Some thoughts regarding the new law on referendums
On 6 November 2012 the Verkhovna Rada passed the Law on a National Referendum. The new law annulled the previous Law on National and Local Referendums from 1991 which was passed before the adoption of the 1996 Constitution and which significantly diverged from it in many provisions.
Under the new law the subject of a national referendum may be either the adoption of a totally new version of the Constitution or the introduction of significant amendments to the current Constitution. A referendum can also cancel, seek the revoking or find null and void a law on amendments to the Constitution. In this way it is possible to pass and cancel ordinary laws, make amendments to these laws (except laws on taxes, the budget and amnesties). The law permits any issues to be dealt with at a national referendum with the exception of those which the Constitution prohibits being put to referendum.
All of this undoubtedly creates additional stimuli for the work of the Constitutional Assembly of Ukraine. After all, the more radical the amendments to the current Constitution, the lesser will be its potential dependence on the Verkhovna Rada. If the
Constitutional Assembly manages to fully create a new Constitution, its adoption can be without the participation of MPs, i.e. exclusively at public initiative.
Furthermore, a referendum can cancel any constitutional amendments made earlier (aside from procedurally correct amendments to Sections I, III, XIII of the Constitution which envisage the use of a referendum in automatic regime).
It is clear that various political forces will have (already have) different views on the Law on a National Referendum. However if you take into consideration the fact that one of the deeper reasons for the creation of the Constitutional Assembly can be considered chronic parliamentary incapacity, then the use of a referendum to overcome parliamentary ills seems expedient. After all if parliamentarianism in Ukraine is really incurably ill, then only the people can act as surgeon.
Furthermore, the adoption of the Law on a National Referendum gives real meaning to Article 5 of the Constitution regarding the sovereignty of the Ukrainian people. Paragraph three of that article states that “the right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials. Given the example juridical content of this norm, all norms of the Main Law which in their content define or change the constitutional order in Ukraine should be changed by referendum (in addition to the requirements of Section XIII of the Constitution).
More simply, the Law on a National Referendum potentially enables the cancellation of amendments to the Main Law introduced by the Verkhovna Rada but incompatible with the fundamental interests of the Ukrainian people. This law is as it were a moderate Ukrainian equivalent to the “right of the people to a democratic revolt” which exists in Euro-Atlantic constitutionalism.
Critics of the new Law insist that the given normative act has effectively cancelled the right of Ukrainian citizens to take part in local referendums. One can answer that as follows: firstly, Section III of the current Constitution does not envisage such a democratic institution as a local referendum (such a type of referendum is envisaged only in Article 138 of Ukraine’s Constitution regarding the competence of the Autonomous Republic of Crimea), thus the Law’s unconstitutionality is not at issue. Secondly, the law just passed does not prohibit the Verkhovna Rada from adopting another, separate, law on local referendums. The latter would be all the more justified since Ukraine’s legislation contains a number of norms on the direct expression of the will of the people at local level. The adoption of the strange, in some people’s view, Law on a National Referendum has aroused sharp reaction from the legal community in Ukraine.[1] The civic activists and lawyers I. Koliushko and Y. Kyrychenko accused the Verkhovna Rada of renouncing their own prerogative in unconstitutional manner. They assert, moreover, that the point is not even in parliament’s own position, but in the wish of its majority a priori to gain control over the constitutional process.
In that respect one can say that firstly, as already mentioned above, the process for properly introducing amendments to Ukraine’s Constitution is not confined to the norms of Section XIII. This process is also defined by Article 5 of the Main Law which was for a long time not properly embodied in current legislation. If one interprets the content of this article in exact correspondence with the aim of the norm in it, then all laws which concern the issue of the constitutional order in Ukraine should be passed not by the Verkhovna Rada, but solely by the Ukrainian people. For example, it is in that way that the form of government should have been changed in 2004.
Secondly, the new Law on a National Referendum gives real substance to the concept of a safeguard against possible usurpation by the state of the people’s sovereignty.
Clearly the role of “State usurper” can be played not only by the legislative, but also the executive and judicial branches of power, not to mention the President. It is precisely for that reason that a constitutional referendum can become the only legitimate and at the same time legal means of countering the State’s onslaught on the inalienable rights, freedoms and interests of the republic’s citizens.
It is clear that without the support of those in power it will not be easy to have a referendum held at the people’s initiative in Ukraine. However, as J. Talmon once wrote, from 1789 onwards it has not been the despotism of kings which has been the real threat to the people’s political freedom, but an unlimited parliamentary majority, totalitarian democracy.[2]. Furthermore, as T. Jefferson, an even more authoritative figure on democratic issues, said, the people are the only political subject which cannot be corrupted. For that reason it is worth citing the statement by W. Chamberlin that the interests of the Ukrainian people were virtually at all times in its existence betrayed by its own leaders..[3]
According to A. Kwaśniewski, Ukraine’s Verkhovna Rada of the sixth convocation was the richest parliament in Europe going by the financial position of its members. Yet at the same time, in terms of income per head of population, during the same period Ukraine was in 39th (out of 40) place in Europe. [4]
Thirdly, it is specifically the way the Verkhovna Rada of the sixth convocation worked that makes it possible to conclude that Ukrainian parliamentarianism as a whole is in deep crisis (if not dead). If, for example, the principles of language policy for Ukraine’s 45-million strong nation could be determined by approximately 80 MPs with other [MPs’’ cards led by M. Chechetov, then what will prevent another conductor from leading a vote on the extension, continuation or abolition of any rights or powers?
Fourthly, in the considerations of opponents of the law on the referendum there is a presumption of political infantilism of the Ukrainian people. There is no doubt that the people, like parliament, can make fatal political mistakes. However nothing cures one from political flops better than ones own experience. The European Constitution, drawn up with the best of motives, was, as we know, rejected by ordinary citizens of France and the Netherlands. The people were not convinced by the results of political professionals.
One way or another, Ukraine’s really urgent problem as of today is not a problem of the procedure for adopting, but the content of constitutional amendments. After all profession analytical and synthesizing work on constitutional amendments is for the moment being carried out transparently and openly. It is only Ukrainians themselves who can answer the question whether the Ukrainian people are ready for direct defence or reinstatement of their interests.
Clearly the best way out of the situation would be for the people to elect a special body for the adoption of a draft new (or amended) Constitution of Ukraine – a Constitutional Assembly, Constituant, etc.
As far as a basic comparison of the political possibilities of the current Verkhovna Rada and the Ukrainian people is concerned, here the reputation of people’s representatives does not seem able to compete. In fact does the adoption of an ultimately liberal law on referendums not demonstrate the irresponsibility of our parliament?
Vsevolod Rechytsky, KHPG Constitutional specialist