GOVERNMENT AS THE SUPREME EXECUTIVE AUTHORITY: CONSTITUTIONAL AND LEGAL ANALYSIS

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The article presents a scientific analysis of doctrinal approaches to the determination of the government as the highest executive authority identified elements of its constitutional and legal status.

Keywords: government, executive power, executive power, constitutional and legal status, the separation of powers.

 

Relevance of scientific research of the government as supreme body of executive authority is caused by search of optimal model of general government in Ukraine which takes place throughout all period of the state from the time of Ukraine declaration of independence. Taking into account the fact that for the last eleven years Ukraine Constitution acted in three edition. It means that the kind of the republic changed serailly: from presidential-parliament’s to parliament’s-presidential. Such constitutional practice in Ukraine testifies the extreme relevance and strategic necessity to introduct such mechanism of public control at which each of the branches of the government will free execute and obligations entrusted to it. Besides, specified experience is an important element of successful reforming national system’s general government.

Question about the government’s place in the system of executive authorities and the problems of definition of it’s constitutional-legal status were subjects of researches of such domestic and foreign scientists: M. Baglay, M. Beschastnyi, E.Hryhonys, K. Danicheva, I. Dachova, V. Kobrin, O. Krasnohor, M. Lapin, Z. Markova, R. Martyniuk, M. Oslavskiy, M. Rozumnyj, A. Syrota,         Yu. Tikhomirov, V. Shapoval and others.

According to the theory of the state and rights general government is one of the main functions of the state, realisation of which requires presence of organised system’s units of public authority with clearly stated and legislatively determined constitutional-legal status. It is necessary to take into account that in the theory of the state and rights public authority is splitted into three main branches: legislature (authority to pass laws), executive authority (authority to realise and to organise observance of laws) and judicial authority (authority to judge and to penalise defiances of the law). In legal literature it is underlined that the founders of splitting authorities into branches theory were John Lokk and Charles Louis de Montesk’e. The subject of our research is executive authority, which in the most of modern states accounts the system of actuators, which is managed by the government.

In considering context it is necessary to quote the definition of executive authority that is offered by domestic scientist I. Dahova: «executive authority is one of the branches of public authority, the main assignment of which is the organisation of performance of laws and other legal acts, realisation of inside and foreign policy, protection of right and freedom of the person and citizen, is implemented through system constructed on the principle of vertical subordination specially developed and units allocated by the appropriate competence» [2, p. 26]. Other authoritative Ukrainian scientist M. Shapoval defines an executive authority as «the system of the units of public authority carrying out powerful-political and powerful-administrative functions» [6, p. 179].

Specified definitions of executive authority allow to create a conclusion that executive authority being the system of units, necessarily assumes presence of supreme organization which should supply work of other units in this authority branch. Usually such unit is government. In the theory of constitutional law concept «government» is understood as executive authority (mainly it is supreme organization of executive authority) headed either by the head of state or determined official (premier, Head of the Government, chancellor, the chairman of the council or cabinet etc.). However in some countries concept «government» means a higher and common level of general government. For example, English word «government» means all machinery of government and includes both executive, legislative and judicial authority. Respectively, government is all this state-powerful mechanism, based on treatment of this concept by American attorneys. From institutional point of view the government is «joint unit of universal competence, implements an executive and administrative authority in the country» [1, p. 283].

We will note that under executive authority «state organisation is understood as a whole independent structural formation of machinery of state and presents the people organised collective which, acting within competence fixed for it on behalf of state with a view of the decision of tasks facing by the state and society implements functions of executive authority and is allocated for it by state-powerful authorities» [4, p. 149]. Specified treatment concerns both government, and any other executive authority, including local level. As supreme body of executive authority government implements activity directed to perform the laws and operating control by state affairs in various domains of social attitudes. Important government task is supplying of order in the society and protection of citizens rights. In the conditions of democratic state the government should express common interests instead of private, corporate, party or regional.

To government as supreme body of executive authority are entrusted determined state-managerial functions. On this topic Y. Tyhomyrov is giving a definition of executive authorities as the measure of due behaviour of units, their independence in performance of tasks and functions, as expression of particular kind of the decisions and other managerial actions and also offers following classification of functions and executive authorities :

– Managing, when authority «supervises», «directs», «decides», «defines», «asserts»;

– Regulating, where authotity «adjusts», «installs», «supplies»;

– Calculated-analytical, at which authorities «studies» , «develops», «engages in preparation», «considers», «promotes»;

– Organisational –  authorities «will organise», «co-ordinates», «agrees», «instructs», «promotes»;

– Controlling, when authorities «verifies», «hears», «controls» [8, p. 90].

Specified classification of executive authority functions testifies of enough broad audience of functionalities of the government, performance of which accounts the essence of public control. Researchers rightly point that in modern theory of general government became customary  understanding of functions as «leading directions in the executive authorities activity, in which purpose-oriented load of the appropriate branch of public authority and is expressed with which straight volume and the content of state-powerful authorities afforded to the executive authorities» [3, p. 126]. Specified information allows to formulate conclusion that the concept of «authority» and «function» of government should be not identified because of the second concept, that on its content is broader; and authority, in turn, it is legislatively installed by the tools of realisation of functions. In such a manner, functional assignment of the government can be revealed through particular constitutional authorities of such unit that created the element of his constitutional-legal status.

