UKRAINIAN STATE and LAW at the TURN of the 21St CENTURY

UKRAINIAN STATE AND LAW AT THE TURN OF THE 21st CENTURY V. TATSIY Doctor of Legal Sciences, Professor, Member of the National Academy of Sciences of Ukraine, Rector of the National University of the Yaroslav Mudriy Law Academy of Ukraine, President of the Academy of Legal Sciences of Ukraine яяяяяявшяшяжшж kraine gained its independence legal one, since it is related to the state's and formed as a state amid exac- accession to a number of necessary inter- Uerbation of the global problems national treaties and agreements, the of the modern age. In the early 1970s, the provisions of which would need to be world entered the phase of a systematic implemented within the state. crisis on the very grounds of the exacer- The legal uncertainty of its territory bation of global problems: food crisis, the remains an extraordinary problem for problem of global ocean use and the use Ukraine. Ukraine is one of the few coun- of substantial territorial areas, unprece- ties with partially non delimitated fron- dented flows of migration, environmen- tiers. The legal uncertainty of the border tal and energy problems, etc. The year also means the legal uncertainty of sub- 2009 was remarkable in terms of the stantial territorial areas, such as the largest economic crisis since the end of Azov Sea and the Kerch Strait. The legal World War II, which led to a number of uncertainty and transparency of thou- negative phenomena in public and social sands of kilometres along the Russian- life — a significant drop in industrial pro- Ukrainian border in the North East and duction, an increase in inflation, unem- East contributes to Ukraine's transfor- ployment and crime rates, etc. Without mation into a transit state for illegal resolving state-legal problems, it is migration flows to Central and Western doubtful whether it is possible to expect Europe, according to the assessments of the successful resolution of other social- influential international organizations. economic tasks. Therefore, this is not an abstract chal- Ukraine is faced with the priority lenge for Ukraine and the State must task to find and occupy its place in the respond adequately. modern world. It should be noted that Of the acutest problems that have the issue of foreign policy priorities is arisen for the State of Ukraine is the not merely a political issue, but also a problem of its place in the geopolitical © V. Tatsiy, 2011 234 • LAW OF UKRAINE • 2011 • Ns 3~4 • UKRAINIAN STATE AND LAW AT THE TURN OF THE 21" CENTURY distribution of roles in Eurasia. Ukraine lators who, during the adoption of a new is practically the only state in Europe Constitution in 1999, suggested enhanc- that is geographically located close to a ing the parliament's role by strengthen- number of politically unstable regimes — ing its control and foreign policy func- in Transdnistria and Abkhazia. Ukraine's tions. active participation in separatist conflict The constitutional process initiated resolution processes should not only be in Ukraine has led to the inclusion of a construed as the interest of world number of other urgent issues of state democracies in liquidating the roots of formation on the agenda. The experience instability, but also as its own state inter- of western constitutionalism and nation- ests. A state's ability to lead in the exe- al state formation practice demonstrate cution of such functions demonstrates the need to take into consideration two such state's capacity to guarantee con- such important fundamentals as profes- tinued stability, at least on its own bor- sionalism and legitimacy, as well as to ders. consolidate the above in the mechanism The world long discussed such an of developing and adopting amendments acute problem as the crisis of the parlia- to the Constitution of Ukraine currently mentary system, which has become char- in force or to a new constitution of acteristic for the European system of Ukraine. The first fundamental should government at just the time when politi- be ensured through the development and cians and scholars perceived the insuffi- preliminary approval of a new constitu- cient capacity of the collegiate represen- tion by experts and/or members of par- tative institution to efficiently resolve liament (members of the constituent outstanding issues related to state assembly). A leading role in this process administration. Hence, another phenom- should be assigned to legal science and enon typical for the modern European key academic institutions of Ukraine. constitutionalism — delegated law-mak- With regard to the second fundamental, ing. any amendments to the current or new One of the well-recognized methods Constitution of Ukraine must be of resolving the problem under contem- approved by a national public referen- porary conditions is so-called «rational- dum. ized parliamentarism», when a govern- One of the significant issues at the ment not only adopts desisions instead of current stage is the range of problems parliament, but also determines the pertaining to the order of state