Since the head of state didn't specify the legal grounds for such initiative, it should be divided into two components:
- what has already happened - is the announcement of a nationwide poll by the President;
- what may happen - is a nationwide poll.
1. Announcement (initiation) of a nationwide poll by the President.
Ukrainian legislation does not have any regulations on initiation or announcement of a nationwide poll by the head of state.
As long as there is no legal ground and documentation (in the form of a decree or order) of an announcement (initiation) of the national poll by the President, the placement of information about this poll on official resources of the head of state mean that the initiation subject is not an individual, but the highest elected official of the state - the President of Ukraine. According to Article 19(2) and Article 106 of the Constitution, the head of state is obliged to act only on the basis of, within the limits of authority, and in the manner stipulated by the Constitution. In short, the President of Ukraine has only powers that are defined by the Constitution, including those established in Article 106, and they do not give the right to announce (initiate) a national poll. This approach to understanding of the principle of exhaustiveness of constitutional powers is demonstrated in one of the latest decisions of the Constitutional Court of Ukraine of 16 September 2020 #11-р / 2020. However, in a separate opinion to this decision, Judge V.V. Lemak states that in terms of inherent powers doctrine, the President of Ukraine exercises other powers arising from the organic nature and constitutional role of the President, if they are legal and do not contradict fundamental constitutional principles (separation of powers, democracy, respect for human rights). Given the constitutional nature of the institution of the President as a guarantor of human and civil rights and freedoms, some may suggest that such initiation of a poll could be an implementation of the principle of democracy. However, the judge emphasized, the inherent powers doctrine warns against too broad and arbitrary understanding of it, turning it into a manipulation of constitutional regulations, which could hazard the essence of the Constitution of Ukraine (limitation of public power aimed to protect human rights).
The closest here is the authority in the field of democracy, particularly the announcement of a national referendum initiated by the people. However, as long as it is clearly defined and does not contain open wording, the President is not entitled to announce or initiate a public opinion poll in this way, based on the Constitution.
At the same time, given both the Constitution and laws of Ukraine do not provide any legal procedure for announcing (initiating) such poll by the President, as well as its realization, such actions of the President may indicate a possible violation of constitutional powers.
2. What may happen, or what we know about the President's initiative to conduct a national poll.
1) What has the President initiated? A national poll.
It should be noted that according to Article 5 of the Constitution of Ukraine, the people can exercise power directly, i.e. through elections, referendums, peaceful assemblies, collective appeals (petitions), local initiatives, public hearings, as well as through independent civil associations (house, street, neighborhood committees, etc.) and others. This list is not exhaustive. At the same time, any of these forms of direct democracy is realized in line with the Constitution and Laws of Ukraine. However, the Constitution of Ukraine, the Election Code of Ukraine, or any other law do not provide a procedure for holding a national poll as a form of democracy realized by Ukrainian people.
2) Which form will the poll have? It is unknown, but the media and experts suggest it is going to he a public opinion poll. The question about its methodology and representation is also open.
3) When and who will realize the poll? On the Election Day. It is now unknown who will conduct the poll. Some sources say it will be volunteers, but do not mention the organization.
It should be noted that members of election commissions are not allowed to conduct such polls. Their responsibilities are clearly defined by the Election Code and do not include polls.
4) Where will the poll take place? At polling stations. A polling station is the territory where the voters reside (have the corresponding polling address and are included in the voter list) and vote. Voting within a polling station may take place either at polling premises or at the place of residence.
Given that the President did not say exactly where such a poll will take place, various sources have publicly specified later that the poll will be realized outside of polling premises and the CEC will not organize it.
Nevertheless, we emphasize once more that there is no legal ground for organization of the poll at polling premises. Such actions, in case they are present, can negatively impact the election process and, therefore, must not be allowed. Only commission members, official observers, candidates, media representatives and voters are allowed to be present inside of polling premises, and only for a period necessary to exercise their rights or perform their duties under the law. For example, volunteers who are not registered as voters at a given polling station do not have the right to be present inside it, and those registered cannot realize a public poll because it doesn't belong to the exercise of his/her voting rights. Beside that, such a poll may interfere with the legal voting process.
5) Who will answer the questions? The President said in his video address that the poll would be conducted among Ukrainian citizens, but not all Ukrainian citizens are voters. Therefore, the question of its target audience also remains open.
