Referendum: questions which remained without answers
09.12.2001
The all-Ukrainian referendum held by the people’s initiative on 16 April may be rightfully called the most important event in the social and political life of Ukraine. The questions of the referendum have been positively answered by the majority of Ukrainian people, and that can cause fundamental changes in the political landscape of the country which are difficult to anticipate.
The most important word as to the correspondence of the questions of the referendum to the Constitution of Ukraine was uttered by the Constitutional Court on 29 March. The six questions which every Ukrainian voter had to answer were as follows: 1) On the distrust to the Supreme Rada and disbanding it by the President; 2) On the pre-term suspension of the work of the Supreme Rada if the latter did not shape the majority within one month or does not accept the state budget within three months; 3) On constraining the deputies’ inviolability; 4) On the decrease of the number of MPs from 450 to 300; 5) On creating a two-chamber Parliament; 6) On adopting the Constitution by an all-Ukrainian referendum. Having considered the questions, the Constitutional Court of Ukraine, according to Article 157 of the Constitution, decided: to regard questions 2 – 5 corresponding to the Constitution. The Constitutional Court also decided that the results of the referendum will be not consultative, but obligatory for the consideration and adoption of the related decisions by state bodies.
To be exact, the process of voting began on 6 April. According to the law on all-Ukrainian and local referendums, the pre-term voting is permitted to those voters, who, due to good reasons, cannot vote on the appointed day. No confirmation of ‘good reasons’ was asked. According to the data of the Voters’ Committee, by 10 April, that is a week before the appointed day, 8–15% of voters had already given their voices (‘Vechirniy Kyiv’, 13 April). By the end of the work week in some regions of Ukraine above 35% had already managed to vote, and at some voting stations of Kharkiv the proportion of those who had voted before the term exceeded 90%. Mykhaylo Riabets, the head of the Central Voting Commission, said that on 16 April the 50% level that made the referendum valid, was reached by noon.
Thus, the all-Ukrainian referendum was not boycotted, although some political forces agitated for it. The boycott of the referendum was proposed both by leftish forces and by the nationalist right. Oleksandr Moroz, a leader of socialists, repeatedly declared that the fraction ‘The left center’ will ‘agitate to vote against all the questions or even to abstain from the participation in it’ (‘Molod Ukrainy’ of 31 March). This view was shared by Ukrainian communists. The communist party appealed the voters just to ignore the referendum. As Petro Simonenko, the leader of the communist party of Ukraine, explained, this appeal had the goal to prevent ‘deceive the people for the umpteenth time’ (‘Tovaryshch’, No. 14). The party ‘Ahead, Ukraine!’, which is not represented in the Supreme Rada and is centrist politically, appealed to the people to boycott the referendum (‘Silski visti’ of 4 April). Some local committees of ‘The Rukh’ and Ukrainian Nationalists agitated for the boycott.
Sociological polls showed that the appeals of boycott were vain. Ukrainian sociologists predicted the results of the referendum. Kyiv International Institute of sociology organized a poll on 16 – 27 March of 1900 pollees in all regions of Ukraine. By the results of the poll 63% of Ukrainian citizens intended to take part in the referendum, 26% intended not to participate and 11% had not made their minds yet. Other polls showed that the most difficult question was about creating a two-chamber Parliament. Only 23% of the pollees were prepared to answer this question positively. The ‘easiest’ question was the restriction of MPs inviolability: 83% of voters were ready to give the positive answer.
The results of the referendum after making them public amazed. Not only insufficiently informed skeptics, but the people itself. The level of uniformity of opinion and preparedness to drop the daily chores for taking part in the referendum appeared unexpectedly high. About 79% of voters took part in the referendum. The percent of positive answers to the four remaining questions was 85%, 89%, 90% and 82%, respectively.
