On the question of “inherent” powers of the President of Ukraine

Abstrakt

The purpose of the article is an attempt to research the origin and content of the doctrine of “inherent” powers of the head of state, as well as to clarify the expediency of its implementation in Ukrainian realities. The relevance of this research direction is due to the fact that during the years of Ukraine’s independence, most heads of the state tried to increase their powers not only by amending the Constitution, but also by applying the aforementioned doctrine in practice.

Today, the Constitutional Court of Ukraine takes a restrained position on the issue of implementing “inherent” powers. Thus, the Court has repeatedly confirmed its legal position that the Fundamental Law does not grant the Verkhovna Rada of Ukraine the right to determine in its acts the powers of the parliament and the head of state beyond those established by constitutional norms. However, such legal positions did not receive universal support among scientists and have already become the subject of discussions.

Although analyzing the Constitutional Court’s decisions passed in recent years leads to the conclusion that “inherent” powers have no place in constitutional jurisprudence, some decisions of the constitutional jurisdiction body in the past decades still leave room for the implementation of such powers. Thus, the analyzed decisions made it possible to reach the conclusion that the search for the “inherent” powers of the President should be carried out in areas included in the scope (responsibility) of the head of the Ukrainian state — namely, foreign policy activities, national security and defense. However, it should be noted that the further development of these ideas in practice is currently impossible without a review of the existing constitutional jurisprudence.

Sharing the opinion on the need to establish “inherent” powers of the President, we consider it necessary to emphasize the necessity for their strict regulation and the presence of clear limits of their application. Such limits seem extremely important, since under other conditions there is a risk of the President getting the impression that arbitrary development of this doctrine is possible. Therefore, the establishment of “inherent” powers in the national doctrine for the head of state should be accompanied by effective constitutional control, and the purpose of such powers is to take effective and urgent measures necessary for the performance of basic duties. After all, in conditions when state institutions are weak, the risk of usurpation of power is no less a threat than the aggressive policy of Ukraine’s eastern neighbor. Under such conditions, flirting with the doctrine of “inherent” powers can easily turn from the saving straw of the nation into its enslaver.

With that in mind, the article analyzes the viewpoints already available in the scientific doctrine regarding the limits of application of the doctrine of “inherent” powers and makes proposals for their further implementation and improvement, in particular through the activities of the body of constitutional justice.