It is worth to note as well that the place of the government in the units system of public authority depends on the form of the board and the model of party system, which developed in particular state and, primarily, depends on his mutual relations:

– With parliament (in states with parliamentary form of the government , as well as in mixed republics the government is formed with participation of the parliament and responsible before it, in presidential republics the government does not bear responsibility before parliament).

– With head of state (in states with parliamentary form of the board , as well as in mixed republics the head of state realises his authorities with the aid of government; in presidential republics government is accountable and subordinated by president).

– With the unit of constitutional jurisdiction (i.e. in what amount government acts should be controlled by constitution, besides exactly the unit of constitutional jurisdiction in disputable cases solves the problem of government competence).

– With political parties (the government in parliamentary republics and monarchies strongly depends on mutual relations with parties presented in the parliament).

Specified elements of functional relations with government reflects first of all quality and potency of system which developed in the state containment and counterweights, indeed as experience of young democracies shows, «non-observance of the principle of division of authorities, absence of effective containment and counterweights system in attitudes of different branches the authorities were and will be factors of contradictions and crises of political authority» [7, p. 64]. And Ukraine is not exception in this context.

We offer to stay further on the question of the structure of constitutional-legal status of the government, because specified question allows to fully reflect place and the role of supreme body of executive authority in the system of general government. Besides, the definition of elements of such status will promote ordering of under study information.

Specialists in the area of Constitutional and Administrative Law agree that category «constitutional-legal status» allows to establish the place of one or another unit in the system of division authorities to show all many-sided nature of interrelations between the units of public authority to allocate the key legal significant specifications of such unit. Therefore, definitely, separate illumination is required both by the category of constitutional-legal status and her making elements, not only to fill the content of constitutional-legal status, but also allow to reveal all parties of functioning of such powerful institution as government.

Domestic scientist A. Syrota, in turn, emphasises «constitutional-legal status» by the determination:  «in spite of various approaches to given definition, distinction of views at concept of this legal phenomenon, all authors are concur that legal status of any subject of legal relations is a reflection and confirming in right of his real, actual status in the system of social attitudes» [7 p. 109]. Therefore, investigating constitutional-legal status any subject of social attitudes (in our case of the government), should be analysed primarily of the norm of organic law of the state, in which legal status of the government, as well as the norms of those legal acts is fixed and is defined which in their content will specify situations of the constitution.

Scientists note as well, that category «constitutional-legal status of the government» serves by the way of generalising and ordering rules of law and allows to generate design (model) including rules of law and practice of their realisation. М. Markov notes that «constitutional status is defined by standard specifications fixed in the Constitution for the subjects of legal relations of one sort (kind) this status is the common. Constitutional-legal status is broader on content than constitutional and includes specifications besides Constitution in the norms of the other sources of constitutional law» [5, p. 5]. So, constitutional-legal status of the government first of all is defined by the norms of Organic law and other laws of the state providing situations that are directly concerned to the government activity. Practice shows that usually in the state passes special constitutional law which defines the key making government activities (for example the Law of Ukraine «On the Cabinet of Ministers of Ukraine», Republic Law Poland «Of Ministerial Council» and other similar), and in other legal acts the concrete definition of government activity is implemented in the appropriate domains of general government.

While analysing constitutional-legal status of the government in the state it is possible to allocate the main making elements of this status, because considering concept is enough wide and requires a proper scientific ordering. Taking into account different aspects in scientific literature under study problems, we offer to attribute to the elements of constitutional-legal status of the government following components:

– Legislation that regulates government activity;

– Order and the principles of the government’s formation;

– Composition and the structure of the government;

– Governmental authorities (its managerial,  standard-setting, supervision competence);

– Interrelations of the government with the other supreme bodies of the authority (in the context with the system containment and counterweights).

From contained it is necessary to conclude that scientifically substantiated specification of offered components of constitutional-legal status will provide a normal and correct understanding about the place of the government in the system of public state control. It is worth to note as well that many scientists justify necessity of introduction to the elements of constitutional-legal status of the government for scientific-doctrinal justification of it’s activity. Such thesis is presented as acceptable for those states, in which constitutional government reforming takes place. At the same time, it is necessary to understand that considering concept includes element «legal», in our opinion testified the primeness of legislative definition, instead of doctrinal.

 

References:

1. Beschastnyj V. Constitutional (state) law of foreign countries / V. Beschastnyj. – K: Znannya, 2007. – 467 p.

2. Dahova I. The concept of executive power and its place in the state mechanism Ukraine (constitutional aspect) / I. Dahova. // Ukrainian Law. – 2002. – №12. – p. 23–27.

3. Danicheva K. Functions of the Cabinet of Ministers of Ukraine as leading direction of its activities / K. Danicheva. // Law forum. – 2014. – №4.

4. Lapina M. Administrative law: the textbook / M. Lapina. – M, 2009. – 149 p. – (Consultant Plus).

5. Markova Z. The content of the constitutional and legal status of the Prime Minister of Ukraine / Z. Markova. // Journal of the Academy of Advocacy of Ukraine. – 2011. – №12. – p. 1–9.

6. Shapoval V. The constitutional law of foreign countries / V. Shapoval. – K: ArtEk, 1997. – 262 p.

7. Syrota A. Some problems of legal status of government / A. Syrota. // Theoretical and practical problems of the rule of law in Ukraine: materials and abstracts of conference speech. – 1995. – №2. – p. 108–110.

8. Tyhomyrov Yu. Executive power: its strength and weakness / Yu. Tyhomyrov. – M, 1996. – 161 p. – (Formation of the Russian political system).

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