JURIST Guest Columnist Maksym Popovych, National University of Kyiv-Mohyla Academy, discusses the Ukrainian National Referendum Law and decries it as a potentially unconstitutional law that threatens the democratic principle of checks and balances…

Public attention has been growing related to the Ukrainian National Referendum Law, beginning when Ukrainian President Viktor Yanukovych signed the controversial act in November 2012. During the last round of voting on the law, 265 deputies supported the draft law. However, years have passed since the registration of this draft in the Verkhovna Rada (the Ukraine’s unicameral legislature) and it expressed a great deal of criticism.

The main criticism lies in determining the scope of the national referendums that have been authorized pursuant to the new law. Article 3 of the law defines the scope of such national referendums, which include the adoption of a new constitution, the adoption of any amendments to the existing constitution and the cancellation or adoption of amendments to any Ukrainian law. Although the language of the Constitution of Ukraine is quite clear in this regard, the Constitutional Court of Ukraine explained in a case regarding the adoption of the constitution and laws of Ukraine at a referendum that, by exercising the right to direct democracy, Ukrainian citizens can take part in national and regional referendum to decide any economical, legal, cultural or other issue besides those that are explicitly or implicitly prohibited by the constitution.

While Article 20(1) of the new law limits the scope of such referendums by excluding questions of taxation, budget planning and amnesty, it does not prohibit referendums on those issues that are implicitly eliminated by the constitution from the referendum’s scope. This means that from now on Ukrainian people may decide presidential term limits, the composition of the Constitutional Court or the time and format of public elections.

It would be an understatement to call the law unconstitutional.

Another controversy revolves around the format of these national referendums. The new law does not provide any limitations on the quantity or subject matter of questions raised in a referendum. This means that every Ukrainian can choose international policy for a few decades, determine the presidential term and decriminalize rape on the same, single voting sheet. Would anybody call this a promotion of effective direct democracy? In fact, the law is in complete conflict with the position of the Council of Europe, expressed in the Parliamentary Assembly’s Resolution 1121. The Resolution calls upon states to “limit the number of subjects per referendum to be held the same day in order to clarify the debates on the documents subjected to a vote and to help citizens to reach a decision[.]” Indeed, the new law seems to be designed to eliminate any debate on the pending matters and to prevent people from receiving adequate and decent information on the questions they are to decide at referendum.

Probably, the most tendentious provision of the new law is Article 3(3), which creates a legal basis for the adoption of a new constitution by referendum. In the case of Ukrainian referendums on people’s initiative, the Constitutional Court examined the constitutionality of the question: “Do you agree that the Constitution of Ukraine that will be adopted at the national referendum?” The court reached the conclusion that that given question excludes the very issue of necessity in adopting a new Constitution and, thus, declared the question unconstitutional.

The ambiguity in the law can be easily illustrated by the proposed model of verifying results of a referendum, which removes the parliament from the process. Pursuant to Article 15(7), the results are upheld by presidential act. On the contrary, Verkhovna Rada’s involvement can only be characterized as insignificant. The Central Judicial Office of Verkhovna Rada noted that the provisions of the law dealing with presidential powers are in conflict with the constitutional requirement of the Parliament’s involvement in the process of adopting constitutional amendments. Moreover, the Constitutional Court noted in a case on guarantees of activities of national deputies of Ukraine that the list of presidential powers enumerated in the Constitution is exhaustive, thus making it unconstitutional to vest any additional powers by law. Apparently, the new law disregards this legal position.

A number of controversies rise in the context of referendum procedures. According to Article 22(8), it is the president of Ukraine and the Central Election Commission who has the power to examine the constitutionality of the subject matter of any referendum. This could potentially be seen as limiting the powers of the Constitutional Court with regard to constitutional interpretation, which is certainly unconstitutional. Excluding judicial or legislative organs from this process and creating new control mechanisms for administrative agencies can barely be regarded as creating legal guaranties for direct democracy.

Finally, it is necessary to look at Article 74(2), which prohibits the media from imparting information concerning referendum questions to the public, unless they sign a contract with a pressure group and receive funding from one. To smash the media completely, the law has given the Central Election Commission the power to supervise and monitor media involvement. This provision is providing a method for direct and unjustified state interference in a referendum campaign. Furthermore, these limits do not only affect the media. In fact, political parties and non-governmental organizations are not recognized as subjects of the referendum initiative. This leads to unreasonable presidential discretion with regard to referendum proposals. Moreover, according to Article 31(2) the Central Election Commission has even wider discretion with regard to pressure group registration. The law does not specify the reasons for the denial of such registrations and, thus, vesting an unlimited amount of influence in the Commission.

The above-examined flaws of the new law kindle doubts as to the possible usage of this legal framework to legitimize the abuse of power and elimination of what is left of checks and balances in the government of the Ukraine. The Ukrainian opposition has already expressed their intention to bring the matter before the Constitutional Court of Ukraine to declare the law unconstitutional, although they have also noted that the Constitutional Court’s impartiality on the matter is questionable.

The Venice Commission is now examining the new law. While the final decision is yet to be made, the secretary of the commission confirmed the European disquiet with regard to the possibility of altering the constitutional order in Ukraine. In any event, even a brief analysis of this law raises a range of reasonable doubts as to the declared aim of direct democratic development in Ukraine.

Maksym Popovych studies law at the Kyiv-Mohyla Academy. He was chairman of the moot court team at the European Court of Human Rights Moot Court and worked as a legal consultant at the Kyiv-Mohyla Law Clinic.

Suggested citation: Maksym Popovych, Ukrainian National Referendum: Direct Democracy or Constitutional Abuse?, JURIST – Dateline, Jan. 16, 2013, http://jurist.org/dateline/2013/1/maksym-popovych-ukraine-referendum.php