On January, 26, 2021, the Verkhovna Rada of Ukraine cast the 255 votes of MPs to pass the draft Law of Ukraine “On the All-Ukrainian Referendum” (no 3612) in the second reading, and in whole. The draft law was developed by the parliament’s working group of the people’s deputies of Ukraine, representatives of non-governmental and academic organizations. Upon the formal request for feedback submitted by the Verkhovna Rada of Ukraine, the draft law received a joint expert opinion from the Venice Commission and the OSCE ODIHR. It included a number of remarks and praised the draft’s successful balance between the direct and representative democracy.
OPORA hereby commends the approval of the Law of Ukraine “On the All-Ukrainian Referendum” providing for the exercise of citizen right to initiate and participate in the all-Ukrainian referendum. The significance of legal regulation for the all-Ukrainian referendum is enshrined in the Constitution of Ukraine that guarantees this form of direct democracy.
Since 2018, when the CCU declared unconstitutional the previous Law of Ukraine “On the All-Ukrainian Referendum,” the constitutional provisions on citizen participation in the all-Ukrainian referendum have not been legally provided and could not be exercised. Although the parliamentary factions and groups failed to reach the consensus on the draft law (some of them highlighted the “excessively broad” or conversely, the “narrowed” capacity of the suggested regulation model for the all-Ukrainian referendum), the need to adopt it goes beyond questions. Regardless of keeping certain debatable provisions in the draft version, such as on repealing laws or their certain provisions through the referendum without engaging the parliament, it is rather balanced and prevents possible abuse of procedures and legal consequences of the all-Ukrainian referendum.
The Law of Ukraine “On the All-Ukrainian Referendum” was developed through an inclusive and public interaction of people’s deputies of Ukraine, national experts, and civil society. The draft went through the broad public discussion and expert evaluation by reputable international organizations in the field of elections and referenda. The framework on the all-Ukrainian referendum established a clear procedure to initiate the all-Ukrainian referendum upon the popular initiative that includes preventive mechanisms against abuse or tampering. At the same time, it is still accessible for all initiative groups. The Law provides for due requirements for transparency in financing the campaign for the all-Ukrainian referendum. The provisions are mostly synchronized with the Electoral Code, and allow for the high-standards vote.
What can be decided through the all-Ukrainian referendum and what cannot be tackled?
The new Law of Ukraine “On the All-Ukrainian Referendum” foresees the option to hold the all-Ukrainian referendum on the following matters:
- Approving the law on introducing changes to Parts І (General Provisions), ІІІ (Elections. Referenda), XIII Constitution of Ukraine (Introducing changes to the Constitution).
The type of referendum shall be set by the President of Ukraine under the Constitution of Ukraine, upon the adoption of the relevant law by the Verkhovna Rada of Ukraine.
- On changes to Ukraine’s territory.
The referendum shall be set by the Verkhovna Rada of Ukraine upon the adoption of the relevant draft law and having the President of Ukraine sign it.
- On nationwide significant matters: declared by the President of Ukraine upon request from 3 mln Ukrainian citizens, when their signatures have been collected from at least ⅔ Oblasts of Ukraine, and at least 100,000 signatures from each Oblast.
- On a law of Ukraine or its certain provisions becoming ineffective: declared by the President of Ukraine upon request from 3 mln Ukrainian citizens, when their signatures have been collected from at least ⅔ Oblasts of Ukraine, and at least 100,000 signatures from each Oblast.
Other issues cannot be the subject matter of the all-Ukrainian referendum. In particular, the Law does not foresee the approval of any draft laws through the popular vote, except for those concerning the law of Ukraine or its certain provisions becoming ineffective. The option to adopt laws at the all-Ukrainian referendum was a possible risky outcome of the previous public and parliamentary discussions on the new law. However, the working group of the Verkhovna Rada of Ukraine failed to support the unconstitutional provisions.
The all-Ukrainian referendum on approving changes to parts І, ІІІ, XIII of the Constitution of Ukraine and on changes to Ukraine’s territory is directly foreseen in the Constitution of Ukraine, and it is mandatory to hold the referendum to make final decisions on the foregoing matters. Thus, the Law of Ukraine “On the All-Ukrainian Referendum” on the constitutional changes and on changes to Ukraine’s territory is based on the provisions of the Constitution of Ukraine exclusively, and does not introduce any new subject matter for the referendum. In particular, the public discussions mentioned the ungrounded remarks on the law’s regulation of the all-Ukrainian referendum on changes to Ukraine’s territory, since the all-Ukrainian referendum on that matter is directly foreseen by the Constitution of Ukraine as mandatory. Conversely, the adopted Law provides for the practical implementation of the three-stage process of adopting an international agreement on changes to Ukraine’s territory that includes the adoption by the Verkhovna Rada of Ukraine of the law on ratification of the agreement, the signing of the Law by the President of Ukraine, and the adoption of the respective decision at the all-Ukrainian referendum. Therefore, the procedures of the Law on the all-Ukrainian referendum do not loosen but rather reinforce the prevention mechanisms for any unlawful actions on changes to Ukraine’s territory.
