POSITIVE AND NEGATIVE OBLIGATIONS OF SUBJECTS OF LAWMAKING: PROBLEMS OF ENSURING CONSTITUTIONALITY (BASED ON THE STUDY OF LEGISLATIVE OMISSION)

Abstract

It is substantiated that the Constitution of Ukraine imposes on the subjects of law-making activity a range of positive and negative obligations, the non-fulfillment or improper fulfillment of which leads to situations of complete or partial lack of regulation of relevant groups of social relations, or to their regulation in a manner that clearly contradicts constitutional and legal norms. This serves as grounds for the emergence in legal reality of the phenomenon known as legislative omission. It has been revealed that the Constitutional Court of Ukraine tends to identify legislative omission in cases of incomplete legal regulation («relative» omission) and demonstrates an unwillingness to qualify cases of inaction by the authorized state bodies regarding the implementation of legal regulation provided for by constitutional norms as an «absolute» legislative omission. It is emphasized that the failure of the Constitutional Court of Ukraine to take into account the concept of «absolute» omission within its methodology of constitutional review creates significant risks for the rule of law and sends a misleading signal to the subjects of law-making activity concerning the legitimacy of legislative inaction. In the development of scholarly approaches to clarifying the forms that «absolute» omissions may take in the national legal system, a proposal is made to consider the practice of the Constitutional Court of Portugal, which recognizes the existence of legislative omission in cases where laws intended to implement constitutional norms are repealed without introducing legal regulation that safeguards a concrete constitutional imperative. In support of this proposal, examples are provided of the repeal (or planned repeal through the adoption of relevant laws) of laws of Ukraine that are systematically linked to the Constitution of Ukraine and aimed at the development of its provisions. A position is substantiated on the advisability of developing a systematic approach that would strengthen the capacity of the state to promptly identify and eliminate legislative omissions by employing a three-level system of measures aimed at: 1) ensuring the realization of positive obligations by the subjects of law-making through the planning of law-making activities to address legislative gaps; 2) ensuring compliance with negative obligations by improving legislative drafting techniques; 3) increasing the effectiveness of constitutional control.