Constitution of Ukraine
Constitution of Ukraine (Конституція України; Konstytutsiia Ukrainy). Fundamental law of the independent Ukrainian state. Adopted in June 1996, the constitution of independent Ukraine evolved through a difficult process of self-extraction from Soviet norms and through lengthy political bargaining. It replaced the 1978 Constitution of the Ukrainian Soviet Socialist Republic which had remained in effect even after the 1991 Ukraine’s Declaration of Independence, its repeated amendment underscoring its inadequacies for the new Ukrainian state. Ukraine was the last of the former republics of the USSR to adopt a new constitution.
The Making of the Constitution.
The initial impulse for the new constitution could be said to have come from outside Ukraine and before the 1991 Ukraine’s Declaration of Independence, namely, with the changes to the USSR Constitution introduced by Mikhail Gorbachev in 1988. Those alterations to central Soviet political institutions were emulated the following year in the Ukrainian SSR by amendments to the 1978 Constitution of the Ukrainian Soviet Socialist Republic concerning mainly the electoral system, the people’s assemblies or councils (see soviet), and the law on language. This was accompanied by much heated debate, but resulted in the first semi-competitive elections of March 1990 to the Supreme Soviet of the Ukrainian SSR. That body then passed the Declaration on the State Sovereignty of Ukraine in July 1990 and a law on economic independence in August. In October, article 6 enshrining the political monopoly of the Communist Party of Ukraine was revoked, and article 7 amended to allow political pluralism. A parliamentary commission to draft a new constitution was established consisting of 47 deputies and 12 legal experts and headed by the speaker (chairman) of the Supreme Soviet, Leonid Kravchuk.
The commission published its basic concept for a new constitution in May 1991. In the spirit of Mikhail Gorbachev’s perestroika, it aimed to re-legitimize Soviet power and was fundamentally the old constitution. It retained the commitment to the country’s ‘socialist choice,’ offered a perfunctory acknowledgment of human rights and separation of powers, and provided for an indirectly elected president mimicking the same development in Moscow which by then had both USSR and Russian presidents. The Russian president, however, was directly elected. The ‘new’ constitution’s Leninist philosophy of assembly government (‘all power to the soviets’) and state-society relations (the state directing society, not vice versa) effectively negated the principle of separation of powers as well as the notion of civil society. The commission’s draft was vigorously debated. In July a constitutional amendment was made to introduce the office of president, and a separate law on the presidency was passed. Further constitutional amendments confirming the institution of the presidency were passed by the Supreme Council of Ukraine in February 1992.
The first full draft of a new constitution, to be followed by many others from several quarters both official and unofficial, was presented for discussion in the Supreme Council of Ukraine in July 1992 and released for public consideration in November. It was a serious attempt to break away from the Soviet mold and was understandably flawed by inconsistencies, contradictions, and lack of clarity. In the area of rights and freedoms, it was a significant departure from Soviet norms in unequivocally asserting freedoms of speech, assembly, and conscience, and in emphasizing Ukraine’s adhesion to universal principles of civil liberties. Yet it also enshrined many of the entitlements of Soviet socialism. It provided for a president with considerable powers, a cabinet of ministers answerable to the president, a bicameral national assembly, a tripartite court system, and retention of the Soviet institution of the procuracy. By its provisions it explicitly violated the principle of separation of powers and had the potential to substitute conflict and deadlock for checks and balances. Of the various possible combinations of executive-legislative relations, this version most closely resembled the presidential-parliamentary system of Weimar Germany. Nor was it clear how the political institutions were supposed to operate in the context of Ukraine’s multifarious ‘proto-parties.’
In the ensuing four years, characterized by continual conflict between president and parliament, successive official drafts moved steadily away from strong presidentialism and towards a form of semi-presidentialism with a greater role for the assembly and prime minister. Vigorous disagreement continued over the separation of powers, inclusion of socioeconomic rights, the presidency, referenda, and bicameralism. The parliamentary drafters became convinced by the president’s very actions at this time that his two principal demands—a strong presidency and a bicameral legislature—were a danger (to their own power). Ostensibly, the conflict between president and parliament centered on economic reform: as the president strove for greater power to implement his economic reform program, the parliamentarians resisted because economic reform would fundamentally harm their interests (careers, positions of power, and subsidies). A major obstacle to the adoption of the constitution during this period of gestation was the deadlock over whether it ought to be done by popular referendum (favored by the president) or by parliament (preferred by the Supreme Council of Ukraine). This stalemate helped to push the constitutional question into the background during the election campaigns of 1994.