The matters of the nationwide significance that present a social interest and relate to the entire Ukrainian nation shall be put to the all-Ukrainian referendum upon the popular initiative. The results of the referendum are binding for authorities but the laws for their practical implementation can only be approved by the Verkhovna Rada of Ukraine. The law of Ukraine “On the All-Ukrainian Referendum” foresees the following algorithm: within 6 months from the date of official announcement of the referendum results, the Cabinet of Ministers of Ukraine shall submit to the Verkhovna Rada of Ukraine a draft law to enforce the referendum decision. Therefore, the resolution of nationwide significant issues does not restrict any legislative functions of the parliament, which is in line with the Constitution of Ukraine and the referenda related democratic standards. Thereat, the final version of the Law accounted for the recommendation by the Venice Commission and the OSCE ODIHR to enable citizens to challenge the inactivity of authorities in implementing referendum decisions on the nationally significant matters.
The most debatable aspect is the option to repeal the laws or their certain provisions at the all-Ukrainian referendum upon the popular initiative. As to the Law’s provision, there is no unified position of the constitutionalists, and it may become a subject for contestation in the Constitutional Court of Ukraine. The provisions of the Law in part of preparation, organization, and conduct of the all-Ukrainian referendum on repealing the law or its certain provisions shall enter into effect along with the law on the popular legislative initiative (in case it is adopted), but before January, 1, 2022. Thus, the provisions may only become the subject of constitutional control from the moment of becoming effective. With account for the fact that the process of considering the draft law on introducing provisions to the Constitution on the popular initiative is still underway, the likelihood may only arise as soon as in 2022. At the same time, it shall be emphasized that the possible consideration by the Constitutional Court of the draft law provisions on adopting draft laws at a referendum on repealing Laws or their certain provisions will not impact the constitutional conformity of other provisions.
International standards on referenda allow for such referenda, however with major requirements to their conduct and the regulation of their legal consequences. In particular, substantive remarks on such subject matter for the referendum were expressed in the joint expert opinion of the Venice Commission and the OSCE ODIHR on this draft law. For example, the opinion highlighted the unlikelihood of introducing the “repealing” (abrogative or derogative) referenda in Ukraine. This is due to the fact that the Constitution of Ukraine determines the Verkhovna Rada of Ukraine as the only legislative authority. Besides, the Law does not foresee the right of the Verkhovna Rada of Ukraine to submit their position on referenda questions suggesting to repeal the law or its part, proposals to eliminate the possible gaps in the law that might arise due to the direct enforcement of the law of repealing provisions of legal acts. On the other hand, the parliament is not allowed to adopt a law on the referendum question before the voting day if it settles an issue for the subject matter put to the vote, thus removing the need for the vote.
A key failed recommendation of the Venice Commission and the OSCE ODIHR is the need to empower the parliament with the due role before and after the referendum vote, to prevent any offset of the parliament’s powers. OPORA holds that the parliament shall regulate in the Regulations for the procedures to account for the referendum results on revising the laws. It will help avoid any legal uncertainty. At the same time, the procedure does not restrict the parliament’s right to regulate the issue upon the Law’s repeal, through adopting its new version.
The Law of Ukraine “On the All-Ukrainian Referendum” sets clear restrictions on the subject matter of the all-Ukrainian referendum that act as preventive mechanisms to make use of the popular will against the country’s territorial integrity, national security, or citizen rights. The discussion in the parliament showed that the list and the wording of questions that cannot be subject for the all-Ukrainian referendum, however not a direct quote from the Constitution of Ukraine, but they are still preventing the likely abuse holistically, such as preventing the repeal and restriction of human and civil rights.
Positive and negative aspects and consequences of the Law of Ukraine “On the All-Ukrainian Referendum”
OPORA hereby lists the following positive provisions of the Law of Ukraine “On the All-Ukrainian Referendum”:
- Lack of critical challenges for the Verkhovna Rada of Ukraine to exercise their legislative powers, since the parliament rejected the previous ideas on the possible adoption of laws at the all-Ukrainian referendum.
- The possibility to put to the all-Ukrainian referendum one question only, which is in line with the democratic standards preventing manipulations with the popular vote and providing for the due informing of citizens. Proposals from certain people’s deputies of Ukraine to enable several questions to be brought forward to the referendum when they pertain to the same issue do not prevent the distortion of the well-informed and conscious vote of citizens. In case of bringing forward several questions, even if they pertain to the same issue, it challenges the interpretation by authorities and voters, and politicizes the final decision to put the questions to the all-Ukrainian referendum at the same time. On the other hand, putting several questions from different areas of regulation violates the integrity of the referendum process. In the first place, it is about the impossibility to provide for equal representation in the referendum process of supporters and opponents for certain issues, such as when composing the election commissions.
