11.09.2013 | Halya Coynash

Manipulating the Referendum Question


During a television interview at the end of August, President Yanukovych stated that a referendum on whether to join the EU or the Customs Union would inevitably be required. This was reported as widely as his equally vague assurances that all conditions for the EU-Ukraine Association Agreement would be met.  

The first statement was both meaningless, and highly manipulative.  Nobody is inviting Ukraine to join the EU while the failure of Yanukovych’s regime to implement far less stringent EU demands continues to place the vital Association Agreement in very real jeopardy.

Since all public opinion polls have shown a majority in favour of greater European integration, any talk of such a referendum can only be aimed at switching the question around. 

The suspicion that the President is trying to shift the blame if the Association Agreement is not signed, and to keep all options open is only strengthened by apparent rebellion shown by some Party of the Regions MPs in the last week or so.  There are a number of Regions Party MPs with strong pro-Russian leanings. Vadim Kolesnichenko is notorious for aping every legislative move made in Russia, including a law against so-called “promotion of homosexuality”.  Neither he nor his Regions Party colleagues have, however, given any grounds over the last three years for suspecting even the faintest whiff of independent thinking, let alone a principled stand forcing them to vote against their party. 

The Communist Party has also voted to the last deputy card with the ruling party over the past three years.  On the other hand, the serious cognitive dissonance such collaboration induces in supporters makes any opportunity for Russia-supporting populist measures alluring. 

It is interesting that the Communists’ plan to launch calls for a referendum on joining the Customs Union was stopped by a ruling from the Kyiv District Administrative Court on 2 September.  This not only banned the planned meeting on 8 September, but also prohibited the Central Election Commission from sending a representative which would deprive any gathering which did take place of any legal force.  The court claimed that Ukraine’s “European integration vector is fixed in a number of legislative acts and therefore organizing a referendum on Ukraine joining the Customs Union does not comply with the requirements of Ukraine’s legislation”.  This correlates badly with Yanukovych’s remarks, not to mention a number of constitutional rights, however that’s all in the future at which point such arguments will presumably have been shelved.   

At the moment, then, a referendum on the subject is not planned.  Judging by the court’s questionable arguments, it can be assumed that no referendum not initiated by the ruling party is likely to get off the ground.  There are equally good grounds for anticipating that the results of the referendum will not disappoint the ruling party. 

This predictability is one of the reasons for strong opposition to the Law on National Referendums. The law was passed on 6 November 2012 while attention within the country and abroad was focused on parliamentary election vote-counting irregularities.  The very draft law infringes regulations since all documentation was from July 2010.  At that time it was sent back for reworking since some of the norms were in breach of the Constitution.  They remained so, and yet the same document was pulled out – and quickly “adopted” on 6 November. It was, in fact, voted for by a small number of MPs who used their party colleagues’ cards to cast “votes” on their behalf in (regrettably standard) breach of the Constitution. None of this nor widespread calls to veto the bill deterred the President from signing it into law on 27 November.  

The law allows for a referendum to change the Constitution without receiving the constitutionally required two-thirds majority in parliament.  The ruling party cannot muster the requisite 300 votes without support from the opposition, making the prospect of bypassing parliament undoubtedly alluring.

The opinion provided on the law by the Council of Europe’s Venice Commission was altogether damning, but the greatest concern was expressed specifically over the possibility of introducing amendments to the Constitution via a referendum.  Venice Commission Secretary Thomas Markert told the Deutsche Welle Ukrainian Service that the opinion was probably one of the most critical ever issued, He believes it extremely dangerous for the stability of the country if effectively anything can be changed by means of a referendum.

Many of the other concerns voiced by the Venice Commission and by analysts and NGOs within Ukraine concern the possibilities for manipulation.  The referendum can be on a number of issues, with no control over how these are worded or grouped together. People could quite simply not understand what they were voting for. There are no regulations on public funding and campaigning, and no guarantees of equal access to the media of all interested parties.  The State authorities and bodies of local self-government will exert enormous influence at almost all levels.  

Since the result of a referendum would be binding, it is particularly significant that there is no minimum turnout. 

As the Law on National Referendum stands at present, the chances are stacked against a result not sought by those in power, and this could include fundamental changes to the Constitution.  Even with the best mechanisms in place, this would create worrying scope for abuse.  In Ukraine’s circumstances, the danger is immense. 

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