Українською | In English
Viche 2011 №21

№21, 2011

Power of the Ukrainian people and ways of ensuring the constitutionality of its decisions

«Power of the Ukrainian people» is a category through which the Constitutional Court of Ukraine in its decision from the 5th of October 2005 (the case about power performance by people) [4] interpreted the principle of the national sovereignty which is stated in paragraph 2 of Article 5 of the Constitution of Ukraine. However, the question of the legal content of the category of "power of the Ukrainian people," the mechanism, methods, ways and forms of "performance" by people of this power remained neglected by the single body of the constitutional jurisdiction in Ukraine.

From our scientific research you can make the following conclusions:

1. The Ukrainian people in contrast to the state bodies are not limited by the Constitution of Ukraine and shall not be limited by the laws of Ukraine by fixing clearly defined and exhaustive list of human rights. The Ukrainian people are in charge of taking into their proceedings any question from the area of governance of state (public) affairs (except those fixed in Article 74 of the Constitution of Ukraine) and to make the correspondent decision that is mandatory to be implemented on the territory of Ukraine. However, in order to eliminate certain "gap" Article 69 of the Constitution should be supplemented by the second part with the following content: "The results of the national vote are mandatory to be performed on the territory of Ukraine."

2. Laws of Ukraine adopted by the Ukrainian people by conducting national "legislative" referendum are final and binding on the territory of Ukraine, but at the request of the entities identified in Part 2 of Article 150 of the Constitution of Ukraine may be considered by the Constitutional Court of Ukraine regarding their constitutionality.

3. The decision accepted by the Ukrainian people in the way of conducting the national "constituent" referendum regarding approval of the new edition of the Constitution or its amendments shall not be the subject of the following constitutional control. However, a preliminary constitutional control of the decisions’ drafts, which are submitted to the national "constituent" referendum for the purpose of its compliance verification with Article 157 of the Constitution of Ukraine of 1996 would be reasonable and logical.

4. Current issues raised in this article are only the beginning of the great scientific debate regarding the category "power of the Ukrainian people," kinds of this power, forms and mechanisms of its implementation, methods to ensure the constitutionality, decisions adopted by the Ukrainian people etc., which should lead to the formation of the full doctrine of the national sovereignty in Ukraine.

Yuriy MIROSHNYCHENKO