New democratic constitutionalism in Ukraine: problems of development - Государство и право реферат

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New democratic constitutionalism in Ukraine: problems of development

Development in Ukraine of democratic, social, lawful state according to the constitutional development. The feature of the new democratic constitutionalism. Constitutionalism - introduction of the system of government based on the current Constitution.


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New democratic constitutionalism in Ukraine: problems of development
General provisions. According to scientific classification of political modes, they can be differentiated into democratic and authoritative-totalitarian. As for democratic modes they are divided into liberal, old democratic (presidential mode in the USA, modes of parliamentary democracy in Great Britain, Germany, etc.) [1] and liberal - conservative, new democratic modes (parliamentary-presidential modes in Poland and Lithuania, parliamentary modes in Czech and Hungary) [2]. According to democratic types of political modes constitutionalism can be liberal or liberal - conservative and old democratic or new democratic.
Development in Ukraine of democratic, social, lawful state according to the constitutional development of the state, is possible solely under the condition of introduction of new democratic constitutionalism, that is of the system of public power on the basis and according to the current Constitution of Ukraine establishing the certain balance and restriction concerning the branches of state power, and concerning attitude of state to the citizens. This version of constitutionalism essentially differs from the previous, postSoviet constitutionalism which substantially was reflection of the old authoritative, the so-called bureaucratic-oligarchic mode.
For Ukraine new democratic constitutionalism is a new stage in development of the constitutional system, conditioned by changes of its political mode owing to the victory of the democratic Orange revolution of 2004[3]. The given type of constitutionalism is characteristic for the new democratic countries for the Central and Eastern Europe, the Baltic countries, and it means, that Ukraine really follows the way of modernization and clearing of the constitutional system of elements of the postSoviet constitutionalism based on the so-called formal or fiction constitutionalism.
In our opinion, the feature of the new democratic constitutionalism is that it is the transitive form from the postSoviet (post totalitarian - for the countries of the Central and Eastern Europe) to the modern European constitutionalism [4]. The constitutional experience of these countries specifies that the certain features of post totalitarian constitutionalism remain [5] and they can be overcome during a rather long period of time.
In the scientific publications various terms for designation of constitutionalism in the countries of the former socialist countries and the Soviet Union are used. Some authors only identify the national constitutionalism in the given countries, for example as, the Ukrainian constitutionalism, the Russian constitutionalism, the Romanian constitutionalism, etc. Others examine constitutionalism in the given countries through a prism of post communist (post socialist) constitutionalism [6]. Others use the term "the postSoviet constitutionalism" for its characteristic in the former Soviet Republics (Russia, Kazakhstan, Byelorussia, etc.). Some authors do not at all allocate additional attributes and characteristics for the category of constitutionalism, applying it, as the certain universal that is irrespective of the existing political mode, form of government, state system and other characteristics of the state.
In our opinion, in conditions of tense political struggle over the problem of constitutionally-legal development of the society and the state in Ukraine, it is necessary to characterize constitutionalism from the point of view of the current democratic political mode. In fact quite frequently experts and even scientists make theoretical and practical mistakes because they try to interpret the Ukrainian constitutionalism without taking into account social political methods of realization of public political power in the state.
It is obvious, that the features of the postSoviet constitutionalism in Ukraine are enough appreciable as very little has changed in the real constitutional life which is till influenced with tendencies of returning to pre-orange times. We mean returning to traditions of "controlled democracy" concerning territorial units and regions after the local party elections of 2006, about constitutionally-legal nihilism not only of common citizens, but also of the certain part of the political elite brought up on authoritative - totalitarian doctrines, about permanent encroachments on the constitutional principles of the national independence and sovereignty on the part of contrastate opposition, etc. who frequently discredit the Ukrainian statehood, etc.
Nevertheless, it is obvious, that it is impossible to change historical development of Ukraine. And consequently the new democratic constitutionalism, undoubtedly, will develop, but it needs time and laborious work.
Concept of constitutionalism. Both the concept of the new democratic constitutionalism [7] and understanding of the basic concept of constitutionalism are under the discussion in the Ukrainian science.
