Referendums in Ukraine: Pitfalls of new Presidential Bill

Author : Natalia Lebed

Source : 112 Ukraine

Running for presidency, Volodymyr Zelensky promised that, first of all, a bill on democracy, that is, on an all-Ukrainian referendum, would be submitted to the Parliament on his initiative. The "first stage" lasted for a year, because only recently the text of the law was received by the parliament
21:49, 15 June 2020

President of Ukraine Volodymyr Zelensky
Official website of the President of Ukraine

What is the point?

Bill No. 3612 stipulates that citizens will be able to decide issues of national importance themselves, make amendments to sections I, III, XIII of the Constitution, repeal individual rules or laws in general, and change the borders of the country. The last phrase especially amuses.

So, at the All-Ukrainian referendum, it will be possible to change the sections of the Constitution of Ukraine on “general provisions”, on “elections and referendums”, on the procedure for amending the Basic Law, as well as redrawing individual laws.

But the remaining sections of the Constitution remain intact for the plebiscite – I mean “Rights, freedoms and duties of a person and a citizen”, “Verkhovna Rada of Ukraine”, “President of Ukraine”, “Cabinet of Ministers of Ukraine”, “Prosecutor's Office”, “Justice”, “Territorial structure” etc.

It is forbidden to raise issues in a referendum that are contrary to the Constitution of Ukraine and international standards (in particular, the Universal Declaration of Human Rights and the 1950 Convention), including those aimed at eliminating the independence of the state and violating its territorial integrity.

The results of the people’s will at the All-Ukrainian referendum do not require approval by any state body. A referendum is considered valid if at least 50% of citizens included in the State Register of Voters take part in the vote. The decision made on it takes effect 10 days after the publication of the results.

If the issue was not supported by referendum, then it will be possible to re-submit it only after a year. But the decision made can be amended no earlier than three years from the date of its adoption and exclusively through an all-Ukrainian referendum.

The bill also spelled out a ban on holding a plebiscite at the same time as regular or extraordinary national elections. Also, an all-Ukrainian referendum cannot be called if a military or emergency state is introduced in Ukraine or in some of its localities.

Interestingly, the document also provides for the possibility of electronic voting at an all-Ukrainian referendum. And the development of the corresponding procedure rests with the Central Election Commission. Actually, you can also vote for the referendum online: to maintain the initiative, it is enough to use an electronic digital signature.

Who can vote and how?

The All-Ukrainian referendum may have three initiators. These are: 1) the president, who appoints a plebiscite regarding changes to the three above-mentioned sections of the Constitution; 2) parliament, when it comes to changing the territory of the country; 3) the people - on all other issues. If the initiative goes “from below”, the head of state should listen to the popular voice and declare a referendum. But for this a number of conditions must be met.

First of all, in order to initiate a referendum, the country's population must form an initiative group. Such a group should consist of at least 60 citizens of Ukraine who, on the day of its creation, have the right to vote. And it is created at meetings of citizens in which at least 300 voters participate and to which the CEC sends its representative.

During the meeting, the wording of the issue to be submitted to the referendum should also be substantively presented. Then, within 7 days after the meeting, the authorized representative of the initiative group transfers the documents of the meetings signed by the chairman and secretary of the meeting to the CEC.

Consequently, the initiators begin the countdown of 60 days, during which they must collect the signatures of at least 3 million Ukrainian citizens with the right to vote, with at least 100 thousand signatures from 2/3 of 24 regions and the Autonomous Republic of Crimea, and also the cities of Sevastopol and Kyiv, that is, with 18 administrative-territorial units. The collected signatures will need to be submitted for verification to the CEC, which will then take the relevant resolution and hand it over to the president.

And here we are at the finish line. Having received all the documents, the president announces the date of the referendum. It should fall on the last Sunday of the 60-day period from the date of publication of the presidential decree. At this stage, the CEC re-enters the game, creates district commissions - in a word, it works according to a mechanism similar to that used during elections.

Interestingly, the referendum is preceded by the registration of political parties and public organizations as supporters or opponents of the referendum issue. The necessity is understandable without lengthy explanations. Citizens should receive comprehensive information on the essence of the issue that is submitted to a referendum, and it will come from both its “lawyers” and “prosecutors”.

