Constitutional Fiddle

The timing of the Law on Referendums could have seemed merely inappropriate coinciding as it did with the protracted vote count and infringements which made the parliamentary elections anything but fair and democratic. In today’s Ukraine it appeared sinister. With 264 deputy cards (with or – mostly – without the relevant MP) the ruling majority suddenly passed a law which paves the way for changing the Constitution without such irritating restrictions as are provided by that same most fundamental document.

The page with details about the draft bill makes the abruptness of this move fully apparent.  All versions, analysis and comparative table are from 2010 when the law was sent back for amendments to be made before being submitted for a repeat second reading.  No amendments were made at all, however on 6 November 2012 the same draft law was adopted.

Attention abroad was largely focused on the increasingly dubious vote count, however there have been warning voices about this law within Ukraine.  The following is largely based on analysis by Ihor Koliushko and Yulya Kyrychenko, as well as others where cited. 

They believe the timing of the bill is no accident.  President Yanukovych did not get a constitutional majority (300 out of the 450 MPs) and they suggest he does not want to leave the fate of constitutional changes up to the new makeup of the Verkhovna Rada.

The situation, even given some of the moves taken over the last two and a half years, is unprecedented with the procedure for amendments to the Constitution being adopted in breach of Section XIII of the Constitution itself.

The draft law makes it possible to pass a new version of the Constitution; make amendments to the Constitution; revoke parts of it, etc, by putting the question to a national referendum. Neither the Verkhovna Rada nor the Constitutional Court is assigned a role in this.  “In the procedure for amendments to the Constitution established by the draft Law, entirely new people with authority appear, namely the President and the Central Election Commission. A declarative subject of constitutional law also appears – the Ukrainian people, while political parties and national civic organizations are not recognized as subjects of a national referendum.”

Lest the words suggest that this is a step towards power of the people, the authors point out that whether such a referendum is an instrument for people power or usurping of power by totalitarian dictators depends on two issues: what is put to the vote and how; and what the procedure is.  If a Constitution appears from somewhere, not having been adopted by a competent body, and is then, at the President’s decision, put to a vote in a referendum, this is an example of the latter, or power being usurped.

For a referendum to be called, there need to be 3 million signatures from two thirds of the country’s oblasts, with no less than 100 thousand signatures in any one region. The time scale seems breathtaking with the local authorities having five days to collect the requisite number of signatures and the Central Election Commission having five days to check the signatures and the documents, and to form commissions whose makeup is proposed by the authorities.  After this the President announces a referendum, the results of which are binding.

Viktor Musiyaka, one of the authors of the original Constitution, is scathing of the claim that this draft law meets the Council of Europe’s Venice Commission requirements.  The Venice Commission, he points out, recommends a limited number of issues so that people know what they’re voting for.  The law just passed states:

3.2  “Several issues from one or several of the subjects of an all-Ukrainian referendum may be put to referendum“.  These could be (one or several) of the following: adoption of a new Constitution; on change in territory of Ukraine; on adopting or revoking a law.

Legal analyst Volodymyr Fesenko, for example, thinks that Yanukovych could use a referendum to galvanize support during the next presidential elections.  A referendum, for example, could be held on adding another State language (clearly Russian). 

Worth repeating that this would bypass parliament and the Constitutional Court, while the outcome would be binding. 

It is also of great relevance to note that the CEC was responsible for some of the mechanisms which led to very worrying developments during the parliamentary elections, especially with the makeup of election commissions.  In fact, though, even without such concerns, it is difficult to understand how any body could do more than rubber stamp a petition of 3 million signatures in 5 days.  Koliushko and Kyrychenko, for example, ask whether the CEC would need to take into consideration such constitutional norms as the prohibition in Article 157 on amendments to the Constitution which restrict human rights and civil liberties, or that encroach upon Ukraine’s territorial integrity. If so, then 5 days to do what has up till now been the prerogative of the Constitutional Court is clearly absurd.  The same authors note the undemocratic procedure for the formation of district and precinct commissions for administering the referendum.  These would be formed by the CEC on the basis of submissions from the authorities at the particular level.  There is no procedure for changing the makeup of a commission at all, with this left to the CEC, although this must be stipulated by law. The degree to which the makeup of such commissions can be manipulated and the extent to which this may have affected the vote count in such electoral districts was all too clear during and immediately after the parliamentary elections.

One of the other aspects of the run-up to the latest elections which made it impossible to consider them fair was the degree to which the ruling party effectively controlled the media, including the State-owned UTV-1.  The authors note, without going into details, that there are no guidelines on campaigning etc.  With the present grip on the media, it is difficult to imagine how the majority of the population who glean information from television and perhaps local newspapers would have any chance of understanding the issues they were being asked to vote on.

It is very much to be feared that this is precisely the aim of this sudden legislative spurt