What is the constitutionalism? From modern positions the constitutionalism is the set of principles, the order of activity and mechanism traditionally applied for the purpose of restriction for the state power. Limits of restriction by the Constitution of the state power and all-round warranting of the constitutional rights and freedoms of a person and a citizen depend, appreciably, on our belief in the mechanism of the constitutional regulation and on active actions of organs of the government and local self-management on realization of its regulations. The belief that the constitutional norms, principles and values are capable to limit legally the state power and to level its any realization embodied in the corresponding scientific theory and corresponding political and legal activities, is the doctrine of constitutionalism [8].
In broad understanding this phenomenon covers the theory of constitution, history and practice of the constitutional development in this or that country, in a group of the countries, in the world community on the whole. In its narrow sense the constitutionalism is the system of ideas and knowledge about the fundamental values of democracy: their system, forms of expression, methods and the degree of realization, the set of political representations about such system of the state and society which meets the conventional beginnings of democratic development, thus "the legal aspect of the characteristic of the constitutionalism is connected with the legal fixing of its fundamental ideas in the constitution" [9]. That is, in fact, constitutionalism is the system of representations about all-democratic, all civilization political-legal value of the state organized society.
Therefore to answer the question: whether the constitutionalism exists in this or that state, it is necessary to estimate the level of development in it of the constitutional legality and legitimacy of the constitution itself, that is its recognition and support by mass public consciousness. Basing of such estimation it is possible to answer the question whether it is necessary to change the constitution or how to realize the constitutional modernization whether the nation and political elite of the country is capable to such modernization and on the basis of what values it should be realized [10].
It is necessary to specify, that values of the constitutionalism should be interpreted historically. It means that they cannot be considered as certain absolute as it can lead to substitution of the present values by formal criteria. In fact, the constitutionalism, as well as the constitutional law, deals, first of all, with the formalized concepts and categories.
It is known, that there are countries which are, certainly, democratic, however do not have some elements traditionally considered as attributes of the democratic constitutional state. For example, Great Britain does not have constitution as the uniform document in its common understanding; they do not held nation-wide referenda - the supreme and priority form of national will; they do not have the constitutional court and there is no rigid division of the powers; the upper chamber of the parliament still preserves the medieval order of its formation, etc. That is, at first sight, owing to absence of the given attributes, there exist essential grounds for refusing this state in availability of the constitutionalism. However, hardly anyone would dare to do it as, except for formal criteria and external attributes, it is necessary, first of all, to be guided by practice of constitutionalism which bases on century long traditions of democracy.
At the same time, some countries can be proud of having the whole arsenal of the constitutional values: presence of the written constitution, declaration of all forms of direct democracy, in particular, nation-wide and local referenda, presence of the constitutional court, ombudsmen, etc. However, the state of affairs with maintenance of democratic rights and freedoms of the citizens in the given countries is far from ideal and therefore it is impossible to speak about the constitutionalism in the given countries.
It is necessary to note, that constitutions and constitutionalism are not identical categories: first - it is a written document, second - a way of thinking (an expectation and a norm) due to which policy can be directed according to written rules or political conventions. We believe that the constitutionalism should be, first of all, connected with the following: the constitutional ideas and theories; presence of the corresponding statutory-legal basis; achievement of the certain actual democratic mode; system of protection of rights and freedoms of the citizens, the constitutional order and the constitution.
The precondition of the constitutionalism is, certainly, the constitutional ideas. There are a lot of them, and therefore we shall try to specify the most important. First, the constitutionalism exists when the main attention is paid not to the text of the constitution (even full of the most democratic institutes), and to deep respect of connection of the state and society with the law and the constitution. Second, the constitutionalism comprises introduction in public consciousness and every-day life of people of an idea of high authority of the human person, respect of its honour and dignity. Third, the constitutionalism means conscious and real participation of people in realization of functions of the power; not simple presence of the certain state organs (the parliament, the president, the government), but, mainly, the democratic order of their formation, mutual relations between them, general subordination to interests of people, etc. Fourth, the constitutionalism is the presence of procedural mechanisms of protection of rights and freedoms of the citizens from activity of the organs of the government and of the organs of local self-management; it is also creation and participation in public affairs of public associations. Fifth, the constitutionalism is the public consciousness based on conviction in necessity and benefit of institutes of authority and laws which allow the citizens to realize their opportunities in achievement of social justice and protection of the proved interests with the help of their actions and the corresponding steps of authority based on the norms of the law [11].
