The article researches the phenomenon of constituent power as a theoretical concept and the practice of its implementation in Ukraine. Constituent power is associated with the process of adopting a constitution and making amendments to it. A distinction is made between primary and institutional constituent powers. The constituent nature of the Constitution of Ukraine in the interpretation of the Constitutional Court of Ukraine is analyzed. The reasons why the Law “On an All-Ukrainian Referendum” was held invalid with regard to the constituent power of the people is considered. There is an inconsistency in the primary and institutional constituent powers’ interpretation of amendments to the Constitution of Ukraine. The constitutional reform of 2004, the interference with this reform by the Constitutional Court of Ukraine in 2010 and its return by the parliament in 2014 are examined from the standpoint of the constituent power concept. It is concluded that a new constitutional reform, which would provide a clean slate, could be an acceptable solution in Ukraine. In the future, the text of the reformed Constitution should provide for clear mechanisms for amending the Constitution of Ukraine and the adoption of a new Constitution, which would necessarily include procedures for popular legitimacy.
The article considers the phenomenon of unchanging provisions of the constitution, their evolution, different classifications. Immutable provisions are considered narrowly – as provisions that are not subject to any changes, as well as criteria (principles), which the changes made should notcontradict. Synonymous concepts denoting immutability are considered – absolute entrenchment, the clause of eternity, stone provisions. The idea of supra-constitutionality, however, is seen as a different phenomenon from the unchanging provisions of the constitution. It is claimed that thematerial (substantive, substantive) requirements for change were not common from the beginning (although the situation has changed quite a few centuries). As practice shows, immutability can be not only formally established in a positive constitutional text. Existing examples lead us to thinkabout the important role of judges who interpret a positive constitutional text. In this case, the constituent power speaks not only through the positive text of the constitution, but also through the judges (for the Kelzen model of constitutional control – the judges of the constitutional court).The unchanging provisions themselves can be changed, as evidenced by relevant examples from practice (albeit isolated). In addition, history knows examples of departure from the positively enshrined immutable provisions (in the case of a rupture of constitutional continuity). Even if theprovisions remain unchanged, there may be no specific jurisdiction to monitor compliance. The absence of explicit immutability does not mean that the practice has not formed implicit criteria of immutability. However, even combined explicit and implicit immutability can still not claimuniversalism in constitutional law.
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