President urged to veto Law on Referendums
The Centre for Political and Legal Reform has initiated an open appeal to President Yanukovych calling on him to veto the Law on a Nationwide Referendum passed with unseemly haste and infringements of regulations on 6 November (see Constitutional Fiddle)
The signatories warn that the Law could lead to the total breakdown of Ukraine’s legal system created on the basis of the Constitution. It gives the following reasons:
1. In breach of Part XIII of the Constitution the Law establishes the possibility of changing the Constitution or adopting a new version of it through a referendum called by popular initiative and without parliament having any part in it.
It was specifically because this did not comply with the Constitution that the Verkhovna Rada, during the second reading of the draft bill on 10 July 2010, removed Article 16 which referred to a referendum on changes to the Constitution. It is clear that this is why the draft bill has been passed in the version of the first reading.
2. The Law allows for the current Constitution to be annulled by referendum without a new Constitution having been adopted. This could have unforeseeable consequences since the present legal system is based on the Constitution and does not allow for the possibility of existing without it.
3. The draft law makes it possible to pass a new Constitution at a nationwide referendum without regulating procedure for preparation and discussion of a draft Constitution. This could lead to usurpation of power through the holding of a manipulative referendum. The Law also establishes that the procedure for passing a new version of the Constitution is fixed only by this Law. This is in breach of a Constitutional Court judgement from 16.04.2008 which stated that the Ukrainian people have the right to adopt a Constitution at a nationwide referendum according to popular initiative according to the procedure set down in Ukraine’s Constitution and laws.
4. The Law establishes an unconstitutional procedure for its entry into force, this being from the announcement by the Central Election Commission of the results of a nationwide referendum. This breaches Articles 57 and 94 of the Constitution which prohibits entry into force of laws which have not been published and made known to the public.
5. The Law flouts European standards for organizing and holding referendums regarding:
the need to regulate the provisions in the Constitution regarding constitutional referendums;
the subject of constitutional and general referendums;
subject and procedural suitability of texts put to a referendum;
the role of parliament in adoption of laws at a referendum (including laws about amendments to the Constitution);
public funding and campaigning for the referendum.
6. The Law establishes an undemocratic system for carrying out a nationwide referendum. The State authorities and bodies of local self-government will directly influence the results of the referendum at virtually all stages.
There is an undemocratic procedure for the formation of district and precinct commissions for the referendum. The Law states that the makeup of the commissions is at the submission of the heads of the relevant bodies of local self-government and confirmed by higher commissions. The Law does not envisage the participation of political parties or even the possibility of them having their own observers. This does not comply with Article 36 of the Constitution according to which political parties promote the formation and expression of the political will of citizens.
The procedure for campaigning does not guarantee equal access to the media of all interested groups and violates the constitutional right to freedom of thought and expression. The CEC is authorized to carry out the campaigning on the issues of the referendum using public funding especially designated for the referendum.
There is no norm about the minimum turnout, meaning that any number, however small, of people voting would be enough, even in the case of constitutional changes.
The procedure is not aimed at receiving a result which reflects the real wish of the Ukrainian people. Nor does it contain proper and effective mechanisms for exercising the constitutional right of citizens to take part in state matters.
7. The vote for the draft law took place with infringements of the Constitution and Verkhovna Rada Regulations. The draft law was effectively voted on in an unknown version since the text prepared for the second reading with various proposals was not handed out to MPs. This is despite the fact that on 10 July 2010 the draft bill was sent for a repeat second reading since some of its norms did not comply with the Constitution.
The Law on a Nationwide Referendum is therefore in breach of Ukraine’s Constitution and European standards and was adopted with violations of parliamentary regulations. It will, if it comes into force, do irreparable damage to constitutionalism and Ukraine’s legal system.
The signatories therefore urge the President to use his power of veto.
The appeal has been signed by:
the Centre for Political and Legal Reform;
the Laboratory for Legislative Initiatives;
the Maidan Monitoring Information Centre;
Halya Coynash, KHPG
Andriy Lepak, Our Right (Lviv);
Donetsk Regional Branch of the Committee of Voters of Ukraine ;;
Iryna Fedets, sociologist
Oleksandr Pankiv, EBRD;
Taras Shamaida, Prostir Svobody’
The Lexfor Law Firm
The Civic Movement “We’re Europeans”
The Pylyp Orlyk Institute for Democracy
Volodymyr Shcherbachenko, East Ukrainian Centre for Civic Initiatives