Participation of the Constitutional Court of Ukraine in the Novelization of the Constitution of Ukraine (an Attempt at a Philosophical Approach)

Abstract

Topicality. Constitutional reality has a direct impact on guaranteeing and ensuring the rights and freedoms of the individual, the functioning of the state and society. Its change in an extra-constitutional manner (exit of the state authority beyond the limits of the constitutionally defined powers, application of an unconstitutional law or application of the law in a way that does not correspond to the Constitution of Ukraine, etc.) indicates the existence of a problem that needs to be solved, in particular, by means of constitutional jurisdiction. According to its constitutional status, the Constitutional Court of Ukraine is a body that is called to prevent, warn and solve relevant problems, in the process and as a result of which, as a rule, the content of the relevant constitutional regulation, norms and principles, «spirit» of the Basic Law of Ukraine is clarified and formulated , thus their novelisation takes place. At the same time, carrying out such an amendment and creating a law, this body must act within the limits of constitutionally defined powers, so as not to become the subject of introducing constitutional changes in an unconstitutional way, taking over the role of legislative or constituent power. In addition, in order to be accepted by society and legitimized, the novelisation of the Constitution of Ukraine by the Constitutional Court of Ukraine must be not only legally justified, but also explained in detail, since even the best decisions of any government body, if they are not understood and not accepted by society, can turn into a fiction or, even cause a constitutional conflict. The purpose of the article is a comprehensive study of the participation of the Constitutional Court of Ukraine in the novelization of the Constitution of Ukraine. Methodology. The research uses a complex of general scientific and special methods of cognition, in particular, hermeneutic, formal and logical, system and functional. Scientific novelty. The article examines the issue of the participation of the Constitutional Court of Ukraine in the novelization of the Constitution of Ukraine, outlines the limits beyond which the Court cannot go, and defines safeguards against usurpation of powers. Results of the research. The forms of participation of the Constitutional Court in the amendment of the Basic Law of Ukraine with specific examples of such amendment and the corresponding consequences are disclosed. It is warned against the danger of transforming the Constitutional Court from a body of constitutional jurisdiction into one that takes over the role of legislative or constituent power; possible safeguards against usurpation of the right by the body of constitutional jurisdiction are named; the importance of legal substantiation and, if necessary, explanation of the novelization of the Basic Law of Ukraine carried out by the Court with the aim of their legitimization by society and legitimization by other public authorities is emphasized. Practical significance. The remarks formulated in the article regarding the danger of transforming the Court from the guardian of the Basic Law of Ukraine into a body with unlimited power to create law, replacing the legislative and constituent power, or the creation of such a negative perception of the body of constitutional jurisdiction in society, are aimed at changing and improving the legal practice of the Court. In particular, proposals were provided regarding the need to substantiate and explain the facts of the Court’s amendment of constitutional prescriptions and norms and principles.

Keywords: novelization; constitutional jurisdiction; constitutional reality; constitutional culture; legalization; legitimization; prerogative powers; constitutional control.