The law on referendum: explicit and covert threats

Dissension and strife turned out to be on the list of technological “bombs” under the new law on referendum from the start. Since its adoption in November 2012 by the Verkhovna Rada of the previous convocation, experts, MPs, and public figures stressed the shortcomings of this legislative act. Their remarks concerned the constitutionality of its adoption process as well as the contents of the bill.

Let us remind that among the main dangers that yet another government’s initiative contains, is a possibility to pass any amendments to the Constitution, or even its new version, without any intervention of the parliament or the Constitutional Court. Many experts stress this. It is also noted, that voting “for” or “against” a certain matter, which de facto can be brought up by a majority representative only, will take place without a quorum. There is no minimum attendance rate for MPs, without which a decision would be considered ignored by society and illegitimate. However, rather narrow limits are set for campaigning. While European legislation declares the need and necessity of keeping the balance in the discussion of the matter brought to referendum, that is, giving the right to speak to both supporters of the initiative and their opponents, Ukrainian legislators excluded communication between citizens and mass media from the process. Media will only be able to serve as the mouthpiece for president’s official viewpoint. The president will alone determine the compliance of the submitted issue with the Constitution and Verkhovna Rada, where the ruling party dominates.

According to the political tradition, the opposition actively took up the discussion of the controversial referendum issue. However, even though its position was consolidated, it turned out to be not serious, since it was reduced to slogans to hold a referendum of their own, which would deprive Yanukovych of presidency. The oppositionists’ opinions were somewhat changed after numerous lawyers’ reviews, who came to the conclusion that holding the referendum can only be initiated by those organizations and groups, which are directly supported by the government or are its secret agents. Then the promises to hold a referendum of their own were lost at the early stage of the “Wake up, Ukraine!” action, and new demands did not appear. The cancellation of the explosive law on referendum did not make it to the top of the opposition’s demands.

Nowadays the oppositionists do not have a single view on this matter. At the recent conference, organized by the Center for Political and Legal Reforms, parties have made state about the ways of the referendum issue regulation, each of them having its own solution. Valerii Karpuntsov, representative of the UDAR, urged the opposition to act in a more assertive way. According to Karpuntsov, his party has already written two constitutional petitions regarding the process of the law adoption and its content. It will be submitted to the addressee during the next few weeks. “In general, any activity, be it law-enforcing, medical, and even oppositional, resembles imitation now,” said the politician. Well, it was a rather self-critical remark.

In its turn, Svoboda offers what it thinks to be the only logical way out: mobilizing people to block polling stations during the referendum day. “It is impossible to influence these processes by appealing to the Constitutional Court or in any other way.  Resistance must be organized,” said in support of this position Yurii Levchenko, head of Svoboda’s analytical department.

The opposition party, which, according to the elections result, is supported the most, did not express a clear position on this matter. Batkivshchyna MP Volodymyr Bondarenko stressed that all places in Kyiv, where 2,000 people can rally, are taken under the regime’s control. This is the number of people required for holding a meeting, which would approve the issues brought to a referendum. One of the last legitimate decisions of the outgoing Kyiv City Council, whose powers expire next week, was to subordinate the largest Kyiv cinemas to the administrative resource.

It should also be noted that the Party of Regions MPs, the initiators of the draft law, and the Communist Party of Ukraine, which insists on holding a referendum on joining the Customs Union, were invited to participate in the discussion. Perhaps, the absence of representatives of both political forces is expected, and it speaks for itself.

Besides another disorder in the opposition’s system of cooperation, the referendum matter turned out to be the apple of discord among experts. Of course, the number of activists who support the referendum is significantly smaller, but they were given a right to speak too. As expert Vsevolod Rechytsky of the Kharkiv Human Rights Group noted, the proposed referendum was a certain prototype of the right to revolt, embodied in many European legislation systems. According to the expert, people can use this right to change the Constitution or the government in the country instantly. “The law on referendum is written in a wrong way, but such a standard must exist,” said Rechytsky.

In addition to disagreements between the political opposition and opponents of this law from the social and legal environment, a confrontation between the government and the people might appear, Mykhailo Koziubra says. “Raising the matter of immediate power in the people’s hands leads to a sort of dualism: there is the power of the people and the power of the state. The problem is that the first one is not limited by law. However, a balance between the direct and the representative power of the people should be observed while settling matters on amending the Constitution. Such changes cannot be made without the parliament’s involvement,” the former judge of the Constitutional Court thinks. According to him, international tendencies lead not to the expansion of issues that can be submitted to a referendum, but on the contrary, to the narrowing of their range.

