“This important issue should necessarily be submitted to a referendum” – we often hear such statements from high-ranking officials. However, many Ukrainian people are convinced that the authorities will still ignore their opinion. The fears are reasonable because there is no way to hold the plebiscite in our state now. The reason is simple: there are no current laws on referendums in Ukraine.
The threat of usurpation
According to the adopted during the presidency of Yanukovych in November 2012, the Law “On All-Ukrainian Referendum” No. 5475-VI was never held a single plebiscite. After the Revolution of Dignity, the public demanded that President Poroshenko and the Parliament abolish it through a pro-Moscow content and the power to provide manipulative referendums. In December 2014 people’s deputies sent a corresponding submission to the Constitutional Court of Ukraine. And in April this year, the Constitutional Court recognized the Law as unconstitutional. Was this document so terrible?
“Literally on the last day of the sixth convocation, the majority of President Yanukovych passed a law that would help Yanukovych make legislative decisions in the country, in fact, bypassing the Parliament, Svitlana Zalishchuk, the People’s Deputy of Ukraine, told to Opinion. “Any decision could be taken, for example, on the election of the President by the Parliament, amendments to the Constitution, cancellation of laws and the like. That is, the role of the Parliament was leveled, and for the President excessive opportunities of monopolization, usurpation of power was created”.
The law was dragged first of all so that the presidential vertical could form and monitor electoral commissions for holding referendums. Thus, the results of plebiscites would completely depend on the administrative resource. Nor was there a right of contracting, it was only about campaigning for a referendum. However, the “draconian” law was canceled, but what in return?
More than three years ago, on June 23, 2015, the Verkhovna Rada registered “The Draft Law on the All-Ukrainian Referendum” No. 2145a, initiated by seventeen people’s deputies. True, it was included in the agenda only in March this year. At the eighth session this voluminous document, 130 pages long, did not reach the field of view of the people’s deputies. According to Svitlana Zalishchuk, one of its initiators, the bill is still in the profile Committee.
“It seems that no one is going to consider it yet,” Natalya Novak, the member of the Verkhovna Rada Committee on Legal Policy and Justice, said to Opinion. “At least the Chairman of the Committee considers the projects if there is a command from the Presidential Administration. If there is a command for the Supreme Anti-Corruption Court – we do SACC, if they said the judicial reform – we do it. In the past, we began to consider the bill on the referendum but did not return to it. Perhaps this should be done at working groups, with the involvement of the public”.
“I do not know about the intentions of the deputies, but the bill is very relevant because in Ukraine there is no legislative regulation on organizing referendums,” Andrii Magera, the Deputy Chairman of the CEC of Ukraine, noted to Opinion. “There is a complete gap on this issue, which can be closed only by legislation and nothing else – neither by CEC nor by the President”.
Democracy and authoritarianism
A strange situation has been developing. We are assured of the alleged compliance with democratic norms in Ukraine, and the electoral processes in the state are provided by the CEC, overdue for the fifth consecutive year. The Verkhovna Rada during the eighth session failed to put an end to the history with the renewal of the CEC.
The situation with the all-Ukrainian referendum is not better. Citizens are deprived of a legitimate opportunity to express themselves on the topical issues, although politicians occasionally like to emphasize the importance of the people’s opinion. Is it the joining NATO (Opinion’s poll at the end of the article indicates that it is the most in demand), or the status of the Russian language, or the amendments to the Constitution, or the abolition of the moratorium on the sale of agricultural land.
“All-Ukrainian and local referendum institutes are needed,” Oleksii Garan, the professor at the National University “”Kyiv-Mohyla Academy”, the scientific director of the “Democratic Initiatives” Foundation named after Ilko Kucheriv, said to Opinion. “However, we must understand that referendum institution can be used both for a democratic purpose, and for authoritarian leaders or people, who are trying to establish authoritarianism in the country. It is very important who formulates the question, how it is carried out”.
