CONCEPT AND ESSENTIAL FEATURES OF THE REFERENDUM PROCESS

Abstract

Introduction. The current Law of Ukraine “On the All-Ukrainian Referendum” uses the term “processof referendum” 266 times, but does not contain a definition of what is meant by this term. Among domestic researchers of referendum issues, few people also take responsibility for defining this concept and identifying its key elements. At the same time, domestic legislation (both current and obsolete) contains an official definition of a referendum, which does not mention the procedural form of its implementation, and therefore does not sufficiently correctly reveal the essence of this type of popular expression. Therefore, modern legal science is faced with the task of developing a conceptual apparatus capable of improving the mechanism of legal regulation, ensuring clarity and comprehensibility of the legislative text, including the procedure for organizing and conducting a referendum.

Summary of the main results of the study. In the current legislation of Ukraine and modern legal doctrine, there are different approaches to naming the procedure for organizing and conducting a referendum. In the author's opinion, the use of the term "referendum process" has an advantage over others, since it is of the same order as the names of other types of legal process that take place in constitutional law, such as "electoral process" and "legislative process". Moreover, the term "referendum process" used by the legislator is more sociological than legal in nature, since the word "process" in this context can be interpreted as a synonym for the word "course", while its use in combination with the adjective "referendum" makes a broad interpretation impossible, emphasizing that it is exclusively a type of legal process. The generic feature of the referendum process is that it is one of the types of legal process that are regulated by the norms of constitutional law. This does not raise any reservations and frees us from the need to provide an extensive list of features inherent in all types of legal process, focusing exclusively on those specific features that are essential, most important, those that distinguish the referendum process from all other types of legal process, including those regulated by constitutional law. In the author's opinion, there are three such features. The first among them is the goal of the referendum process, which has a dual nature. On the one hand, the referendum process must legally record the political will of the primary collective subject (the people or territorial community), and on the other, ensure the realization by citizens of the right to participate in referendums. The second essential feature of the referendum process is that it is implemented exclusively in an initiative manner, that is, it has an initiative nature. The third essential feature of the referendum process is its completeness (in the special literature this feature is also called imperativeness).

Conclusions. The term “referendum process” used by the domestic legislator is more sociological than legal in nature, since the word “process” in this context can be interpreted as a synonym for the word “course”, while its use in combination with the adjective “referendum” makes a broad interpretation impossible, emphasizing that it is exclusively a type of legal process. Accordingly, from the point of view of legislative technique, the term “referendum process” is more correct. The referendum process should be considered in objective and subjective aspects, which are dialectically correlated with each other as form and content. The referendum process in the subjective sense is an initiative and imperative type of legal process, which is regulated by constitutional and legal norms and aims to legally record the political will of the primary collective subject (the people or territorial community), as well as to ensure the realization by citizens of the right to participate in referendums. The referendum process in the objective sense is an institution of referendum law, which is a set of constitutional and legal norms that regulate the procedural order of legal fixation of the political will of the primary collective subject (people or territorial community), as well as the exercise by citizens of their right to participate in referendums.