The process resumed only in the autumn with the striking of another commission by the new president, Leonid Kuchma, and its approval by parliament on 10 November 1994. Co-chaired by Kuchma and parliamentary speaker Oleksandr Moroz, the country’s second most-powerful politician, the new commission was made up of 15 parliamentarians, 15 presidential appointees, six representatives from the high courts and procuracy, and one each from the parliament of the Crimea and the Constitutional Court of Ukraine. The new drafting body held its first meeting on 28 November. Pending the outcome of the new commission’s deliberations, President Kuchma introduced on 2 December 1994 an interim ‘constitutional law’ called ‘On State Power and Local Self-Government in Ukraine,’ meant to amend the 1978 Constitution of the Ukrainian Soviet Socialist Republic and to give himself adequate powers to govern effectively. Known as the Law on Power, it made provision for a strong presidency, a subordinate prime minister, a weak parliament, and local administrations that would be popularly elected yet accountable to the president. Like Leonid Kravchuk, Kuchma also preferred a strong executive, which ran counter to the trend of constitutional development.
On 18 May 1995, a compromise version of the Law on Power was approved by the Supreme Council, its two most contentious provisions—the parliament’s ability to impeach the president and the latter’s power to dissolve parliament—having been deleted. In June, following President Kuchma’s threat of a plebiscite, Leonid Kuchma and Oleksandr Moroz appended their signatures to a Constitutional Accord, based on the Law on Power, which regulated institutional relations and powers in the interim. This accord gave the Supreme Council of Ukraine authority to adopt the constitution, affirmed the confidence convention, restored head of government functions to the president, and downgraded the status of the prime minister. It was agreed that the new constitution should be adopted within a year.
The Constitutional Commission presented its draft to parliament on 11 March 1996, where it immediately met opposition and controversy. In addition, it generated four other drafts from several quarters all of which confronted the Supreme Council within a month of the official one’s appearance. Consideration of the official draft began on 17 April. One third of its contents was still controversial, as were procedural matters. By giving up his preference for a bicameral legislature, begging parliamentarians to make similar compromises, and finally issuing a decree on 25 June calling for a constitutional referendum in three months’ time, President Leonid Kuchma brought the process to its culmination. After a marathon 23-hour sitting on 28 June 1996, the parliamentarians, motivated partly by patriotism and partly by a desire not to let the making of the ultimate decision slip out of their hands, passed the Constitution of Ukraine by a vote of 315 to 36.
The 1996 Constitution of Ukraine contained 161 articles in 14 chapters, with an additional fifteenth chapter of transitional provisions. Unlike earlier drafts, it provided for a unicameral legislature, relatively weaker president, more prominent role for the prime minister, clearer line of accountability of cabinet to legislature, reduction of the procuracy’s powers, and the addition of a Constitutional Court of Ukraine. Many of its details were to be settled by subordinate legislation. It was less nationalistic in tone than earlier drafts and incorporated a great deal of political compromise even if not consensus.
Chapter one, ‘General Principles,’ described Ukraine as a ‘sovereign and independent, democratic, social, law-governed state’ (art 1). It was declared a unitary state with a single citizenship (arts 2 & 4): federalism and dual citizenship were implicitly excluded. Ukraine was to be a republic with sovereignty resting in the people (art 5) and state authority divided between legislative, executive, and judicial power (art 6). The supremacy of law was in effect as was constitutionalism (art 8). The state language was Ukrainian, but ‘the unfettered development, use, and protection’ of Russian and other national minority languages was guaranteed (art 10); the state undertook to foster development of the Ukrainian nation as well as of all indigenous and national minorities (art 11). While the right to ownership was recognized (arts 13 & 14), there was no guarantee of the right to private property.