For example, at the All-Union referendum in the spring of 1991, the question was mixed together: do you consider it necessary to preserve the USSR as a renewed federation of equal sovereign republics, in which the rights and freedoms of a person of any nationality will be fully guaranteed? Such formulations only confuse society. One cannot miss the all-Ukrainian plebiscite of 2000, any decision of which was never implemented.
“The referendum was aimed at establishing the authoritarian power of President Kuchma in Ukraine,” Oleksii Garan said. “Six questions were raised, and the Constitutional Court declared the first and the sixth ones unconstitutional. The first one: about mistrust of the Verkhovna Rada and the introduction of corresponding changes in the Constitution. And the sixth question was formulated as follows: are you in favor of adopting a new Constitution in a referendum? That is, bypassing the Parliament. The CC said – “no”, the first and the sixth questions contradict the Constitution, and therefore they withdrew them.
There are other questions left, they are also aimed at expanding the power of the President. And Kuchma won a referendum, which was held according to the best Soviet traditions. Then the Constitutional Court said that it is impossible to introduce these changes in the Constitution. Only under the constitutional procedure, and it is spelled out quite clearly – you need two thirds of the votes in the Parliament. Kuchma could not collect them, he did not have enough votes. The decision of the Constitutional Court became a protector for the concentration of power in the hands of the President”.
First – the deputies, then – the people
Considering the previous experience in holding referendums and problems with the legislation in this form of will expression, it is obviously necessary to focus on a bill that would make manipulations, authoritarian manifestations and other negative things impossible. Actually, the project No. 2145a, according to the experts, is about this.
“It is very important that it clearly defines the subject: it should be only one issue, the requirements for this issue should be prescribed, it should not be manipulated and it provides for a clear answer – “yes” or “no”, Yuliya Kyrychenko, the expert of the Center of Political and Legal Reforms, said to Opinion. “In order not to repeat the practice of 1991, when in March the people said that they want to be part of the USSR, and on December 1 – we are an independent state. This was due to a manipulative issue. The manipulative question was raised also on pseudo-referendums in the Crimea”.
Manipulations are not excluded on the forthcoming plebiscite. The threat comes in particular from the pro-Russian forces, who coordinate their actions with the aggressor state. The wave of their initiatives can be aimed at destabilizing the situation in the country. For example, with the violation of the speech question or the topic of peace. And then the referendum from the instrument of democracy risks turning into weapons, harming the state. Harm can also be unintended, with the unskillful use of this tool.
“There are many questions, how to implement changes in the Constitution. We hear, let’s do it through a referendum,” Oleksii Garan has told. “There is a danger here, because if we introduce the Constitution through a referendum, bypassing the Parliament, we can get an undemocratic Constitution. We do not know who will initiate it, how it will be formulated. And in general, when its text is submitted to a referendum, the pensioner does not know much about what will be written in Article 61 or 63.
Therefore, the optimal adoption of the Constitution is the adoption by the Parliament, and then its approval by referendum. In this sense, the Act of proclaiming Ukraine’s independence in 1991 was politically and legally impeccable. The Verkhovna Rada voted for it, but “Rukh” members, Chornovil, Lukyanenko rightly remarked: this is not enough, because the former Communists voted for independence, but it is necessary to show the will of the Ukrainian people. And then, this decision was passed through a referendum, which was given a clear question – “for” or “against”.
There is no law, but referendums are continuing
There is also no legislation on the local referendum in Ukraine. It was canceled during the time of Yanukovych’s presidency. How did this happen?
“Among the All-Ukrainian and Local Referendums were approved only the all-Ukrainian one,” Yuliya Kyrychenko explained. “Accordingly, the procedure for holding local referendums is absent since November 2012. And the law on local referendums is also very necessary, taking into account the tendencies for decentralization, self-organization of the population, solving community issues. But we must understand that the holding of national and local referendums is an extremely different procedure, and two separate laws should be adopted, because we are talking about the different subjects and the principles of forming commissions”.