The precondition of the constitutionalism as it has already been mentioned is presence of the statutory-legal basis. In this connection in conditions of the Ukrainian society it is necessary to speak about sociopolitical value and utility of the official text of the current Constitution of Ukraine of 1996, as "the legal interpretation of new political, economic and spiritual realities" [12]. It is difficult to provide realization of the above mentioned constitutional ideas if instead of the uniform text there exist isolated decisions. The uniform text of the Constitution of Ukraine has systematic value for the society and state, it is the huge political-organizing and social factor.
Adoption of the constitution means the termination of one and the beginning of the next stage of sociopolitical history of the country. But not always the new constitution, even rather democratic, leads to formation of democratic constitutionalism. And changes of the constitution do not result automatically in development of the constitutionalism. As for the constitutionalism it is more important the political mode of the state than the text of the constitution.
In other words, the important component of the constitutionalism is presence of the certain political mode adequate to the constitution. We mean that it is necessary to have both the democratic constitution, and the political mode logically conditioned by its regulations: there can not be a skew at which the constitution is democratic according to its text, and the real life and the political mode do not correspond to it - as it was, for example, in the Soviet, and in part in present in the postSoviet times.
So, from the point of view of the constitutionalism - the constitution is the supreme law, instead of the simply program document, and therefore any actions of the state should correspond to it and realize in the limits of the constitutional restrictions.
For high-grade functioning, the constitution should correspond to actual public relations. And this problem is constant: the real life always seems worse, than it is in theory and is written in the constitution. Each country tries to solve this problem; and Ukraine is not exception. In fact the constitution is the ideal to which the society aspires. The main thing is in desire and the ways of approaching of this ideal.
The constitutionalism provides the certain stability of constitutionally-legal institutes. Stability as one of the basic features of the constitution is the duration of its action without entering important changes. Stability of the constitution is based on firmness of the social and constitutional order in which conditions it is adopted and which order it makes out.
At the same time, it is impossible to avoid modification in the constitution. The global experience specifies that it is the way in which all states at any systems have to pass it through. However, the dynamic beginning in the constitutional regulation can promote that the constitution should not be only the law in writing, but the act of direct action. It is necessary to realize, that the constitutional dynamics if it is caused by real, instead of "virtual", needs of the social life, helps to put in pawn stability in the constitutional regulation that is to provide its further action without changes.
Certainly, everything should be taken into account. If changes in the constitution are made often, that is caused by political ambitions of these or that leaders or political forces, it is not necessary to speak about its stability, and, hence, and about real constitutionalism.
Formation of the new democratic constitutionalism. In the countries of Central and Eastern Europe, the Baltic countries it took place on the boundary of 1980-1990. Ukraine had also a chance to follow the road of the developments of new democratic constitutionalism, but owing to different circumstances it did not happen.
Summing up above-mentioned and comparing modern Ukrainian constitutional practice, it is possible to make the conclusion that in Ukraine there is gradually developing the new democratic constitutionalism "splash" of scientific researches in the constitutional sphere; the written Constitution; presence of such democratic institutions, as the Parliament, the President, the plenipotentiary of the Supreme Rada of Ukraine on human rights, etc.
But thus the level of mass constitutional consciousness of the citizens, and the constitutional order in the state as the process and condition of realization of the constitutional norms, is still far from meeting high standards of the new democratic constitutionalism. However it does not harm the process of developing of the new democratic constitutionalism based on the new democratic norms of the Constitution of Ukraine of 1996 (with changes of 2004), of the scientific researches of domestic lawyers and public figures, including past times (M. Dragomanov, I. Franko, M. Grushevskiy), and through mastering and introduction of the positive European experience in the constitutional life of Ukraine.
The constitution of Ukraine of 1996 in conditions of the new political mode shows the advantages. It actually serves the legal basis for the new democratic constitutionalism, embodies its basic elements, both through the text, and through the corresponding practice of its application, acting as the basis of the free democratic order.
However, thus it is necessary to realize, that the Constitution of Ukraine, as well as any constitution in general, does not eliminate social contradictions (religious, class, etc.); it only creates civilized forms for their sanction. The constitution does not also produce social reforms, however, creates the lawful bases for them. It does not resolve any public question, but it is impossible to solve any of them without it [13].
Let's speak about some scientific problems of developing of the new democratic constitutionalism in Ukraine.