But what about those parties or public organizations that do not speak out for or against the issues submitted to the referendum? They can also join the public monitoring of the referendum process without having the status of a supporter or opponent.

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Zelensky’s bill also provides for the possibility of campaigning (or counter-campaigning) regarding issues submitted to the referendum. Moreover, such agitation concerns not only the stage when it is necessary to urge citizens to come to a referendum, but also the stage of collecting signatures.

A mandatory requirement for any type of campaign is the creation of a foundation of an initiative group, registered as a group of supporters or opponents. All expenses of campaign funds should be made exclusively from these money. However, citizens of Ukraine can also join the campaign for or against the referendum, but on a voluntary basis, that is, without spending their own funds.

And finally, another important point. Why, in the opinion of the author of the bill, only one question can be put to the All-Ukrainian referendum.

Space for manipulation

“So the president suggests holding an all-Ukrainian referendum at the initiative of the people if at least 3 million voters speak for it. But locally, for example, Kyiv and Odesa cannot hold a referendum. Signatures must be collected at least in 2 / 3 regions of Ukraine and no less than 100 thousand in each of the regions, so a conspiracy of “feudal lords” is unlikely, but the possibility for manipulation remains.

The question is: what if 3 million signatures are collected, and the government does not appoint a referendum? It does not commit any illegal actions, but simply ... does not appoint. And if the president can at least formally make claims, then what about MPs? They may simply not give the right number of votes. It’s a collective sabotage, but there is no real responsibility for it. So, if the MPs do not like the topic of the referendum, then the question will be freezed. This moment needs to be worked out," Kyrylo Sazonov advises.

And he adds: “Another point I have in question. According to the bill, at least 50% of voters must participate for a referendum to take place. That is, the turnout threshold is decent, which means that the question should be an important minimum for every second Ukrainian. For a positive decision, more than half of the voters must vote, that is, theoretically, 25% of Ukrainian voters, plus one, can change the Constitution.

The bill proposes that only one issue could be put to the referendum at a time. But why one? A referendum, like an election, is not a cheap process. And if we have decided to get together at least half of the country, and if the commissions and the CEC have gathered, then why not solve several urgent issues at once? Of course, there is a risk in changes to this norm. For the sake of 3 million votes, referendum organizers can put a dozen questions into the draft. But how will they find the voices of half? In general, the MPs have something to work on," Sazonov summarizes.

Territorial nuances

The expert is right: the MPs will really have something to work on. First of all, over how to reconcile what is not consistent? The bill declares the possibility of submitting to a referendum issues of changing the territory of Ukraine and at the same time blocks issues aimed at the destruction of our territorial integrity.

“The issue of territories is spelled out in the Constitution. And it is closed by the Constitution itself. That is, the authors of the draft referendum bill should not proceed from the current situation, not from the Donbas, but from basic and fundamental things. Otherwise, their document will go into the clinch with the Constitution. Why then should they do it just like that? I don’t think that it was about giving Donbas to Russia, etc. Most likely, this is just another populist step. And, finally, referendum decisions may not be implemented, as was in the case with the 2000 referendum,”- comments deputy director of the Ukrainian Institute for the Study of Extremism Bogdan Petrenko.

However, he also suggests that the special status of Donbas might be the issue for a referendum. This does not seem to be a violation of territorial integrity, but simply a change in the principle of functioning of part of our territory.

"The authorities do not want to take on unnecessary responsibility. But it is constantly pressured by a layer of patriotic passionaries. It is narrow, this layer, but very active. And it draws red lines of power to the authorities. And just like the authorities transfer responsibility for the unpopular decisions in the economy and in politics to the IMF, it can shift the responsibility to the referendum participants. Theoretically, Ukrainians can vote for the special status of ORDLO - everything will depend on how the question is formulated. If you associate it with the onset of peace, people can vote first of all for peace, and not for the separation of Donbas, etc. Manipulation in a referendum can be the key to getting the right answers," says Petrenko.

“Perhaps the referendum bill was just conceived solely for the sake of this“ territorial ”clause,” adds Vadym Karasev, director of the Institute for Global Strategies. “Indeed, a tax referendum is impossible, referendums on NATO and the EU will not be held, because they will only split society. What remains? An administrative-territorial structure issue."