Thus, the referendum has been successfully (for the administration) carried out. The happy end was correspondingly celebrated, but the main events seem just to be beginning. The matter is not only in the existence of difficult questions concerning the future organization of the system of the executive power. It is not clear whether the introduction of the two-chamber Parliament brings about the danger of separatism of the state. This is a topic of a separate complicated discussion. There is another difficult problem connected with the mechanism of the implementation of the referendum results into the space of the Ukrainian legislation. The correct correspondence with the constitutional norms in the process of implementation of the referendum results will determine the future rebuilding of Ukraine into the European structures and the internal organization and system of distribution of power within the state. Although, as some Ukrainian top figures affirm that ‘the Council of Europe is not the entire Europe’, the question of Ukrainian membership in the Council of Europe remains under danger. The reason is, for instance, that one of the main points of the resolution of the Council of Europe adopted at the completion of hearing on reforming power institutions in Ukraine, contains a recommendation to suspend the membership of Ukraine if the results of the referendum will be implemented by non-Constitutional means (‘Silski visti’ of 6 April).
Besides, it is very important to prevent use of the referendum as ‘a lancet directed against the responsible majority of the Supreme Rada’, as Stepan Gavrish, a vice-speaker of the Supreme Rada, expressed (‘Kievskie vedomosti’ of 7 April). It should not be directed against the Parliamentary minority too, we shall add from ourselves, protecting the entire system of the legislative power. Otherwise a system of distribution of power may appear with the Belarussian accent and we all know the consequences of Lukashenko’s style of government for his country.
So, we encounter a natural logical question: ‘What must be done with the referendum results, since, according to the decision of the Constitutional Court, the results are not consultative, but obligatory?’ The Constitution of Ukraine contains no statements about the consultative referendums, so the all-Ukrainian referendum of 16 April is not merely a sociological poll that cost Hr 30 million to the state budget. After the resolution of the Constitutional Court of 27 March: ‘The people’s will which will be revealed at the all-Ukrainian referendum proclaimed by the President of Ukraine after the people’s initiative, may not have consultative character. That is why if the people supported the statements of items 1, 2, 3, 4 of Article 2 of the Decree, then these statements have to be included into the Constitution of Ukraine’. According to the Constitution, as it is also pointed out in the resolution of the Constitutional Court, ‘the introduction of changes to the Constitution of Ukraine belongs to the power of the Supreme Rada of Ukraine’. It should be noted that, for instance, the referendum question about the introduction of the two-chamber Parliament has, as a consequence, introducing changes to at least 32 articles of the Constitution!
Such changes are very complicated from the juridical point of view. For example, in Article 44 of the law on the all-Ukrainian referendum it is stated that laws and decisions taken at a referendum after the official publication of the results by the Central Voting Commission must work immediately and be directly introduced into the legislation. Yet, nowadays most experts believe that all the decisions taken at the referendum must be approved by the Parliament, as it is written in the corresponding resolution of the Constitutional Court.
In this connection another important problem has a reason concerning the possibility of a constitutional crisis with the far reaching consequences. This very opinion was expressed by Roman Bessmertny, a permanent representative of the President in the Supreme Rada. Regarding the question of the implementation of the referendum results to the legislation of Ukraine, he remarked that the essence of the matter is such: ‘Today we have two positions. One verbalized by the resolution of the Constitutional Court and stating that the referendum results must be mandatory for all. Another — stating that the decision must be essentially adopted by the Parliament’. A similar position is shared by Viktor Medvedchuk, the first deputy of the speaker. In his opinion, it is impossible to give an unambiguous answer how to realize the referendum decisions (’Ukraina moloda’ of 12 April).
