COMPETENCE OF EXECUTIVE AUTHORITIES: THEORETICAL PROBLEMS IN THE CONTEXT OF THE SEPARATION OF POWERS

Abstract

The article examines the basic theoretical and constitutional issues of the competence of the Cabinet of Ministers of Ukraine and executive authorities. The relevance of the topic of the article is conditioned by the fundamental changes in Ukraine’s foreign and domestic policy, which is oriented toward integration into the European and global community, and this is logically consistent with the objectives of legal reform. The scientific significance of the article lies in the fact that it is devoted to clarifying the problems of delineating law-making powers between the legislative and executive branches of government from the perspective of European standards, which presupposes the development of theoretical and methodological approaches that must be adequate to the general aim—ensuring the scientific basis for harmonising the legislation of Ukraine with the acquis of the European Union and the legal standards of the Council of Europe. Scientifically valuable is the approach that includes within the subject matter of the research issues relating to the general and specific theoretical levels. Following this paradigm, the article consistently examines the matters of the competence of the Cabinet of Ministers of Ukraine and executive authorities. The theoretical basis of the research is formed by the concepts of the rule of law and separation of powers. In this way, scientific consistency and theoretical integrity of the research are ensured, allowing the issues of administrative-legal regulation to be studied systemically and in connection with practical problems in specific spheres of public administration. It should be noted that the scientific novelty of the philosophical-theoretical approach in investigating the competence of executive authorities within the framework of the principles of the rule of law and separation of powers makes it possible to reveal connections with the fundamental principles of the Constitution of Ukraine. The practical significance of the article is presented in the approaches and proposals formulated with regard to analysing the legislative definition of the scope of law-making powers of executive authorities. The theoretical and legislative problems highlighted, as well as the proposals for their legal resolution, must also be considered from the standpoint of the effectiveness of the model of public administration, which enables one to see and theoretically coordinate the legal requirements for harmonising the legislation of Ukraine with the *acquis* of the European Union and the legal standards of the Council of Europe with the issues of public management and economic reform. From these positions, the article appears to be an important and scientifically valuable step, since it contributes its share of ideas and approaches to solving scientific and practical problems concerning the implementation of constitutional and administrative reforms in Ukraine and its integration into the European space. The following significant conclusions may be distinguished: a) determining the limits of the law-making powers of the executive branch within the framework of the principles of the rule of law and separation of powers must be based on the general principle of excluding from the competence of the executive branch the issuance of normative-legal acts that interfere in the sphere of relations between private subjects and between private subjects and public authorities; these relations are the direct subject of legislative regulation; b) gaps, fragmentation, excessive abstractness of norms, and other deficiencies—well- known problems of the current legislation of Ukraine—relate to the sphere of the quality of the legislative activity of the Verkhovna Rada of Ukraine and must not be resolved by means of “managerial law-making” by the Cabinet of Ministers of Ukraine and other executive authorities; c) the law-making powers of executive authorities include exclusively those that are subsidiary, that is, inseparable from the functional capacities of management in specific spheres and sectors and from the internal organisational structure of the executive authorities themselves; d) executive authorities may be vested, in cases of urgent necessity and under specific circumstances, with broader law-making powers, but in every such case this requires a separate decision of the Verkhovna Rada of Ukraine on delegating the relevant powers regarding the adoption of a specific normative-legal act.