6) What will be the questions? The national poll will consist of 5 questions, to be announced one per day before the Election Day. Two questions have already been published on website of the President on 14 and 15 October 2020: 1) Should corruption on a particularly large scale be punished with life imprisonment? ; 2) Do you support the creation of a free economic zone in Donbass? Although questions are still unknown, their wording must not contain campaigning or hidden urges to vote for cells of the party whose political/ideological leader is the President. Otherwise, they may be classified as the violation, particularly as campaigning outside the deadlines set by the Electoral Code.
7) Who will finance it? There is no official information yet. However, Chairman of the Verkhovna Rada of Ukraine Dmytro Razumkov has emphasized to the media that currently the State Budget of Ukraine and the adopted amendments do not provide funds for the poll. The legal assessment of this national poll will depend on sources of its funding. If the poll, which is promoted by the President himself, will be financed by private donors, it may have features of political corruption.
8) What are the consequences? According to the President's website, such poll is not going to have any direct legal consequences. However, it a priori can not have any legal consequences, and can not be taken as the will of the people, because the legislation does not contain any requirement for consideration or disregard of any public poll. Thus, we warn against any manipulations related to the results of this poll and replacing the institution of a referendum with it.
9) Why conduct such a poll at all? According to the Deputy Chairman of The Verkhovna Rada of Ukraine Ruslan Stefanchuk, “The all-Ukrainian poll is a sample of the referendum so that we can determine which questions are important for the people of Ukraine and what is their opinion on the raised issues. Some of these questions may even be discussed in the future and initiated in a referendum." We should mention here that the procedure for initiation of a national referendum on initiative of the people is established by Article 72(2) of the Constitution of Ukraine, which says that an all-Ukrainian referendum is initiated by the people on demand of not less than three million citizens of Ukraine, who have the right to vote, provided that the signatures are collected in at least two-thirds of oblasts, and at least one hundred thousand signatures per each oblast. Such a referendum is announced by the President of Ukraine.
3. Poll and Covid-19.
While the state doesn't provide comprehensive measures aimed to ensure safe voting in local elections, it would be an extra load on epidemiological situation in the country if a mass event like opinion poll is held on the Election Day. OPORA calls on the President of Ukraine, the Office of the President of Ukraine and other organizers of this poll to publicly announce their position concerning this mass event and safe measures for its realization, and name the sources of financing on the corresponding measures against the spread of disease.
4. Position of the CEC and bill #4043.
Facebook page of the Central Election Commission published a comment from the CEC Chairman Oleh Didenko: "The CEC is doing everything possible and impossible to ensure that the October 25 elections are organized properly despite the pandemic. Elections will be held in line with the Election Code, and the CEC doesn't participate in any way in the organization of the public opinion poll. It seems that the President's initiative will not be based on electoral legislation, and details about this initiative, particularly its form of realization, I we all will probably know in the nearest future."
At the same time, there is draft law #4043 on Amendments to the Law of Ukraine on the Central Election Commission concerning Public Opinion Polls registered in the Parliament. According to this bill, the CEC may be authorized to prepare and conduct public opinion polls in case the Cabinet of Ministers of Ukraine decides to conduct such a poll. It should be noted that it was proposed to allow such polls on the Election Day in national or local elections, like those initiated by the President now.
5. Recommendations to the President of Ukraine Volodymyr Zelenskyi:
- To ensure the voting rights of Ukrainian citizens via public demonstration of equal attitude to citizens having different political positions and views, in accordance with Article 102 of the Constitution of Ukraine.
- To ensure that the activities of the President of Ukraine, other officials and authorities are based on, within the limits of authority, and in the manner stipulated by the Constitution and laws of Ukraine. These guarantees are vitally important to ensure the competitiveness of election process, and political process as a whole.
- To promptly publish a complete methodology for organization and conduct of the poll, initiated by the President of Ukraine, aimed to enable governmental and non-governmental institutions to forecast its influence on legal course of local elections, as well as on law enforcement and measures against the spread of COVID-2019.
- To ensure that budgetary resources are not used for realization of the corresponding poll in any form (direct or indirect) and ensure full transparency of funding sources for the initiative.
- Do not allow campaigning in support of electoral subjects during the organization of the poll on the eve and during the Election Day. Such campaigning would be a violation of Ukrainian laws guaranteeing equal opportunities for candidates, as well as transparency of their campaign financing.
- To abandon an already existing practice of using slogans and election program of the Servant of the People party, or any other political force, as well as its local cells, during the promotion, organization and realization of the poll initiated by the President of Ukraine.