Relevant draft laws on the local referendum are also registered in the Verkhovna Rada. It is not easy to formulate a question for them. They cannot concern national problems (state budget, federalization of the country, accession to NATO or the EU) in any way. A paradox, but despite the lack of relevant legislation, in the media, you can find information about holding local referendums. How is this possible: there is no legislation, but referendums are continuing?
“Recently, both the local elections and the elections in the Individual Territorial Communities have shown that parallel to the elections of the city and rural heads, local self-government bodies conduct local referendums,” Oleksii Koshel, the Chairman of the Board of the Voters Committee of Ukraine, assured Opinion. “The issues are diverse: infrastructure, the construction of new iconic objects etc. I do not know the statistics, I think that hardly anyone led it, because this is not the competence of the CEC, as legally these “referendums” are ordinary polls. However, there are hundreds of them. This means that self-government gave a clear signal – it is necessary to unblock the legislative base for holding local referendums. This is an effective tool of democracy, which we, unfortunately, do not use now”.
According to the experts, the adoption of the relevant legislation on referendums is unlikely even after tanned deputies return from summer holidays, that is, at the ninth session of the Verkhovna Rada. It so happened that the elections in Ukraine (and the sighs of the presidential and parliamentary campaigns are becoming more intense) are the cornerstone for which all the vital issues accumulated in society are pushed away.
What really worries Ukrainians?
Opinion asked the well-known compatriots: “What is the urgent issue to be put to a referendum in Ukraine?”
Oleksandr Sagan, religious scholar, philosopher:
“Regarding joining NATO. It is needed because there is such a procedure. This is the basic component of our security, since, with all our might, the Russian Federation’s army is quantitatively and qualitatively predominant. NATO standards will change not only the army, but also the socio-political life of Ukraine, as happened with other European post-Soviet countries”.
Tamara Gundorova, Doctor of Science, literary critic:
“Referendums are needed, and for this, it is necessary to produce and preach a culture of referendums among the population. True, we traditionally have hierarchical thinking and naivety. We vote for the populists and believe them, but there is not enough critical thinking. We are not going to be another Switzerland. And I would call the trust to the President a vital issue for a referendum”.
Raul Chilachava, former Ambassador of Ukraine to Latvia, writer, academician:
“It is necessary to hold a nationwide referendum on full membership in NATO. Both external opponents and internal opponents of the long-declared goal should hear from the population of the country a clear answer: “yes” or “no”. This will put an end to the endless insinuations and show the real picture: the Ukrainian people are really striving for the North Atlantic Alliance, or it is only an invention of nationalist politicians. The four-year war in Donbas and the Kremlin’s constant aggressive statements about the pro-NATO course of the Ukrainian state is a weighty argument in favor of the fact that there will be more supporters of joining NATO. Even if the opposite happens, we would know with whom and how to work in order to change the situation. The referendum still does not have the force of law, and the path to this strategic goal is not close”.
Myroslava Barchuk, journalist, TV presenter:
“I do not think that the referendum is topical in Ukraine. In such an immature and easily manipulated society as ours, a referendum can be used as a technology for the political purposes of individual politicians or groups”.
Taras Marusyk, the expert on language policy, journalist, translator from French:
“If during the Russian-Ukrainian war there is a need to hold a referendum, the vital is concerning the joining NATO. Especially in the light of Putin’s words If Ukraine and Georgia are accepted as members of NATO, then the world community will regret it very much. The answer should dislodge the possibility of the Kremlin to manipulate in this matter. But we have a culture of referendums and issues of implementing legislation at a very low level. If the decision of the Constitutional Court is not carried out, then what kind of advisory referendum can be? It will not have consequences. But NATO is a topical issue. So is the legality of the annexation of the Crimea and the armed invasion of the Russian Federation to the east of Ukraine”.
By Viktor Tsvilikhovsky