Rulemaking of the central executive authorities in Ukraine, Kazakhstan, and Armenia: a comparative legal aspect - Адвокатське об'єднання "Barristers"

UDC 342.518

Shevchuk Aleksei Anatoliievich

Attorney, II-year postgraduate student of

V.M. Koretsky Institute of State and Law of the

National Academy of Sciences of Ukraine

Rulemaking of the central executive authorities in Ukraine, Kazakhstan, and Armenia: a comparative legal aspect

In the article, the author considers the issue of the rulemaking activities of the central executive authorities of Ukraine, Kazakhstan, and Armenia. The author establishes the main features of the activities of the executive bodies in these countries. The legislative frameworks of activities of the central executive bodies are determined. A number of conclusions and generalizations, both of theoretical and practical nature, have been implemented.

Keywords: norm of law, rulemaking, executive power, governance.

The formation of independent national states after the collapse of the USSR has a number of common features. Practically all new independent states focused on creation of democratic legal systems based on the division of the state power into three independent branches – legislative, executive, and judicial.

For a democratic society, it is the independence of each of the branches of power that is of paramount importance, because, on the one hand, it provides a check-and-balance system in the state mechanism, and on the other hand, ensures an appropriate level of legal regulation in the legal system.

Traditionally, the executive power is the second in the list of branches of power, whose role is to ensure compliance with the norms of current legislation, first of all, in terms of implementation of civil rights and freedoms. In the process of implementation of this function, the executive authorities carry out rulemaking activity, that is, they create, amend, or unmake the legal norms.

Rulemaking is a legal form of state activity with the participation of civil society (in cases provided by law), associated with establishment (authorization), amendment, cancellation of legal norms. Rulemaking is closely related to lawmaking. The latter phenomenon, however, is a narrower concept, since it concerns the adoption of only legislative acts [1, p. 21, 22].

In its turn, rulemaking covers the sphere of creation of all the varieties of legal norms. In this case, the norms of the central executive bodies are of exceptional importance; after all, by establishing the procedure for implementing the law, they ensure law-abiding behavior of citizens, as well as officials of state and local government bodies.

Many norms that are important for ensuring proper functioning of the society are traditionally governed by acts of central executive bodies. These are, in particular, fire and technogenic safety standards, environmental standards and regulations, procedure for maintaining infrastructure facilities, procedure for legalization of legal entities, registration of intellectual property objects, rules for trade and restaurant activities, licensing certain types of business activities, etc.

Certainly, such by-law legal regulation, being a public activity, cannot go beyond the framework of constitutional legal regulation. Therefore, according to Sect. 2, 3 of Art. 8 of the Constitution of Ukraine, it has the highest legal force. Laws and other legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it. The norms of the Constitution of Ukraine are the norms of direct action. Appeal to the court to protect the constitutional rights and freedoms of people and citizens directly on the basis of the Constitution of Ukraine is guaranteed [2].

Article 5 of the Constitution of the Republic of Armenia states that the Constitution has the highest legal force. Laws must comply with constitutional laws, and sub-legal regulatory acts must comply with the constitutional laws and laws. In case of a contradiction between the norms of international treaties ratified by the Republic of Armenia and the laws of the Republic of Armenia, the norms of international treaties are applied [3].

Parts 1-3 of Art. 4 of the Constitution of the Republic of Kazakhstan establish that the applicable law in the Republic of Kazakhstan includes the norms of the Constitution, laws corresponding to it, other regulatory legal acts, international treaties and other obligations of the Republic, as well as regulatory decisions of the Constitutional Council and the Supreme Court of the Republic. The Constitution has the highest legal force and direct effect throughout the territory of the Republic. International treaties ratified by the Republic take precedence over its laws. The procedure and conditions for the operation within the territory of the Republic of Kazakhstan of international treaties, Kazakhstan being a party thereof, are determined by the legislation of the Republic [4].

Thus, Armenian, Ukrainian, and Kazakh constitutional legislation place by-laws (including acts of executive bodies) in the lower category of regulatory acts. However, such a place of legal norms is connected exclusively with the legal force of this regulatory act, and not with their meaning.