- The introduction of a system of transparency and accountability of campaign finances at the all-Ukrainian referendum, which is in line with the minimum standards for elections. Specifically, the campaigning process has been regulated when collecting signatures to support the initiative of the all-Ukrainian referendum before it is declared, which finances shall be accountable and compliant with transparency criteria. The requirements will contribute to the equal opportunities of the referendum parties, and prevent the illegal financing of the referendum process. At the same time, OPORA highlights the importance of further reinforcement of transparency mechanisms in political and electoral finance in Ukraine, as they are not optimal yet.
- A rather high-quality synchronization of provisions of the Law “On the All-Ukrainian Referendum” and the Electoral Code, which will support the good practices of election commission members and courts in resolving disputes, or of other referendum related entities.
- The parliament accounted for the fact of lacking political and expert consensus in introducing the procedure for collecting signatures to support an initiative of the all-Ukrainian referendum in an electronic way, via Internet. Introduction of new technologies into the election process or referendum shall account for the issues of security and verification, but also they should gain a due level of legitimacy among citizens and political actors. The discussion in the parliament showed the lack of the consensus, which led to deletion from the Law of provisions on the collection of signatures as assisted by the CEC information system.
The shortcomings of the draft law of Ukraine “On the All-Ukrainian Referendum” include:
- The lack of the mandatory constitutional control over all questions of the all-Ukrainian referendum suggested upon the popular initiative, even though the issue could be resolved only through introducing changes to the Constitution of Ukraine, as it is related to the special rules of procedure of the CCU and to the constitutionally stipulated entities to resort to the court.
- Possible failure to ensure a proportionate representation of supporters and opponents for the questions of the all-Ukrainian referendum in the membership of the district and precinct commissions because of prioritizing the parties that composed the deputy factions in the parliament and are registered as supporters or opponents for questions of the all-Ukrainian referendum, and representatives of the initiative group of the all-Ukrainian referendum.
- Including to the Law of Ukraine the provisions on e-voting; although they are becoming effective upon adopting a separate law, they fail to reflect a political and expert consensus on the new voting methods.
The voted version of the Law of Ukraine “On the All-Ukrainian Referendum” envisages that in case the CEC detects signs of non-conformity of referendum questions with the Constitution of Ukraine, it shall address the President of Ukraine requesting to submit to the CCU a claim on the constitutional nature of the questions brought forward to the all-Ukrainian referendum. According to the procedure, the President of Ukraine may consider the feasibility of claim to be submitted to the CCU within 40 days, but he shall not be obliged to do so. During the time allocated for the head of state, the procedure to register the initiative group shall be suspended. Distinct from the President, the issue of the constitutional nature of questions put to the all-Ukrainian referendum may be raised by at least 45 people’s deputies of Ukraine entitled to resort to the CCU. The model of the constitutional control on the all-Ukrainian referendum potentially allows for a situation when neither the President of Ukraine, nor the people’s deputies of Ukraine resorted to the CCU; and the referendum questions brought forward by the popular initiative will fail to be verified. On the other hand, questions from other initiative groups shall be subject to verification, which goes against the objectives of the constitutional control in the field of referendum and contrary to the principle of a uniform application of the law to different entities.
OPORA hereby calls upon the Verkhovna Rada of Ukraine to introduce changes to the Constitution within the shortest possible time to enable a full-fledged constitutional control in the area of the all-Ukrainian referendum and to largely reduce its terms (such as in the appeals from the President of Ukraine to the CCU).
The chosen model for composing election commissions relies on a practical justification, since a mandatory quota allocated to an initiative group and to parties that formed deputy factions in the parliament and are registered as supporters or opponents of questions of the all-Ukrainian referendum, will resolve a potential problem when supporters and opponents of the referendum questions fail to nominate their representatives for membership in DECs and PECs. However, in terms of international standards on referendum, supporters and opponents of the referendum shall be equally represented in election commissions, which provides for the due unbiased control over the administration of the vote. On the other hand, the version of the draft law only aims at minimizing the differences in the representation.
The Law of Ukraine “On the All-Ukrainian Referendum” includes provisions on e-voting that will come into force only upon the approval of a separate law on the use of innovative technologies for electronic (machine assisted) voting. Although there is no current threat for the premature and non-verified introduction of the new voting methods before the approval of the special law, the relevant procedures had rather not be included into the law on the All-Ukrainian referendum. As witnessed during the consideration of the Law of Ukraine “On the All-Ukrainian Referendum”, a large part of MPs expressed the well-grounded objections against the new voting methods, and their prospective introduction failed to have found support in the political consensus.
OPORA hereby supports the approval of the law on the all-Ukrainian referendum, and calls upon the Parliament to maintain a dialogue on the high-quality balanced regulation of this type of direct democracy. Since the issue of the national referendum has the propensity towards the political conflict the Parliament shall be prepared to account for the remarks to the approved framework, and not rule out its further improvement based on the Constitution of Ukraine and democratic standards.