Is the planned referendum legitimate?
08.12.2000
In my opinion, the answer is ’No’. Here are the reasons.
Any changes in the Constitution must be carried out only according to the Constitution, namely to its Part 13 ’Making changes in the Constitution of Ukraine’. Part 13 does not stipulate entering any changes to the Constitution by way of a referendum. The only mention of a referendum in this part is made in Article 156: ’An all-Ukrainian referendum confirm changes to Parts 1, 3 and 13 of the Constitution after the adoption of the law about the changes in the Supreme Rada by two thirds of the Constitutional composition of the Rada. Since all the six amendments, which figure in the referendum, change the Constitution and since the Supreme Rada did not consider a law about changing the Constitution, holding the referendum violates the Constitution.
It should be noted that the questions of the referendum are such that only the last question can be answered by ’yes’ or ’no’ - all other questions are complicated and actually contain several questions. Especially striking is the President’s desire to disband the Supreme Rada, if it does not shape a steady parliamentary majority during a month. As to me, this is a typical demonstration of the totalitarian ideology. Not a single European constitution contain a similar norm. From all sides it is obvious that the ’people’s initiative’ is organized from the top, and the policy of pressure and coercion that dominated during the Presidential election is continued. Here is one example. To the parents of a friend of mine a doctor from the district hospital telephoned and asked them to sign a referendum form. The poor woman explained that she got an order to give in four such forms, otherwise she will be fired.
I do not object to a referendum as such. Referendums are needed when it is necessary to answer a simple non-ambiguous question, which concerns everybody and which is difficult for MPs to answer. If the President suggested a public discussion about the ownership of land or immediate privatization of all profitable Ukrainian enterprises, I would myself collect signatures for holding such a referendum, since, in my opinion, these questions have top priority for the acceleration of the social progress. I would support the reduction of the Supreme Rada and introduction of the second chamber of the Parliament, since the interests of regions are not sufficiently represented in the Supreme Rada. In general, I believe that our Constitution is archaic, that it stabilizes the stagnation and requires many amendments. That is all true, but why to violate the legal procedure? The President seems to believe that forceful pressure and intensification of control can improve the situation and reform both economy and society. Such hopes are futile. In my opinion, such policy will lead to more stagnation and more numerous emigration of those who are able to work efficiently.
By the way, all decisions of the majority (of the population, not of MPs) are, in my opinion, non-legitimate and must be confirmed by the full composition of the Supreme Rada. According to Article 82 of the Constitution, the Supreme Rada is plenipotentiary under the condition if not less than two thirds of its constitutional composition have been elected. It follows from here that the parliamentary majority of 226 votes is not plenipotentiary. Why not to count votes then by telephone questioning? Article 3.2.2 of the Regulations of the Supreme Rada states that a law is considered adopted, if after its discussion at the plenary meeting it is confirmed by the majority of the actually present number of MPs. I believe that this article is violated. The Regulations state that a law may not be adopted without listening to the minority, if even this minority is leftish. Neglect of procedures, the substitution of the right by the political expediency is the direct road to violating human rights.
Any changes in the Constitution must be carried out only according to the Constitution, namely to its Part 13 ’Making changes in the Constitution of Ukraine’. Part 13 does not stipulate entering any changes to the Constitution by way of a referendum. The only mention of a referendum in this part is made in Article 156: ’An all-Ukrainian referendum confirm changes to Parts 1, 3 and 13 of the Constitution after the adoption of the law about the changes in the Supreme Rada by two thirds of the Constitutional composition of the Rada. Since all the six amendments, which figure in the referendum, change the Constitution and since the Supreme Rada did not consider a law about changing the Constitution, holding the referendum violates the Constitution.
It should be noted that the questions of the referendum are such that only the last question can be answered by ’yes’ or ’no’ - all other questions are complicated and actually contain several questions. Especially striking is the President’s desire to disband the Supreme Rada, if it does not shape a steady parliamentary majority during a month. As to me, this is a typical demonstration of the totalitarian ideology. Not a single European constitution contain a similar norm. From all sides it is obvious that the ’people’s initiative’ is organized from the top, and the policy of pressure and coercion that dominated during the Presidential election is continued. Here is one example. To the parents of a friend of mine a doctor from the district hospital telephoned and asked them to sign a referendum form. The poor woman explained that she got an order to give in four such forms, otherwise she will be fired.
I do not object to a referendum as such. Referendums are needed when it is necessary to answer a simple non-ambiguous question, which concerns everybody and which is difficult for MPs to answer. If the President suggested a public discussion about the ownership of land or immediate privatization of all profitable Ukrainian enterprises, I would myself collect signatures for holding such a referendum, since, in my opinion, these questions have top priority for the acceleration of the social progress. I would support the reduction of the Supreme Rada and introduction of the second chamber of the Parliament, since the interests of regions are not sufficiently represented in the Supreme Rada. In general, I believe that our Constitution is archaic, that it stabilizes the stagnation and requires many amendments. That is all true, but why to violate the legal procedure? The President seems to believe that forceful pressure and intensification of control can improve the situation and reform both economy and society. Such hopes are futile. In my opinion, such policy will lead to more stagnation and more numerous emigration of those who are able to work efficiently.
By the way, all decisions of the majority (of the population, not of MPs) are, in my opinion, non-legitimate and must be confirmed by the full composition of the Supreme Rada. According to Article 82 of the Constitution, the Supreme Rada is plenipotentiary under the condition if not less than two thirds of its constitutional composition have been elected. It follows from here that the parliamentary majority of 226 votes is not plenipotentiary. Why not to count votes then by telephone questioning? Article 3.2.2 of the Regulations of the Supreme Rada states that a law is considered adopted, if after its discussion at the plenary meeting it is confirmed by the majority of the actually present number of MPs. I believe that this article is violated. The Regulations state that a law may not be adopted without listening to the minority, if even this minority is leftish. Neglect of procedures, the substitution of the right by the political expediency is the direct road to violating human rights.