Adoption of the constitution: general principles

Abstract

It has been determined that the transition period in Ukraine, as elsewhere, is characterized by the confrontation of two legal orders - the old and the new, the main distinction of which is the attitude to the 1996 Constitution. The central issue of themodern constitutional debate is the issue of gaps in the Constitution, as well as the question of who will fill these gaps, how and in what direction.The authors try to establish the main problems of the procedure for the adoption of the basic law that are relevant today through the prism of a comparative legal analysis of the procedure in foreign countries. It is indicated that the special significance of the Basic Law in the life of society and the state and its supremacy in the legal system raise the problem of using certain special forms (procedures) of its adoption. Adoption of the constitution should be understood as a complex process of deep political and legal significance, a process in which at least the following elements can be accurately identified:a) situations in which the new Constitution is adopted; b) the initiative to adopt the Constitution; c) competent body (constitutional or constituent power); d) methods of acceptance.Summarizing the experience of foreign countries regarding the adoption of the basic law and the introduction of amendments to it, it is noted that although the most common means of direct democracy is a referendum, however, in international practice there are no cases when changes to the basic law were brought directly to the discussion of citizens (constitutional referendum), and its results would automatically acquire higher legal force and would not require additional coordination with the country’s parliament. As an exception, it is possible to consider issues that determine the foundations of the state system,namely: issues of sovereignty, independence, state organization, or neutrality. In foreign countries (first of all, European countries), a preliminary discussion and approval of draft amendments to the constitution by a representative body is practiced, followed by the submission of the text of the draft law to a referendum.