According to the decision of the Constitutional Court, the referendum results must be obligatorily considered and realized by the Parliament. The Supreme Rada has to take a decision by not less than 300 votes, since the matter concerns introducing changes to the Constitution. But it is very doubtful that such a number of supporters of changing the Constitution will be found. For today the Parliamentary (pro-Presidential) majority counts 276 MPs. The rest of MPs share a group with a negative attitude to the referendum in general and to each question of it. It is quite possible that the left, who appealed to boycott the referendum, will continue the boycott inside the Parliamentary walls. The communist fraction, the largest and , perhaps, the most disciplined fraction in the Parliament, counts 115 MPs, and they are ready to act against the introduction of the referendum results. One of the leaders of communists Stanislav Gurenko declared that ‘decision of the Constitutional Court about the referendum put the delayed-action mine. The referendum results are mandatory and must be introduced into the legislation and the Constitution. Such amendments must be introduced only by the Supreme Rada of Ukraine after repeated discussions and expertises by the Constitutional Court. For every decision not less than 300 MPs should vote, thus we expect a new stage of counterposition of the legislation and executive power.’ (‘Kommunist’, No. 14, April 2000). This prediction does not add optimism as to the fast and peaceful decision of the mentioned problems. On the other hand, the approval of all referendum questions by more than 80% citizens, who took part in the referendum, that is by a part of the electorate that voted for communists, makes communists to be careful.
Viktor Medvedchuk developing these considerations remarked that ‘as a lawyer I cannot predict what will happen if the Supreme Rada and the Central Voting Commission do not fulfill what will be decided at the referendum. This responsibility is not anticipated in any operating law’. (‘Golos Ukrainy’, 5 April 2000). There is some hope that the situation with the insufficient majority will be improved after electing 10 new MPs, which will occur 20 June. However, if the majority parties will manage to get all 10 new deputies, this will not be the guarantee of the success. It is rather difficult to predict, what will happen if the Parliament appears unable to implement the referendum results into the Ukrainian legislation and Constitution of Ukraine. Maybe, the Parliament will be disbanded, which is not stipulated by any legal act. Yet, we would like to believe the words of Volodymyr Lytvin, the head of the President’s administration, who said that in case when the Parliament appears unable to implement the referendum results, then Leonid Kuchma, as a guarantor of the Constitution, would act ‘reasonably and responsibly’ (‘Ukraina moloda’, 12 April). The guarantor of the Constitution declared in his turn that the current referendum would not be the last.
‘Research update’, UCIPR, No. 169 of 17 April 2000
The most important word as to the correspondence of the questions of the referendum to the Constitution of Ukraine was uttered by the Constitutional Court on 29 March. The six questions which every Ukrainian voter had to answer were as follows: 1) On the distrust to the Supreme Rada and disbanding it by the President; 2) On the pre-term suspension of the work of the Supreme Rada if the latter did not shape the majority within one month or does not accept the state budget within three months; 3) On constraining the deputies’ inviolability; 4) On the decrease of the number of MPs from 450 to 300; 5) On creating a two-chamber Parliament; 6) On adopting the Constitution by an all-Ukrainian referendum. Having considered the questions, the Constitutional Court of Ukraine, according to Article 157 of the Constitution, decided: to regard questions 2 – 5 corresponding to the Constitution. The Constitutional Court also decided that the results of the referendum will be not consultative, but obligatory for the consideration and adoption of the related decisions by state bodies.
To be exact, the process of voting began on 6 April. According to the law on all-Ukrainian and local referendums, the pre-term voting is permitted to those voters, who, due to good reasons, cannot vote on the appointed day. No confirmation of ‘good reasons’ was asked. According to the data of the Voters’ Committee, by 10 April, that is a week before the appointed day, 8–15% of voters had already given their voices (‘Vechirniy Kyiv’, 13 April). By the end of the work week in some regions of Ukraine above 35% had already managed to vote, and at some voting stations of Kharkiv the proportion of those who had voted before the term exceeded 90%. Mykhaylo Riabets, the head of the Central Voting Commission, said that on 16 April the 50% level that made the referendum valid, was reached by noon.