It is a matter of time whether the initiatives brought to the nationwide vote will cause a split in the society. However, the experts state that due to a lack of information, people treat the referendum very positively. They say that an additional opportunity to influence the processes in the country appeals to the population.

The confrontation line appeared also in a body, which is directly involved in making changes to the Constitution. The law on referendum has somewhat decreased the importance of the Constitutional Assembly. Its work on developing the concepts and draft amendments to the Constitution can be destroyed by a single referendum decision. Any amendments to the Constitution, or even an entirely new one, can be supported though the nationwide vote. Some members of the Constitutional Assembly speak of the need to express the official position of the president’s advisory body on this issue. And even despite their proposal was rejected, they keep on defending their point of view. Recently, they published an official appeal addressed to the head of the Constitutional Assembly Leonid Kravchuk with a request to add a voting for the affirmation of the position on the need to implement changes to the Constitution in a constitutional way (through voting in the parliament and adoption of a corresponding decision of the Constitutional Court) to the agenda of the nearest sitting. The Day talked to the head of the Constitutional Assembly Leonid KRAVCHUK about the reaction to the Assembly’s request and further work of the Assembly.

How did you react to the Constitutional Assembly members’ request?

“We have discussed this on the organizational sitting of the bureau after it was brought up by the commission for democracy. Since the regulation on the Constitutional Assembly foresees the possibility of bringing any matter for discussion during the sitting by one of the members, and if there is a corresponding request, we are going to discuss it. But we cannot determine which decision is going to be made as a result of this discussion. According to the regulations and statute, the Assembly does not assess laws adopted by the Verkhovna Rada. This is the competence of the Constitutional Court. It is quite natural, for if all the organizations working in Ukraine, including those subject to the president of Ukraine, will start giving an official assessment of the laws adopted by the parliament, we are going to turn into a debate club.

“I have often said that each member of the Constitutional Assembly can express their point of view on the Internet or in mass media, this is the democratic way, but they should be guided by the statute and regulations of the Assembly when it comes to bringing up the issues for discussion, so we do not exceed our authority.”

According to the law on referendum, it is the president who determines the constitutionality or unconstitutionality of the issue which is to be put up for voting. Will the Constitutional Assembly be involved in making a decision by the president as an advisory body?

“If there is no request from the president or other government bodies to discuss this matter and give our opinions and assessments, we do not have the authority to do so.”

The last sitting of the Constitutional Assembly took place in December, but according to the regulations, it has to gather once every three months. What caused this delay?

“Yes, we have to meet every three months indeed, but this regulation is not mandatory. Certain deviations are allowed if there are reasons for them. And the reasons do exist: we have prepared a project of the Concept of amendments to the Constitution, created a draft law on local self-government, we are working on improving the judicial reform project. The latter was prepared by the Presidential Administration, it was discussed at the Assembly’s sitting and submitted for review to the Venice Commission. The decision will be made in June.

“So, we have prepared a lot of projects, but they are not brought to the level of accuracy when they could have been brought out for a wide discussion. At the moment, discussions are going on within groups, commissions, and among advisors; work is in full swing, but not in the regime of plenary sittings. Frankly speaking, we are not ready to have a meeting as of today, given the seriousness of the proposed changes. Among them is the matter of central government organization, but we cannot consider it, just as any other, without learning the president’s opinion, who is the guarantor of the Constitution and one of the subjects of making amendments to it. The Assembly is an advisory body to the president of Ukraine. So, we need time. Basically, there is not a single serious problem in the country development that we have not analyzed thoroughly and made corresponding proposals. As soon as the coordination process is over, we are going to add these matters to the Constitutional Assembly’s agenda.”

What are your predictions about the date of the sitting?

“It is always hard to settle the matters quickly on the top executive level, even if you really want to. At the moment, there is a certain tension going on in the society because of the events that are taking place in the Verkhovna Rada and beyond it, especially in the context of the far-fetched situation with ‘fascists’ and ‘anti-fascists,’ which does not fit in the normal political process. Also, extensive work on improving international relations and preparation to signing the Association Agreement with the European Union is going on. There was a sitting of the Eurasian Union in Astana, which was attended by our president. Such political activity and tension do not allow me to name a certain date. Everything is ready, now it is all about the coordination of positions.”