AstatementbythePresidentofUkrainePetroPoroshenkoaboutthepossibilityofareferendumonUkraine’sNATO membership draws attention not by the accession to the Alliance, but rather by the problem discussed by experts for four years. What is meant here is the law “On National Referendum” dated 6 November 2012 (http://zakon3.rada.gov.ua/laws/show/5475-17), which only nominally deals with referendum as a tool of democracy. Despite the fact that bills providing for the abolition of this law and the adoption of a new one are registered in the parliament, there has been no dialogue on this issue for four years.
The “ins and outs” of the law
The problem is that, on the one hand, if citizens comply with the law, they would never be able to initiate a referendum without the participation and support from authorities. Let’s take, for example, such aspect of the law (Article 30) as the mandatory presence of a representative of the Central Election Commission (CEC) during a citizens’ meeting on the preparation of a national referendum. The CEC representative should certify the holding of the citizens’ meeting, otherwise it will be recognized invalid, even if held. This rule of the law could be implemented only if the CEC gets an informal permission for “certification”.
It is not an easy thing to arrange the citizens’ meeting because the participation of no less than 2,000 people is required. All of them should be registered. For instance, if 1 minute is spent for the registration of 1 participant, it will take 33 hours or more than a day to register them all. Besides, all the participants should be accommodated. So, the issue of efficiency of a discussion and a vote count at the citizens’ meeting is rhetorical.
Furthermore, the initiative group on holding the national referendum on popular initiative, set up at the citizens’ meeting, should collect 75,000 signatures per day in support of a referendum because under the Constitution of Ukraine, 3,000,000 signatures should be collected within 40 days. Is this requirement realistic? It is not realistic if the signatures are collected honestly. Yet, it could be possible to collect this number of signatures if data from personal databases (which is forbidden by law, but quite possible in Ukraine) or forged signatures are used. The CEC is given 7 days to check 3 million signatures. Needless to say that the CEC could check them only selectively. And it depends upon the CEC what signatures to check. The CEC may or may not reveal the forgery, as it happened during the preparation of the 2000 referendum initiated to offer the then Ukrainian President Leonid Kuchma the opportunity to influence the parliament. That time, “abusive words” were used as “names” and “second names” in the signatures lists. This was sheer cynicism because everyone knew that the referendum was initiated by the “people” in favor of Leonid Kuchma, and the inclusion of these “names” in the lists sounded like a mockery of the “guarantor of the Constitution”, and of the rule of law.
As is seen, it is impossible to take even the initial steps for calling the referendum on popular initiative without a desire of the country’s leadership.
The legal means to control the results
Other components of the “problematic law” include procedures that allow falsifying the results of any referendum, whether it is held on popular initiative (called by the President) or initiated by authorities in the two cases provided for by the Constitution of Ukraine. The parliament could initiate the national referendum to decide on changes of Ukraine’s territory, while the President – on amendments to the three Sections of the Constitution.
So, what are these procedures?
The most important ones are those that allow controlling the course of the preparation and conduct of the referendum campaign, voting, and its results.
These include:
- Opportunity to put to a referendum any number of issues on any subject (except for taxes, budget, and amnesty matters, which is expressly prohibited by the Constitution). Is it possible to hold a referendum without limitation of the number of subjects? It is obvious that such approach is the easiest way to confuse citizens;
- Removal of the parliament as the single (only) legislature from law-making, which undermines the idea of the rule of law in Ukraine. Democracy is based on the use of different tools: elections of people’s representatives authorized to make decisions and control them through parliamentary mechanisms, consultations as an advisory tool, and referendums as a mechanism of people’s decision-making. It is essential that decisions are made on the basis of participation of all citizens in political life and their cooperation within political institutions, as stressed by the PACE resolution 1121 (1997) “On Instruments of Citizen Participation in Representative Democracy”;
- Permission for observers only and exclusively from the referendum initiative group;
- Critical dependence of members of referendum commissions (referred to as election commissions in the law) from those who delegated them. It is possible to recall any commission member even on the voting day without any reason and replace him/her with a more loyal person, which casts doubt on the principle of independence of election commissions and their lack of bias;
- Recognition of protocols of “election commissions” valid even if they are signed by only one commissionmember;
- Absence of a turnout threshold for referendums. The participation of even 2 persons in the vote turns this “performance” into public decision-making. Yes, it will be public decision-making because according to the law, a decision of any referendum (mandatory or advisory) immediately becomes a part of the law (although it is unclear in what form such decisions could be implemented). Hence, even a few people could turn the country 180 degrees if the vertical of the referendum administration works.