Thus, the all-Ukrainian referendum was not boycotted, although some political forces agitated for it. The boycott of the referendum was proposed both by leftish forces and by the nationalist right. Oleksandr Moroz, a leader of socialists, repeatedly declared that the fraction ‘The left center’ will ‘agitate to vote against all the questions or even to abstain from the participation in it’ (‘Molod Ukrainy’ of 31 March). This view was shared by Ukrainian communists. The communist party appealed the voters just to ignore the referendum. As Petro Simonenko, the leader of the communist party of Ukraine, explained, this appeal had the goal to prevent ‘deceive the people for the umpteenth time’ (‘Tovaryshch’, No. 14). The party ‘Ahead, Ukraine!’, which is not represented in the Supreme Rada and is centrist politically, appealed to the people to boycott the referendum (‘Silski visti’ of 4 April). Some local committees of ‘The Rukh’ and Ukrainian Nationalists agitated for the boycott.
Sociological polls showed that the appeals of boycott were vain. Ukrainian sociologists predicted the results of the referendum. Kyiv International Institute of sociology organized a poll on 16 – 27 March of 1900 pollees in all regions of Ukraine. By the results of the poll 63% of Ukrainian citizens intended to take part in the referendum, 26% intended not to participate and 11% had not made their minds yet. Other polls showed that the most difficult question was about creating a two-chamber Parliament. Only 23% of the pollees were prepared to answer this question positively. The ‘easiest’ question was the restriction of MPs inviolability: 83% of voters were ready to give the positive answer.
The results of the referendum after making them public amazed. Not only insufficiently informed skeptics, but the people itself. The level of uniformity of opinion and preparedness to drop the daily chores for taking part in the referendum appeared unexpectedly high. About 79% of voters took part in the referendum. The percent of positive answers to the four remaining questions was 85%, 89%, 90% and 82%, respectively.
Thus, the referendum has been successfully (for the administration) carried out. The happy end was correspondingly celebrated, but the main events seem just to be beginning. The matter is not only in the existence of difficult questions concerning the future organization of the system of the executive power. It is not clear whether the introduction of the two-chamber Parliament brings about the danger of separatism of the state. This is a topic of a separate complicated discussion. There is another difficult problem connected with the mechanism of the implementation of the referendum results into the space of the Ukrainian legislation. The correct correspondence with the constitutional norms in the process of implementation of the referendum results will determine the future rebuilding of Ukraine into the European structures and the internal organization and system of distribution of power within the state. Although, as some Ukrainian top figures affirm that ‘the Council of Europe is not the entire Europe’, the question of Ukrainian membership in the Council of Europe remains under danger. The reason is, for instance, that one of the main points of the resolution of the Council of Europe adopted at the completion of hearing on reforming power institutions in Ukraine, contains a recommendation to suspend the membership of Ukraine if the results of the referendum will be implemented by non-Constitutional means (‘Silski visti’ of 6 April).
Besides, it is very important to prevent use of the referendum as ‘a lancet directed against the responsible majority of the Supreme Rada’, as Stepan Gavrish, a vice-speaker of the Supreme Rada, expressed (‘Kievskie vedomosti’ of 7 April). It should not be directed against the Parliamentary minority too, we shall add from ourselves, protecting the entire system of the legislative power. Otherwise a system of distribution of power may appear with the Belarussian accent and we all know the consequences of Lukashenko’s style of government for his country.
So, we encounter a natural logical question: ‘What must be done with the referendum results, since, according to the decision of the Constitutional Court, the results are not consultative, but obligatory?’ The Constitution of Ukraine contains no statements about the consultative referendums, so the all-Ukrainian referendum of 16 April is not merely a sociological poll that cost Hr 30 million to the state budget. After the resolution of the Constitutional Court of 27 March: ‘The people’s will which will be revealed at the all-Ukrainian referendum proclaimed by the President of Ukraine after the people’s initiative, may not have consultative character. That is why if the people supported the statements of items 1, 2, 3, 4 of Article 2 of the Decree, then these statements have to be included into the Constitution of Ukraine’. According to the Constitution, as it is also pointed out in the resolution of the Constitutional Court, ‘the introduction of changes to the Constitution of Ukraine belongs to the power of the Supreme Rada of Ukraine’. It should be noted that, for instance, the referendum question about the introduction of the two-chamber Parliament has, as a consequence, introducing changes to at least 32 articles of the Constitution!