He also notes that “with this bill, the authorities are trying to shift the responsibility onto people. The elite and the authorities are the elite and the authorities, in order to take responsibility for difficult and inconsistent decisions that only history will evaluate. If, however, they propose to resolve the issue of ORDLO in a referendum, it will mean that our leaders are not striving to get into history."

However, Karasev has one more assumption. It’s not necessary, he says, that the authorities are seeking a positive answer to the question regarding the special status of Donbas.

“Perhaps the plan“ B ”is behind the mention of territorial issues in the bill. The question can be formulated as follows: Do we need the reintegration of Donbas? And get a negative answer. After all, it does not have to be“ yes. ”Maybe“ no. ”And it will be a way out if Minsk doesn’t work. Well, we don’t forget about the administrative-territorial reform. It continues, some Hungarian regions are being created in Transcarpathia, and there, maybe in Bukovina, the Romanians will appear, and it can also become a matter in a referendum, "says the political analyst.

But the above-mentioned Kyrylo Sazonov notes that the point here is not at all in Transcarpathia, but in Crimea. "You can put the Crimea issue to a referendum. That is, vote for the fact that Crimea is part of Ukraine. This will create additional pressure on Russia during all kinds of negotiations," he said.

“Any question can be submitted to a referendum, if it is formulated correctly. That is, the one who formulates the question is already doing half the work,” Sazonov adds. “But what is written in the bill as of today is it’s only a general outline that exists long before the first reading. The territorial issue will be discussed, but I think that the possibility to surrender part of Ukraine is not even spoken out. Therefore, when it comes to the first reading, this item will be spelled out as clearly and unequivocally as possible."

From the history of the issue

Any reference book on the recent history of Ukraine will say that in the last 30 years we have had only two referendums - the above-mentioned plebiscite of 2000 (held at the initiative of Kuchma and never implemented by the Verkhovna Rada), as well as the very first referendum of 1991 the year that legitimized the independence of Ukraine proclaimed by parliament.

But it is very important to mention another, so to speak, “zero” referendum. The only one question was asked there, formulated as follows: "Do you consider it necessary to maintain the Union of Soviet Socialist Republics as a renewed federation of equal sovereign republics, in which human rights and freedoms of any nationality will be fully guaranteed?" Among the population of Ukraine, 70.2% of citizens answered this question positively. That was March 17, 1991.

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In the same year, but on December 1, another referendum was held with the question “Do you confirm the Declaration of Independence of Ukraine?”, Where 90.32% said “yes”. This, in fact, is a very interesting illustration of how the answer of the respondents depends on the correctly formulated question, as well as on the correctly selected time when this question is posed.

But back to lawmaking as such. Attempts to amend the legislation regarding the conduct of the All-Ukrainian referendum were repeated. So, in 2012, the Verkhovna Rada already adopted the Law of Ukraine "On the All-Ukrainian Referendum," registered in 2010 and later recognized as unconstitutional.

There were attempts to pass a law on the referendum in this parliamentary convocation. The Verkhovna Rada registered three legislative initiatives on this issue. But one bill of authorship of the Batkivshchyna MPs, which regulates only the issues of the All-Ukrainian referendum (without prescribing the format for holding local one), was returned for revision.

Bogdan Petrenko draws the line under everything said about the All-Ukrainian referendum: “On the one hand, we have democracy. And there is a need to provide voters with the opportunity to exercise their rights more broadly. On the other, we are dominated by populism. The authorities are not trying to shape public opinion, and only plays along with hit. The government as such has lost what is its basis as an element of statehood: it has lost its focus. And, as long as we don’t have this core, it’s too early for us to pass through the plebiscite decisions that concern the most important fundamental issues. "

“For example,” he says, “let’s take the NATO question. If we put this question through a referendum right now, we’ll get the answer that our population is not ready for NATO. About half of those who decide will vote in favor, and the other half will vote against. In conditions of war, putting provocative issues to a referendum is a bad idea. ”

But in general, according to Petrenko, the presidential bill “has too many inconsistencies and blunders. Perhaps the referendum bill will be adopted just like the law on impeachment at one time: it seems to exist, but in fact it does not, because de facto it doesn’t work. "

Well, this option cannot be ruled out. It is a very Ukrainian style: to pass a law that does not work, but is available. Just in case somebody will search for it, but not for the good of the country.

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