czech Republic President Havel strongly supported the adoption of a proportional electoral legislation for the parliament in view of the adoption of the new post-communist constitution. That choice was correct. The deliberation of a new constitution has to encompass all the political positions that are present in the society. This has always been the position of the Venice Commission. The correction of proportional electoral systems is frequently suggested in the name of efficiency of governance. However, even in a parliamentary system of government it would be unfair to concentrate all powers of decision-making in a parliamentary majority elected according to a non-proportional electoral system. Therefore, parliamentary government can also present problematic aspects and risks.
The Commission held that it is also true that the direct election of the head of state by the people can increase the rifts present in a society. The concentration of the supreme representation of a nation in one person elected outside a parliamentary agreement (which normally implies a qualified majority) can endanger the credibility of governmental institutions.
In a period of transition, attention had to be paid to perilous developments for the unity of a country. Legal considerations had to be balanced with political and social concerns. Legal doctrine should research the cooperation between the sociology and political science.After 10 years of the transition process in Central and Eastern Europe, the political conflicts in the ex-communist states signalled further, new problems. As Holovaty clearly remarked in his intervention at the Lund Seminar,[32] the case of Ukraine[33] implied that there were questions regarding more than just the powers of the head of state. The country had adopted its new Constitution in June 1996, but it had still not been implemented. The President, being dissatisfied with the present Constitution, tried to overcome the difficulties of the transition through authoritarian measures and blamed the parliament for the delay. He proposed a referendum concerning not only the revision of relevant aspects of the form of government, but also the actual tensions of the political situation of the country. However, the Commission stated in an Opinion that the initiative did not deserve international support.[34] The President aimed to bypass the procedure for the revision provided for by the Constitution. Moreover, the proposed amendments were not acceptable according to the generally shared constitutional yardstick, even if a lot of the incumbent deputies were connected with the old communist nomenklatura and a change of the political personnel was needed. Inter alia, there were provisions concerning the reduction of the number of members of the incumbent legislative assembly and the limitation of parliamentary immunity. Both novelties were regrettable. Obviously, the change in the number of deputies could be adopted only with regard to a future parliament and could not be used as a weapon in the conflict with the incumbent chamber. And the curtailment of the immunity contrasted with a historical achievement of parliamentary independence.
Eventually there was an evident risk of destroying the present balance of the powers. The all-Ukrainian referendum was substantially conceived as a vote on the question whether the present assembly enjoyed the confidence of the electors. The vote had to be expressed at the same time of the vote on the constitutional reform of the parliament. The combination of the two questions contradicted the principle requiring the unity of the subject matter of the question submitted to the electors in a referendum. Moreover, it was proposed that in the event of the withdrawal of the confidence in the incumbent assembly, the President was authorised to dissolve the parliament. Therefore, the proposal was aimed at substituting a direct relation between the head of state and the electors for the link between the people and the deputies. The President wanted to become the centre of the constitutional system with the disruption of the present equilibrium of the powers. There was a danger of the personalisation of the state's power and of an increase in authoritarian tendencies. The assembly risked no longer being the representative institution of all the political groups present in Ukrainian society. There were sufficient reasons to justify a negative Opinion of the Commission. All these purposes contrasted with the intention of the supranational institutions to favour the establishment of a fair and mature democracy and to encourage a free political choice between the different political alternatives of the people.At the centre of the political conflict in Ukraine was the problem of the economic policy required by the transition to a market economy. According to Holovaty,[35] the President had adopted many decrees, which created parallel regulations alongside numerous statutes that were already in force. He had thus enlarged the scope of his functions. He was able to do so because the Constitution allows him to adopt decrees dealing with economic matters not yet regulated by parliamentary legislation.
In fact, the definition of economic matters or issues is not an easy task. An arbitrary elaboration is always possible. A great deal of private or commercial law is connected with the establishment of a market economy. The exercise of the presidential powers should have been balanced by an effective parliamentary control. If the best solution of the adoption of presidential decrees in the framework of a previous, insufficiently updated legislation was not possible, the best alternative would be the adoption of decrees to be submitted for parliamentary approval by a fixed deadline. The decrees should lose their legal effect in the case that the parliament failed to give its approval. These proposals were only discussed in an academic frame, as happened for the solution of entrusting the parliament with the power to provide general guidelines for the adoption of presidential decrees. There was a possibility of substituting formal and procedural guarantees for the substantive bonds provided by a previous legislation, but the inherent difficulties could not be overcome.V.