Article title Interrelationships Between Democracy, Parliamentarism and the Rule of Law: the European Standards and Today’s Ukrainian Realities
Authors

Doctor of Law, Professor, Corresponding Member of the National Academy of Legal Sciences of Ukraine, Honored Lawyer of Ukraine (Kyiv, Ukraine) koziubra@ukma.edu.ua

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 11/2019
Сторінки [83-97]
DOI https://doi.org/10.33498/louu-2019-11-083
Annotation

Based on the analysis of today’s national constitutional and legislative practice and foreign experience, the article highlights the indivisible interrelationships between democracy, popular sovereignty and such related concepts as State’s power, parliamentarism and the rule of law. In this context, the author makes a critical assessment of the draft laws adopted by the new Ukrainian government concerning amendments to the Constitution of Ukraine. Resting upon the European and international standards and the practice of constitutional regulation of interrelationships between democracy and parliamentarism in foreign countries, the author soundly argues that a number of amendments proposed by the new Government to the Fundamental Law of Ukraine do not comply (are inconsistent) with the rule of law principle, particularly, with such its fundamental components as requirements to the balance of direct and representative democracy and legal certainty.

It is argued that the people as the bearer of sovereignty and the only source of power in Ukraine are subject to the rule of law principle, and any of their decisions should be taken in strict accordance with its requirements, in particular, the principles and provisions of the Constitution of Ukraine.

In this regard, the author specially emphasizes the need for a professionally balanced and responsible attitude to amendments to the Fundamental Law of Ukraine. Without denying certain shortcomings of its text and the possibility (expediency) of eliminating them, the author at the same time emphasizes that the Constitution of Ukraine accumulates all of the basic values of constitutionalism built up on the centuries-old period of its development. Therefore, attempts of each new government to adjust the Constitution’s text to its own vision are nothing else but manifestations, on the one hand, of constitutional idealism, i.e., an inclination to believe that constitutional innovation is able of radically changing the situation in the country regardless of the readiness to such changes on the part of society in general and political elites in particular, and on the other hand – of constitutional nihilism which is, unfortunately, traditional of them – a disrespectful attitude to law, legislation and the Constitution of Ukraine.

Despite their seemingly multi-vector orientation, these are the sides of the “same coin” – lacking political and legal culture, distorted legal consciousness and unprofessionalism which sometimes borders on dilettantism.

Keywords popular sovereignty; representative democracy; balance of democracy forms; legal certainty; constitutional idealism; constitutional nihilism; professionalism; populism
References

Bibliography

Authored books

1. Bähr, Der Rechtsstaat: Einepublicistische Skizze (1864) (in German).

2. Stetsiuk P, Osnovy teorii konstytutsii ta konstytutsionalizmu [Fundamentals of the Theory of Constitution and Constitutionalism] (Astroliabia 2003) (in Ukrainian).

 

Edited and translated books

3. Izenzee J i Kirhhof P, Gosudarstvennoe pravo Germanii, т 1 [Constitutional Law of Germany] (per s nem, In-t gos-va i prava RAN 1994) (in Russian).

4. Konstytutsiinyi Sud Ukrainy. Rishennia. Vysnovky. Knyha 16: 2018 [Constitutional Court of Ukraine. Decisions. Conclusions. Book 16: 2018] (Shevchuk S vidp red, In Yure 2019) (in Ukrainian).

5. Sobota K, Pryntsyp pravnoi derzhavy [Principle of the Rule of Law State] (perekl z nim, Baite 2013) (in Ukrainian).

6. Urbinati N, Iskazhennaja demokratija. Mnenie, istina i narod [Distorted Democracy. Opinion, Truth and the People] (per s angl, Izd-vo Instituta Gajdara 2016) (in Russian).

7. Yevropeiskyi demokratychnyi dorobok u haluzi vyborchoho prava: materialy Venetsianskoi Komisii, Parlamentskoi Asamblei, Komitetu Ministriv, Konhresu mistsevykh i rehionalnykh vlad Rady Yevropy [European Democratic Experience Relating to Electoral Law: Proceedings of the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, the Congress of Local and Regional Authorities of the Council of Europe] (per z anhl, Lohos 2009) (in Ukrainian).

 

Journal articles

8. Henkin L, ‘A New Birth of Constitutionalism: Genetic Influences and Genetic Defects’ (1992) 14 Cardozo Law Review 533 (in English).

 

Websites

9. ‘Peredvyborcha prohrama kandydata na post Prezydenta Ukrainy Volodymyra Zelenskoho’ [‘Election Program of the Candidate for the President of Ukraine Volodymyr Zelenskyi’] (accessed: 15.09.2019) (in Ukrainian).

10. Portnykov V, ‘Profesionaly nikoly ne domovliatsia z dyletantamy’ [‘Professionals Will Never Agree with Dilettantes’] (Espreso.TV, 23.09.2019) (accessed: 15.09.2019) (in Ukrainian).