On November 6, 2012, the Ukrainian Parliament adopted [Ukrainian] new legislation regulating national referendums. Ukraine President Viktor Yanukovych approved the law on November 27, 2012. This controversial decision has provoked much discussion in Ukraine.
The draft of this new legislation was adopted in 2010 but the law only entered into force at the end of 2012. Typically, the Constitution of Ukraine [Ukrainian] requires a three-step process to adopt any act, whereby the parliament must approve the draft three times. During this process, each article of the proposed law must be separately approved. However, for this act, the Ukrainian Parliament neglected amendments which had been offered during this review process and adopted the original, unamended version of the act. The famous Ukrainian lawyer Viktor Musiyaka the author of Ukraine's constitution has declared [Russian] the legislation unconstitutional because of the procedural violations during its adoption. The Legal Act on the National Referendum [Ukrainian] provides the guidelines for amending the constitution, ratifying territorial boundaries and establishing legislation.
According to Article 73 [Ukrainian] of the Constitution of Ukraine, changes of the territorial boundaries of the country can be made only by referendum. However, the previous Legal Act on National and Local Referendums [Ukrainian] did not include this requirement. Article 18 of the Legal Act on National Referendum 2012 contains a provision defining the process of changing the territorial boundaries of the Ukraine through the approval of international treaty, modifying the territory of Ukraine via referendum. As to the overall objective of the referendum, the 1991 Act contained a provision which allowed for defining the main aim of Ukraine's constitution and legal acts by national referendum. The new legislation replaces this provision with a more general referendum mechanism.
Fortunately, the new Act contains a provision establishing that any new versions of the constitution and legal acts may neither narrow the scope of existing human rights nor liquidate the independence of the state. Also, legal acts which damage territorial integrity may not be offered for referendum. The new legislation on the national referendum defining the scope of referendums conforms to the Constitution of Ukraine. At the same time, general referendum is allowed for addressing any number of potential problems. This amendment, at least, seems reasonable because it permits referendums on necessary problems.
According to Article 15 of the Act, the Constitution of Ukraine can be adopted via referendum. Amendments to the constitution or its termination may also occur through referendum, and do not require the future approval of the parliament. The Parliament of Ukraine excluded this provision from the draft in the "second step" of approval described above, but, in 2012, this provision somehow appeared in the final version of the act. Therefore, Parliament ignored second-step amendments and simply adopted the first version of the act. However, the aforementioned norm has a sufficient legal basis. For instance, according to an April 2008 decision [Ukrainian] of the Constitutional Court of Ukraine, any act adopted via referendum does not require any future approval by Parliament to take effect. Regarding the adoption of a new constitution, the process of drafting a new constitution is not prescribed by the legislation on the national referendum. This contradicts the decision of the Constitutional Court of Ukraine, where the Court stated that this process should be prescribed by the constitution.
As to the procedural part, there are some amendments in the new act, but, generally, the procedure remains the same. For instance, the procedure of citizen-initiated, national referendums has become more complicated. Now, initiative groups can be formed by a meeting that has to consist of more than 2,000 citizens. The previous legal act only required 200 persons to form such an initiative group. However, the most dangerous provision of this legislation is that the new version of the constitution comes into force as soon as the results of the referendum are officially announced. The same provision is applicable to any act or amendments adopted via referendum. Such provision violates Article 94 of the Constitution of Ukraine. According to this article, a legal act enters into force only after its official publication. Even if any other procedure is prescribed by the act, a legal act cannot enter into force before its official publication. Additionally, Article 97 of the Legal Act on National Referendum establishes that any decisions via referendum should be published during the five days after the official announcement of the referendum's results. This contradicts Article 8 of the constitution, which states that all the legal acts adopted in Ukraine must be adopted on the basis of the Constitution of Ukraine and cannot contradict it. However, the Constitutional Court of Ukraine stated that Article 94 is not applicable to adopting acts via referendum. The Court mentioned nothing regarding the constitution only about legal acts in general.
The previous Legal Act on National Referendum contained a provision that any referendum is invalid if less than half of the listed citizenry participated in the election. However, the recently adopted Legal Act on National Referendum does not contain any similar provision. Article 69 of the Constitution of Ukraine defines referendum as a form of direct democracy in Ukraine. This means that the referendum should represent the wishes of the whole nation. A referendum cannot be representative if less than half of the citizens take part in it. Consequently, the new law violates the principle of direct democracy. Moreover, the lack of such safeguards becomes more dangerous in the Ukraine because the level of citizens' participation in any kind of voting has decreased every year since the dissolution of the Soviet Union in 1991. For instance, only 56.76 percent of constituents participated in Parliamentary elections in the fall of 2012.
The biggest dangers of the new law are the provisions that allow the constitution to be adopted via referendum and the fact that the new constitution will enter into force just after the publication of the results of the referendum. It is not a secret [PDF] that there are big problems in Ukraine with fair elections and falsifications of the results; hence, there is a higher likelihood for fraud to occur during a referendum.
Oksana Siruk studies law at Kyiv-Mohyla Academy. She is a Member of of the Monroe E. Price Law Media
Moot Court Competition and a member of the Students' League of Ukrainian Bar Association.
Suggested citation: Oksana Siruk, New Legislation on National Referendums in Ukraine: Legal or Political Decision?, JURIST - Dateline, Feb. 1, 2013, http://jurist.org/dateline/2013/02/oksana-siruk-ukranian-referendum.php
This article was prepared for publication by Leigh Argentieri, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org