In our opinion, the most significant problem of the new democratic constitutionalism in Ukraine is absence of ideology which would be perceived by the overwhelming majority of the population of Ukraine, which would integrate all social groups and layers of the population and which would be supported by the Ukrainian state. Here it is rather disputable the regulation of Article 15 of the Constitution of Ukraine which proclaims that no ideology can admit the state as obligatory. In fact, this original "constitutional objection" against presence of ideological function of the state which existed, exists and will exist during all historical epochs as long, as the state will exist. In our opinion, the Ukrainian state should more actively propagandize and embody into life the global humanistic ideology of good which bases on the conventional civilized human values, and the brightest representative of this idea is philosopher G. Skovoroda.
At present Ukraine draws attention of the whole world and, taking into account the certain global fashion on Ukrainian, we can become a sample, a positive example for inheritance by other states in case of the embodiment into life of the new democratic ideology of constitutionalism. Transition from the existing, in fact erroneous and egoistical, anthropocentrical system of world outlook values to the global planetary paradigm of outlook can be the key.
One of the first steps in this direction should be expansion of the sphere of the constitutionally -legal regulation determining institutions of ecosystem. It is necessary to note the insignificant role which in modern constitutional law - being the leading branch of the national law - is allocated to ecosystem in comparison with sociosystem. Taking into account uniqueness of existence of the human being solely in the corresponding environment, it is quite natural, that in the constitutionally-legal regulation the ecosystem can take the in comparison with socio-and techno systems. If we support Nature, Nature will support us.
Problems of globalization of the modern constitutionalism and constitutional law are closely connected and, are appreciably, determined by increase of the role of human rights in the system of coordinates "the international community - the national states - the individuals". In 20th century human rights gradually began to get global features which reflected in the known standardization of vital and social needs of people. The amplifying similarity of conditions of life, general economic, information, cultural spaces, internationalization and transnationlization connect the individuals with large-scale systems. Internationalization, in the opinion of experts, has entered the finishing stage. The world is becoming uniform not only from the philosophical point of view, but in reality [14].
The change of civilization paradigm of development, the planetary life becomes interdependent. The world community has closely approached appearance of the new phenomenon - world wide civilization covering all mankind. Human rights, being reflection and active lever of these processes, have gone to the next level of the development - the level of globalization. They show the sufficient maturity for participation in problems of "global harmonization" [15] of the world, that, undoubtedly, finds reflection in the constitutional law and is embodied in institutes of modern constitutionalism.
In this connection, it is necessary to pay attention on original harmonization and biologization of the constitutionalism. The given tendencies are shown in increase of influence of general humanitarian values of mankind on the constitutional law, transferring of the centre of gravity on maintenance of the natural rights and freedoms of a person, declaration of their supreme value, recognition in liability and firmness of rights and freedoms, impossibility of their cancellation, narrowing of contents and volume, etc.
Simultaneously, biologization of the constitutional matter is shown in activities of the modern state on restriction of negative consequences of scientific and technical progress, in particular in such new areas, as genetics - medical biology. As a matter of fact, the new scientific direction is developing bioethics which is connected with transplantation of human organs, change of sex, artificial fertilization, and problems of abortions. The given phenomena cannot remain aside supervising and regulating (including the constitutional level) the state intervention into the given area.
Influence on the most deep structures of the human organization on the part of biomedicine, intervention of biomedical technologies in a gene of the person, reproductive functions, mentality and processes of dying of the person, biological copying by means of manipulations with genes (cloning), creation of the so-called transgenes animals by means of implantation of human genes and other fantastic positions of today of achievement of science can have far-reaching consequences for regeneration of the person and environment There is created the risk of genetic, and is moral and spiritual negative consequences for the mankind. Consecutive evolution in direction set by modern tendencies of life can entail final loss for the person of the person "himself" in the mirror of civilization there can one day appear the appearance of absolutely another creature [16] of a habitual image.
It conditions cardinal revision of the concept of mutual relations of the state and the person as instead of the priority of public and state interests over individual who is based on the concept of the priority of interests of the person, and their mutual responsibility. The constitutional practice of the majority of the postSoviet states at the present stage has appreciably taken off oppositions of natural - legal and positivistic approaches to human rights on the basis of the constitutional fixing of the fundamental rights and freedoms which includes oppression and violence of the state over the person, asserting its autonomy and the priority of human rights concerning the state [17].