Human rights and civil rights and freedoms, as well as obligations, were dealt with in chapter two. The freedoms were the usual universally recognized ones for attaining human dignity, but the rights included provisions allowing (arts 36 & 37) formation of political parties and civic organizations as well as sanctioning entrepreneurial activity (art 42). In addition, specific reference was made to the right to employment, to strike, to rest, and to social security (arts 43–46). There were also rights to housing, a decent standard of living, health, a safe environment, and education (arts 47–53), all of them a sign of nostalgia for the security of the Soviet era and all doubtful of realization. The chapter concluded with provisions for legal rights which conform to universal standards including recourse to the courts, legal aid, presumption of innocence, the right to a defense, and a bar on double jeopardy.
The electoral system and referenda were the subjects of chapter three. Apart from emphasizing citizens’ voting rights, this chapter was silent on the nature of the electoral system, at the time still a matter of dispute. Public initiation of a referendum would require the collection of at least three million signatures gathered in no fewer than two thirds of the oblasts with no fewer than 100,000 people in each oblast (art 72). A referendum might also be called either by the Supreme Council of Ukraine or by the President in fulfillment of their constitutional powers. Territorial changes could only be decided by referendum, but referenda were not allowed on questions of taxation, the budget, or amnesty (arts 73 & 74). The electoral system was to be defined in a separate law.
Chapter four dealt with the Supreme Council of Ukraine, also referred to as the country’s parliament (art 75). It was comprised of 450 deputies elected by secret ballot for a term of four years. A deputy must be a citizen and at least 21 years of age (art 76). Elections were normally held on the last Sunday in March in the fourth (later changed to fifth) year of the parliament’s term (art 77). Unlike their amateur counterparts of the Soviet period, deputies serve full time and are not allowed to fulfill any other mandate as representative, nor to be in the employ of government (art 78). Deputies must take an oath of loyalty to Ukraine, are guaranteed immunity, and enjoy parliamentary privilege (arts 79 & 80). Apart from adopting legislation, the Supreme Council’s other significant powers included: approving and amending the budget (‘the power of the purse’); removing the president through impeachment; approving the president’s nominee for prime minister; and appointing and dismissing personnel of the State Treasury and the head of the National Bank of Ukraine (art 85). Within certain limits the Supreme Council of Ukraine might pass a vote of non-confidence in the Cabinet of Ministers (art 87); when this happened, the entire Cabinet would resign (art 115), which might (or might not—this was unclear) be accepted by the president. The president could dissolve the Supreme Council if it failed to convene within 30 days of the start of its scheduled session, although this power could not be exercised in the last six months of the president’s term (art 90).
The President of Ukraine was the subject of chapter five. He or she is head of state and guarantor of the constitution and of the state’s sovereignty and territorial integrity, as well as of human rights and freedoms and those of citizens (art 102). The president is elected for a term of five years, may serve no more than two consecutive terms, must be at least 35 years of age to be elected, and may not be engaged in any other remunerative occupation while in office. Elections were to be held on the last Sunday in October in the fifth year of the president’s term (art 103). The president also swears an oath of allegiance to Ukraine (art 104) and likewise enjoys immunity (art 105). In addition to his representative and appointive powers, the President: nominates and dismisses the prime minister; appoints the latter’s nominees to Cabinet; organizes the administrative branch of government; can override acts of Cabinet; and is Commander-in-Chief of the Armed Forces of Ukraine (art 106). With the formulation of the basic principles of domestic and foreign policy being given to parliament, the president no longer has exclusive ability to direct the country’s foreign policy, a power common to chief executives. By way of compensation, the president heads and appoints the National Security and Defense Council which coordinates policy in those areas and is advisory to him (art 107). The President may be removed from office through impeachment by the Supreme Council of Ukraine for treason or other offence, which requires a three-fourths majority as well as the concurrence of the Constitutional Court of Ukraine and Supreme Court of Ukraine (art 111). The President of Ukraine is constitutionally a less powerful figure than his counterpart in the Russian Federation or in Fifth Republic France, and certainly less so than either of the first two incumbents of the office, Leonid Kravchuk and Leonid Kuchma, would have wished.