Such changes are very complicated from the juridical point of view. For example, in Article 44 of the law on the all-Ukrainian referendum it is stated that laws and decisions taken at a referendum after the official publication of the results by the Central Voting Commission must work immediately and be directly introduced into the legislation. Yet, nowadays most experts believe that all the decisions taken at the referendum must be approved by the Parliament, as it is written in the corresponding resolution of the Constitutional Court.
In this connection another important problem has a reason concerning the possibility of a constitutional crisis with the far reaching consequences. This very opinion was expressed by Roman Bessmertny, a permanent representative of the President in the Supreme Rada. Regarding the question of the implementation of the referendum results to the legislation of Ukraine, he remarked that the essence of the matter is such: ‘Today we have two positions. One verbalized by the resolution of the Constitutional Court and stating that the referendum results must be mandatory for all. Another — stating that the decision must be essentially adopted by the Parliament’. A similar position is shared by Viktor Medvedchuk, the first deputy of the speaker. In his opinion, it is impossible to give an unambiguous answer how to realize the referendum decisions (’Ukraina moloda’ of 12 April).
According to the decision of the Constitutional Court, the referendum results must be obligatorily considered and realized by the Parliament. The Supreme Rada has to take a decision by not less than 300 votes, since the matter concerns introducing changes to the Constitution. But it is very doubtful that such a number of supporters of changing the Constitution will be found. For today the Parliamentary (pro-Presidential) majority counts 276 MPs. The rest of MPs share a group with a negative attitude to the referendum in general and to each question of it. It is quite possible that the left, who appealed to boycott the referendum, will continue the boycott inside the Parliamentary walls. The communist fraction, the largest and , perhaps, the most disciplined fraction in the Parliament, counts 115 MPs, and they are ready to act against the introduction of the referendum results. One of the leaders of communists Stanislav Gurenko declared that ‘decision of the Constitutional Court about the referendum put the delayed-action mine. The referendum results are mandatory and must be introduced into the legislation and the Constitution. Such amendments must be introduced only by the Supreme Rada of Ukraine after repeated discussions and expertises by the Constitutional Court. For every decision not less than 300 MPs should vote, thus we expect a new stage of counterposition of the legislation and executive power.’ (‘Kommunist’, No. 14, April 2000). This prediction does not add optimism as to the fast and peaceful decision of the mentioned problems. On the other hand, the approval of all referendum questions by more than 80% citizens, who took part in the referendum, that is by a part of the electorate that voted for communists, makes communists to be careful.
Viktor Medvedchuk developing these considerations remarked that ‘as a lawyer I cannot predict what will happen if the Supreme Rada and the Central Voting Commission do not fulfill what will be decided at the referendum. This responsibility is not anticipated in any operating law’. (‘Golos Ukrainy’, 5 April 2000). There is some hope that the situation with the insufficient majority will be improved after electing 10 new MPs, which will occur 20 June. However, if the majority parties will manage to get all 10 new deputies, this will not be the guarantee of the success. It is rather difficult to predict, what will happen if the Parliament appears unable to implement the referendum results into the Ukrainian legislation and Constitution of Ukraine. Maybe, the Parliament will be disbanded, which is not stipulated by any legal act. Yet, we would like to believe the words of Volodymyr Lytvin, the head of the President’s administration, who said that in case when the Parliament appears unable to implement the referendum results, then Leonid Kuchma, as a guarantor of the Constitution, would act ‘reasonably and responsibly’ (‘Ukraina moloda’, 12 April). The guarantor of the Constitution declared in his turn that the current referendum would not be the last.
‘Research update’, UCIPR, No. 169 of 17 April 2000