institu- agenda for the latter (entrenched for the tions, first and foremost of the national first time in the Constitution of France representative institution — the in 1958). However, does such model Verkhovna Rada of Ukraine. One should resolve all the problems affecting the distinguish between both the positive effectiveness of the parliament? Probab- potential and certain threats to a young ly not. French scholars have repeatedly democracy in the parliamentary system. complained that in the pursuit to Therefore, the crisis of the national par- improve the state's administrative effi- liamentary system lies caused not in the ciency, parliament's leading role in the fallibility of the idea of the parliamentary state mechanism as a national represen- system, but in the inadequacy of tative institution and its authority in approaches to the structure of the parlia- society have gradually diminished. A ment itself and the means for its forma- solution was proposed by Finnish legis- tion, as well as in the weakness and lack • LAW OF UKRAINE • 2011 • № 3~4 •. .235 V. Tat si у of development in the party system. In the status of local self-governance. The our opinion, a strategic direction for constitutional basis of local self-gover- improving the national parliamentary nance has started to lag behind the actu- system could be a movement towards a al state of this subsystem of public gov- bicameralism, which, on one hand, would ernment, impeding its further develop- ensure the proper representation of ment and arousing the completely justi- Ukraine's regional interests in the fied discontent of local communities. Verkhovna Rada of Ukraine, and, on the Thus, the reform of the existing system other, the specialization of chambers in of local self-governance in Ukraine parliamentary activities and increased appears to be an entirely natural and law-making professionalism. objectively determined component of Establishing the foundation for an constitutional reform. effective mechanism of constitutional The reforms being introduced, envis- and legal responsibility is a significant age the further strengthening of local issue that should be addressed in the self-government and enhancement of its process of constitutional reform. Ano- independence in the solution of a much ther is the issue of the proper interaction broader range of issues and the fullest of various branches of power, which possible use of its democratic potential, should ensure the principle of cohesion to ensure the rights, freedoms and legiti- in the exercise of government authority. mate interests of local community mem- In this context, attention should be paid bers. No less important direction of to the issue of assigning a number of con- municipal reform should also be the trol functions to a specific branch of restoration of the regional (interim) power. First and foremost, these are the level of local self-government, the forma- Prosecutor's Office, the Authorized tion of executive bodies of oblast and Human Rights Representative of the regional councils, and assignment of rel- Verkhovna Rada of Ukraine and the evant powers and necessary material- Chamber of Accounting. We believe that financial resources to them, as required the first step should be the consolidation by the European Charter of Local Self- of issues pertaining to the operation of Government. these institutions in one chapter of the Another problem that has emerged in Constitution. the 21st century is that of the preserva- Local self-governance is a relatively tion of the national identity and sover- new object of constitutional regulation. eignty of the people. First and foremost, Constitutions adopted after World War European integration processes pose a II (so-called third generation constitu- threat to people's sovereignty. Currently, tions) must contain chapters devoted to it appears that on one side of the scale is the fundamentals of local self-govern- people's sovereignty, while on the other - ment. The Constitution of Ukraine of an association of states under the banner 1996 is not an exception. However, at of one federal (or confederate) state. A the time of its adoption, essential issues reliable safety device against the dissolu- related to the organization and activities tion of people's sovereignty in global of municipal authorities in Ukraine integration processes should be the remained unresolved. Since the adoption determination on the constitutional of the Constitution of Ukraine that is level and in international treaties and currently in force, a number of events agreements, of an explicit list of issues have occurred, significantly changing with regard to which powers are granted 236 • LAW OF UKRAINE • 2011 • № 3~4 • UKRAINIAN STATE AND LAW AT THE TURN OF THE 21s' CENTURY to national bodies, along with a justifica- new economic system and an exhaustive tion for the need to specifically grant set of measures for the legal regulation of such scope of competence, ensuring the innovation relations in Ukraine.

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