It is possible to allocate the following direction of development of modern constitutionalism. In connection with sharp aggravation of the problem of protection of environment, caused by the global ecological accidents (for example, accident on the Chernobyl atomic power station) which has threatened existence of the mankind, modern constitutions of the majority of the countries during the last years have begun to fix general principles of ecological policy. It has led to "penetration" into the constitutional matter of the great volume of nature protection norms. It testifies to permanent tendencies of the ecological constitutionalism and the constitutional law. Each person faces nature and environment during his life, acting thus in different ways - as a citizen, as a worker or an official, as the citizen of the state or the member of the world community. According to researches of the World Organization of health care, people's health is 80 percent dependent on environment. Therefore activity of the state on its protection, maintenance of ecological safety gains especial value [18].
The majority of modern constitutions fix the duty to protect nature and environment. Thus, the Constitution of the Lithuanian Republic of 1992 fixes, that the state should care about protection of environment, flora and fauna, separate natural objects and districts of special value, should realize supervision for the purpose of careful use, and restoration of natural resources (Article 54). The Constitution of Ukraine proclaims that maintenance of ecological safety and maintenance of ecological equilibrium on the territory of Ukraine, overcoming of consequences of the Chernobyl accident - the accidents of planetary scale, preservation of the people of Ukrainian are the duty of the state (Article 16) [19].
Apparently, maintenance of ecological safety as the right to healthy environment has been reflected in the system of human rights. Modern researches testify, that new global processes require another level of "ecologization of rights" - their connection with no sphere, co-evolutional and ecologic-humanistic interpretation of human society. In this connection the person should not forget about the limits of his ecological environment, inevitable fatal consequences if the limited not renewed resources would be exhausted and process of self-reproduction of biosphere would be disturbed. Therefore, enjoying his rights and various institutes of constitutionally legal regulations for satisfaction of various and all constantly growing needs, the person and mankind should take into account ecological imperatives; correlate his freedom with natural-ecological restrictions. The constitutional volume should reflect harmony of development of the person and the natural environment. The person himself should be interested in it for providing his future. The constitutional right and all human rights and the most vital right - the right to life - should have already been accumulated with programs of strategic biological regulation, stabilization of environment, preservation of natural communities, ecosystems, biosphere in general [20].
Therefore the major direction of the new democratic constitutionalism should become institutionalization at the constitutional level of other forms of live matter which have the same natural rights as people - representatives of the Homo sapiens still prevailing on our planet. In our opinion, in the nearest future it is necessary to develop and adopt the Ecological Constitution of Ukraine.
It is necessary for the young Ukrainian democracy to follow precise state constitutional policy who would take into account not only positive tendencies of development of the new democratic constitutionalism, but the influence on mechanisms of realization of power on the remaining of the postSoviet constitutionalism. And especially during the period of constitutional changes happening now in the state [21]. At this stage the parliament should even establish the certain set of political rules of the constitutional development of the Ukrainian society, for example, as Declaration on the people's sovereignty or in any other political-legal act.
It is necessary to return to the new democratic constitutionalism the principle of social justice, fixing it as one of the fundamental bases of the constitutional system of Ukraine. This important conventional principle is mentioned in the Constitution of Ukraine in Article 95 stipulating the principle of fair and unbiased distribution of public riches among the citizens and territorial units.
It is clear, that it is a complex philosophical-legal category which is treated differently in different historical periods. Nevertheless, ignoring the principle of social justice always results in social indignations and instability in the society.
Among the problems of developing of the new democratic constitutionalism in Ukraine it is necessary to note legal nihilism whose essence is objection of ability of the law to regulate public relations.
Danger of legal nihilism (especially constitutionally-legal nihilism) has deep historical roots in Ukraine and without fast overcoming of it, this lack can get menacing scales for the Ukrainian statehood (for example, the regional status of the Russian language, obstacle of activity of the constitutional justice, the January resignation of the government, the decision of the local court on the General public prosecutor of Ukraine, etc.). It is necessary to raise the low level of legal culture of the population, to restore trust of people to the law. It is necessary to begin with the personal example of observance of the Constitution and laws of Ukraine by the organs of public authority and their officials, in particular, by higher officials.
New democratic constitutionalism and monopolization of constitutional system. One of the key problems of the new democratic constitutionalism, in particular, in Ukraine is municipal reform, first of all, the constitutional reform of local self-management whose purpose is formation of a qualitatively new model of local self-management. In fact real and capable local self-management will allow the state to become the state of self-managing units. In fact, at a level of local self-management in borders of local territorial communities - territorial communities - there can be formed orig
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