On the contrary, by-laws and regulations that are closer to the real legal relations determine the dynamics of their development and allow us to respond more effectively to the challenges posed by the existing reality.

Thus, Sect. 8, 9 of Part 1 of Art. 44 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine” establish that the Minister of Ukraine issues binding orders for matters relating to the sphere of activity of the Ministry and central executive authorities, whose activities are directed and coordinated by them, and also prepares questions for consideration by the Cabinet of Ministers of Ukraine [5].

In its turn, Part 4 of Art. 146 of the Constitution of Armenia specifies that the powers of the Government are established by the Constitution and the laws. The competence of the Government includes all matters relating to the executive branch, which are not assigned to other bodies of state administration or local self-government authorities.

The Constitutional Law of the Republic of Kazakhstan as of December 18, 1995 No. 2688 “On the Government of the Republic of Kazakhstan” in Art. 22 establishes the authority of the ministry. Thus, the Ministry is the central executive body of the Republic, which manages the relevant branch (sphere) of state administration, and also, within the limits stipulated by the legislation, the inter-branch coordination. The Ministry carries out strategic, regulatory, implementation, control, and supervisory functions within its competence. The Ministry is formed, reorganized, and dissolved by the President of the Republic on the proposal of the Prime Minister of the Republic.

The Ministry is entitled, within the limits of its competence, to independently decide on the matters not related to the competence of the Government of the Republic. The structure of the Ministry is approved by the executive secretary of the Ministry. Structural units of the Ministry include offices, departments, and administrations. Departments and administrations of the Ministry altogether form the office of the Ministry. The collegium of the Ministry is a consultative and advisory body under the Minister. The numerical and personal composition of the collegium is approved by the Minister from among the heads of the structural units of the Ministry. Decisions made by the Ministry are issued by the orders of the Minister.

Along with the Ministries, the central executive bodies in the Republic of Kazakhstan are the offices of the central executive body. Part 3 of Art. 23 of the abovementioned Law establishes that the form of the act issued by the office is an order of the head of the department. Cancellation or suspension in whole or in part of the acts of the office is carried out by the head of the central executive body, whose structure includes the office [6].

Summarizing the abovementioned, the following conclusions shall be drawn attention to. In Ukraine, the Republic of Armenia, and the Republic of Kazakhstan, the rulemaking of the executive bodies has a number of common features. Firstly, the rulemaking of these bodies is an element of the state regulation mechanism, it has a sub-legal nature, and in the process of its implementation, the formation of generally binding formal regulations and rules takes place;

Rulemaking is a means of organization and implementation of public administration, however, the process of rulemaking itself is regulated by legal norms, which are based on the norms of the constitution (in some cases, also on the constitutional laws).

From the point of view of the internal content, the rulemaking of the central bodies of executive power is a purposeful activity, which occurs in certain time intervals, contains internal elements – the stages of the rulemaking process, and includes a set of specific actions and procedures.

At the same time, it should be borne in mind that the scope of the rulemaking competence of these bodies also includes the authority to participate in the rulemaking process of the other government bodies, in particular, to develop the draft laws, the acts of the head of the state, and the government as a whole, as well as their submission for approval to the relevant body in the manner prescribed by law.

References

V. І. Rindiuk Rulemaking: instructional self-study guide. K. NEU, 2009, 162 p.
The Constitution of Ukraine, adopted by the Verkhovna Rada of Ukraine on June 28, 1996 (amended and supplemented): https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1 % 80 / print;
The Constitution of the Republic of Armenia, adopted on December 6, 2015: http://www.president.am/ru/constitution-2015/;
The Constitution of the Republic of Kazakhstan, adopted at a republican referendum on August 30, 1995 (amended and supplemented):

https://online.zakon.kz/Document/?doc_id=1005029#pos=5;-232.

Law of Ukraine “On the Cabinet of Ministers of Ukraine” dated February 27, 2014 No. 794-VII: https://zakon.rada.gov.ua/laws/show/794-18#n361
Constitutional Law of the Republic of Kazakhstan dated December 18, 1995 No. 2688 “On the Government of the Republic of Kazakhstan”:

https://online.zakon.kz/Document/?doc_id=1003973#pos=264;-44