A detailed analysis of legal aspects of the law “On National Referendum” was given by the Venice Commission in July 2013 (http://document.ua/visnovok-n-705-2012-shodo-zakonu-ukrayini-pro-vseukrayinskii-doc147137.html). The problem of the legitimacy of the law, which is beyond the logic of the functioning of the rule of law, is constantly raised by NGO representatives and legal experts. The Presidential Administration and the Verkhovna Rada are also familiar with the problem. In December 2014, 57 MPs lodged a motion with the Constitutional Court of Ukraine regarding the constitutionality of the law and its provisions. In March 2017, it will be a year since the Constitutional Court has completed the oral hearing of the parties in the case and proceeded to a closed part of its plenary session. Despite the availability of expert opinions on the improper decision-making procedures of the law (including the opinion by the Presidential Administration), the Court has not yet ruled on its constitutionality.
The unjust law could also be abolished by the Verkhovna Rada because in case of the national referendum it would not be able to influence legislation and would lose the opportunity to represent an official position. It would be able only to voice its opinion, but not during the referendum. Just imagine a scandal that could follow the adoption of a new constitution or new constitutional amendments at the “national referendum held on popular initiative”, if they are unwanted by the parliament. Yet, this scandal is unlikely to help because everything is possible under the law in force, even decisions made contrary to the Constitution.
The adoption of the “new Constitution” and the “referendum on popular initiative”
The current law is based on the idea that at the national referendum, the Ukrainian people can “adopt, in the manner established by this law, a new version of the Constitution” (Articles 15, 16) despite the fact that the Ukrainian Constitution does not provide for the adoption of a “new Constitution”, but only amendments according to certain rules.
In addition, bypassing the questing of the adoption of the new Constitution, the law gives a narrow interpretation of a procedure for making changes to the “protected” Sections of the Basic Law, i.e. Sections I, III and XIII. By the logic of the authors of the law, changes to these Sections require neither decisions of the Constitutional Court of Ukraine (in contrast to the introduction of changes to other Sections) nor the two sessions needed to give the Verkhovna Rada time to consider decisions. According to the Constitution, the constitutional referendum could be initiated only by the President of Ukraine and only within a defined procedure. Needless to say that under the current law, the national referendum on constitutional amendments or the adoption of the new Constitution represents a powerful weapon to cover up any decision with the name of the people. Indeed, it is much easier to push through one decision in the parliament than two, especially under the authoritarian regime or “regency” over the parliament. And a “desired people’s will” will not be a problem because, as we remember, many other issues could be simultaneously put to a referendum and positively voted by Ukrainians. Want NATO? Well, take the results that are most suitable for the majority of the population. You don’t trust these results? It’s strange as they were achieved according to the same procedure – dependent electoral commissions, the absence of judicial control at all stages, and the actual ban for the media, under penalty of their decertification, to spread views different from those of the “initiative group” (for the period of the referendum).
The adoption of a law consistent with the legal principles
The law “On National Referendum” could not be “improved” because it does not fit the legal framework, fails to meet the minimum requirements of the Venice Commission listed in the Code of Good Practice on Referendums of 2007, and creates a conflict between the role of parliamentarism and the “expression of the people’s will”.
The Verkhovna Rada would have to take care of the abolition of this legal “mine”, as experts of the coalition of NGOs “For Fair Referendum” call the law “On National Referendum” of 2012. Yet, the Ukrainian parliament takes no action to revoke it. What is more, for a year and a half, it ignores the opportunity to review, at least in the first reading, the bill No. 2145а on national referendum (http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=55689) drafted by governmental and non-governmental experts, including representatives of Ukraine’s Justice Ministry, theorists and practitioners headed by the Professor Volodymyr Shapoval with the assistance of IFES, an international organization that deals with the development of legal culture of elections.
At least, a serious discussion should be launched on a doctrinal approach to the protection of direct democracy in Ukraine because there is no guarantee in post-authoritarian society that any Head of State would miss the opportunity to press for desired decisions. However it seems that the Verkhovna Rada will start to do something only after it finds itself outside the area of influence on decision-making.
If the referendum mechanism is not legally entrenched, the conduct of referendums under the current law will be controlled in order to produce a foregone result. Yet, the consequences of all this, without exaggeration, could be devastating for the state.
RU 10 By Svitlana Kononchuk and Daryna Stepaniuk,
Ukrainian Center for Independent Political Research
8 January 2017