The Cabinet of Ministers of Ukraine and the executive branch of government were treated in chapter six. The Cabinet was described as being ‘answerable’ (vidpovidalnyi) to the President, yet at the same time ‘overseen by and accountable to’ (ta pidkontrolnyi i pidzvitnyi) the Supreme Council of Ukraine (art 113). This ambiguous formulation, which might easily be read as accountability to the two bodies rather than one, is fraught with potential for conflict. In that regard, the 1996 Constitution of Ukraine did not help resolve the previously ongoing power struggle between president, prime minister, and parliament. While the prime minister must secure the president’s agreement to appoint ministers and to reorganize the administration, he or she has otherwise a free hand in running the government. Most importantly, it was the prime minister’s, no longer the president’s, government program which required the concurrence of the Supreme Council (art 114). Democratic local self-government was effectively constrained by having the heads of local administrations appointed by the president, although he was compelled to dismiss them in case of a non-confidence vote emanating from the local assembly (arts 118–19).
Chapter seven was devoted to the procuracy. This peculiarly Soviet institution was charged with conducting the prosecution in courts of law, representing both the state’s interests and the individual citizen’s, overseeing the legality of investigating bodies and of pre-trial investigations, and likewise legal supervision of the carrying out of sentences in criminal cases (art 121). The Procurator General was head of a unified system of procurators, was appointed subject to the Supreme Council’s agreement, could be dismissed by the president or by a non-confidence vote in parliament, and would serve for a term of five years (art 122). No longer a state within the state, the procuracy resembled more closely an attorney general’s department.
The court system was covered in chapter eight. This specified the separation of the judicial function from other branches of government, guaranteed the independence of judges, and set out the quite strict professional qualifications for their appointment. The hierarchy of courts of general jurisdiction was capped by the Supreme Court of Ukraine. Initial appointments of judges were made by the president. There was provision for trial by jury and ‘people’s assessors’ (narodni zasidateli), the latter another leftover from Soviet times.
Chapters nine and ten dealt with the territorial organization of the country and the Autonomous Republic of Crimea respectively. Here the unity and integrity of Ukraine was emphasized, with just a nod to the distinctiveness of its regions but without hinting at the possibility of a federal structure (art 132). The oblasts comprising Ukraine were enumerated as its administrative units, along with the cities of Kyiv and Sevastopol which have special status (art 133). Following years of separatist struggles, the Crimea was defined unequivocally as an inalienable part of Ukraine and its powers as an autonomous republic were specified. Significantly, schooling and policing were removed from the jurisdiction of the Autonomous Republic of Crimea; agriculture, careers, public works, urban development, tourism, cultural facilities, public transportation, fisheries, and sanatoria were retained (art 137).
Local self-government was the subject of chapter eleven, which set out the competencies, structure, and scope of local councils and their executive bodies, still operating on the Soviet model.
The Constitutional Court of Ukraine was provided for in chapter twelve. It was to consist of 18 justices (one third of the court named by each of the president, parliament, and a panel of judges) who serve for nine years; from among themselves they were to elect a chief justice for a three-year term. The Court would resolve questions of constitutionality referred to it either by the president, at least 45 parliamentarians, the Supreme Court of Ukraine, the human rights commissioner, or the Supreme Council of the Crimea; it would give official interpretations of the constitution. A law on the Constitutional Court had been adopted in June 1992, but parliament’s delay in appointing its contingent prevented the convening of the court until after a new such law was passed on 16 October 1996. The court began to accept petitions and appeals on 1 January 1997.
Chapter thirteen was devoted to amending the constitution, a process which could be initiated either by the president or one third of the deputies in the Supreme Council of Ukraine. Amendment required a two-thirds majority in parliament; amendments to chapters 1, 3, and 13, required in addition passage by referendum called by the president. A failed amendment must wait a year before being reintroduced.
The transitional provisions of the 1996 Constitution of Ukraine designated the next elections to the Supreme Council of Ukraine for March 1998, and the presidential elections for October 1999, which were duly held. It also authorized the president to issue special decrees regulating the economy, provided these had the approval of prime minister and Cabinet. Other provisions required the formation within three months of a Cabinet and of the Constitutional Court of Ukraine, and set a five-year time limit on the reorganization of the court system.
In spite of its adoption, the 1996 Constitution of Ukraine continued to generate dissatisfaction over its allocation of powers. While President Leonid Kuchma attempted to dissolve the parliament and threatened holding referenda to circumvent it, the Supreme Council of Ukraine for its part tried to abolish the office of the presidency altogether, to impeach its incumbent, or at least to reduce its powers. President Kuchma complained that the Basic Law had not been implemented properly, yet had himself not complied with constitutional requirements when his veto of legislation had been overridden. The existence in the 1996 Constitution of Ukraine of many unsettled constitutional questions subsequently served to promote continuing conflict. Among these were: definition of police powers, procedures for selection of government officials, suspension of the Constitution in emergencies, the nature of the educational system and mass media, the doctrine of habeas corpus, group rights of ethnic minorities, and the naturalization process. Illustrative of the unsettled nature of the Constitution of Ukraine, of the lack of agreement on the basic rules of the game among the significant political players, were the many attempts in 2001 by parliamentarians to alter the electoral law and to change the constitution into a parliamentary republic, each one foiled by presidential veto.
Constitutional Politics in Ukraine since 1996.
Following his re-election in 1999, President Leonid Kuchma continued to play with the Constitution of Ukraine instead of by its rules. In a constitutionally questionable move, he called a referendum on 16 April 2000 aiming to extend his powers over those of the Supreme Council of Ukraine and to revive his model of a smaller, bicameral assembly. Voters were asked whether: (1) to give the president additional powers to dissolve the Supreme Council of Ukraine; (2) to cancel deputies’ parliamentary immunity; (3) to reduce the assembly’s numbers from 450 to 300; and (4) to introduce a bicameral legislature. The vote was overwhelmingly in favor—by between 80 and 90 per cent. The Supreme Council of Ukraine, however, was repeatedly unable to muster the required 300 votes for a constitutional amendment to pass. For its part, the Supreme Council during the course of 2001 on four occasions passed a bill to alter the electoral system to pure proportional representation (PR), which the president vetoed four times.
In August 2002, President Kuchma reversed course by proposing to transform the presidential-parliamentary system into a parliamentary-presidential one, and to reform the electoral system into what he called ‘European-style’ proportional representation. He urged parliamentary leaders to introduce the appropriate changes to the Constitution of Ukraine forthwith. The president’s change of heart was attributed to the political situation as being an attempt to outflank his foes whose performance in the 2002 parliamentary elections and growing popularity foretold a challenge looming in the presidential contest two years later. When he endorsed Viktor Yanukovych as his preferred successor in 2003, Leonid Kuchma again emphasized the need for new constitutional rules, but the pro-presidential coalition in the Supreme Council was unable to assemble the needed supermajority to vote in a constitutional change creating a parliamentary-presidential system.
The presidential election of 2004 spawned the Orange Revolution, which was resolved by a pact between Leonid Kuchma, Viktor Yanukovych, and Viktor Yushchenko, the challenger. This involved a compromise agreement to change the Constitution of Ukraine, as of 1 January 2006, to the parliamentary-presidential model. Its provisions included greater powers for the Supreme Council of Ukraine at the president’s expense in appointing the prime minister, other ministers, certain government officials, and the head of the Security Service of Ukraine (SBU), as well as exclusive power to establish its own House Rules. The president’s appointive powers were curtailed, and certain of his acts would have to be countersigned by the prime minister. President Yushchenko was forced to live with these changes once they came into effect, putting the prime minister and cabinet under parliamentary control and drastically reducing his own powers.
Viktor Yushchenko’s term of office was marked by constant conflicts, crises, attempted resolutions, and stalemate—all stemming from the Constitution’s shortcomings compounded by its lack of universal legitimacy among leading political actors. The instability of Yushchenko’s presidency was first signaled by the collapse of the Orange coalition and then highlighted when he called two pre-term elections in a row, in 2006 and 2007.
On coming to office in 2010, President Viktor Yanukovych altered the internal regulations of the Supreme Council of Ukraine, allowing individual deputies to join a ruling coalition, in contravention of the Constitution, thus giving himself control of the legislature. Then a compliant Constitutional Court of Ukraine under his direction ruled the 2004 agreement unconstitutional and reinstated the 1996 Constitution of Ukraine. This restored the presidential-parliamentary model of Leonid Kuchma’s time. Following the Court’s verdict, the Supreme Council expanded presidential powers of appointment beyond even the 1996 boundaries to include ministers, deputy ministers, and the top level of the Security Service of Ukraine. In addition, the president could issue compulsory instructions to the government and individual ministers. Parliament’s powers of oversight were curtailed, and its power to dismiss the government was subject to the president’s discretion. This was far more than voters had expected; it was called ‘super-presidentialism.’
The Euromaidan Revolution of 2014 resulted in restoration of the 2004 Constitution of Ukraine. This returned Ukraine to the parliamentary-presidential model of the political system. In general, according to proposed changes, the head of state was to have no influence on the makeup or activity of the government. The president no longer nominates the ministers of defense and foreign affairs, but does so the heads of the Security Service of Ukraine and the State Bureau of Investigation (DBR) as well as the candidate for prime minister (but only on the advice of the parliamentary majority). He can no longer annul acts of the Cabinet of Ministers, but may refer them to the Constitutional Court of Ukraine. The heads of regional administrations are appointed by the president, but nominated by the government thus nullifying the ‘presidential vertical of power’ or at least modifying it. The president’s powers in the judicial realm are limited to nominating five of the eighteen members of the Higher Council of Justice; he is deprived of the right to establish courts of law and of the right of pardon. Judicial independence is fully in the hands of the judiciary. The procedure for impeachment is simplified: it can be initiated by as few as 150 deputies of the Supreme Council of Ukraine, and the president’s fate is ultimately in the hands of the Constitutional Court justices. The president’s powers of dissolution of the Supreme Council are severely attenuated. These amendments were in due course implemented; the 1996 Constitution’s chapter 7 on the Procuracy was rescinded altogether. Restoration of the 2004 Constitution of Ukraine was not expected to prevail over the many ingrained informal practices such as patronage and corruption which had been hitherto undermining it.
In 2015, President Petro Poroshenko established a Constitutional Commission of experts and public figures to recommend changes in Ukraine’s Basic Law. This was largely a duplication or revival of an identical body initiated by his predecessor, Viktor Yanukovych, in 2012. While its creation was thought to have been motivated by a desire to modify the Constitution back into a presidential-parliamentary model, the Commission initially actually worked in earnest on changes to the judicial system and local government decentralization. These were requirements of the Association Agreement with the European Union (EU), and were endorsed by the Venice Commission and the Parliamentary Committee of the Council of Europe (PACE). By 2018, its advice ignored by the president, the Constitutional Commission had effectively ceased to function, symptomatic of the lip-service generally paid by Poroshenko to the EU’s advice and directives.
In February 2019, the Constitution of Ukraine was amended to enshrine Ukraine’s ambition to join the European Union and NATO. Under President Volodymyr Zelensky it was again amended in September 2019 to remove the immunity of deputies (parliamentarians) of the Supreme Council of Ukraine in criminal cases. A lawyer by training, Zelensky was not particularly hemmed in as president by constitutional considerations when he preemptively dissolved the Supreme Council in order to capitalize on his election victory, nor when he later worked deliberately to bring all law-related institutions under his control. His actions thus nullified the separation of powers principle as well as the notion of constitutional government. The gap between Ukraine’s European aspirations and its practices remained obvious.
As of 2023, in terms of executive-legislative relations, the key provisions of the Constitution of Ukraine were as follows. By comparison with the original 1996 document the president’s appointive powers were severely curtailed. The president was empowered: to nominate a prime minister on the proposal of the ruling parliamentary majority coalition; to nominate candidates for ministers of defense and foreign affairs; to appoint and dismiss the prosecutor-general, with the Supreme Council’s concurrence; to appoint and dismiss one-half of the governing bodies of the National Bank and the country’s TV and radio commission; and to present for the Supreme Council’s approval proposals on the appointment and dismissal of the head of the Security Service of Ukraine. Other than defense and foreign affairs ministers were to be appointed by the Council of Ministers on the prime minister’s nomination. The Council of Ministers was directed by the prime minister in execution of its own program as approved by the Supreme Council of Ukraine. While the president was no longer able to dismiss the prime minister, the latter’s resignation or his government’s loss of a vote of confidence in the Supreme Council would result in the resignation of the entire Cabinet of Ministers. Politics in Ukraine consequently centers on each of the principal actors—president, prime minister, and assembly—attempting to overcome the constitutional limits on their powers or to block others’, often by informal means.
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[This article was written in 2023.]