The game started with the removal of procedure. When the law On National Ukrainian Referendum was passed in November 2012, approval procedures were grossly violated. But procedural violations have become something of a norm in modern Ukraine, especially after the recent ruling by the High Administrative Court of Ukraine that the off-site meeting of a part of parliament’s deputies on April 4 is legitimate.
Next concept that might disappear, is people power. People do not usually get to run their own country in parallel to the formal authorities. International standards for conducting referendums envisage that they are an additional way of democratic participation, and the two are not mutually exclusive.
Referendums, including direct ones, elective ones (like parliamentary elections) and procedures for consulting with people, have to create a unified legal field for exercising power by the people. Instead, the new law On National Ukrainian Referendum promotes a concept that goes back to the Soviet interpretation of people’s rights, under which referendums were the higher form of people’s power.
Of course, people are the source of power and can make decisions, but they have to act on the basis of law, rather than in an arbitrary way.
The main difference between the new law on referendum and the old law dating back to 2000, is the direct implementation of its result. This means that the rulings approved at a referendum, become a part of national legislation automatically, and do not require any additional steps by other power organs.
But by introducing this new implementation procedure, its authors leave many questions unanswered.
How many people is enough?
Firstly, can a decision approved by a minority of people, be considered as approved by the people? The new bill has no turnover requirements. That’s why any calls to sabotage the referendum are counter-productive. If 10 percent of people show up for a referendum, the decision will be taken by the majority of these people. The same happens if just 10 citizens show up.
Who needs good commissions to count votes?
Secondly, can people be sure of proper vote counting if referendum commissions are formed in a non-transparent way and its members are dependent on the government bodies that formed them?
The referendum commissions are formed by the government organs of various levels: either by heads of local councils, or by the heads of local executive bodies. But it either case, a single person is responsible for taking that decision.
We can assume that in those regions where the majority in the local council does not belong to pro-government parties, the commissions will be formed by heads of local administrations, whose careers are totally dependent on the will of the nation’s president.
If anything goes wrong, even on the eve of the referendum or on the day of the vote, any commission member can be replaced. This procedure creates a critical dependency of commission members on government bodies that have appointed them.
Moreover, this procedure contradicts the Code of Good Practice on referendums approved by the Council of Europe in 2007, and this is supposed to matter for a country that has proclaimed the aim of European integration.
However, this appointment procedure makes sure that everything will be counted the way it fits the government. The quorum requirements for the work of commissions is also very peculiar. On the day of vote and vote counting, the work of commissions is considered legitimate regardless of the number of commission members present. Surely, two or three members of commissions are capable of coping with counting and tallying, are they not?
Who needs a free discussion in the media?
Thirdly, can a decision be considered as freely approved if there is no way to freely discuss the issue? The law On National Ukrainian Referendum limits participation of the media and journalists in the discussion.
It forces them to cover the conduct of a referendum according to an agreement made with the its initiative group. It would be one thing to regulate the placement of promotional materials in the media, and it’s totally different when the activities of the media are governed by a specialized agreement.
The failure to make such an agreement can lead to “temporary loss of license” or “temporary ban on production of a printed medium.” And the legal suit can come from either side, both from the initiative group and from the commission on referendum.
How many referendums are too many?
Fourthly, how can citizens have a productive discussion on referendum if there are several of them taking place? In its famous 1997 recommendation, the Parliamentary Assembly of the Council of Europe, when talking about instruments of representative democracy, said that the number of issues that are voted at a single referendum has to be limited. This enables good public discussions that make issues clearer for all citizens.
Approved by the people. Now what?
Fifthly, if the law on national referendum allows people to approve laws, why does it fail to provide procedures? We won’t even mention that under the Constitution, the only organ with powers to approve laws is the parliament. We will just ask who is going to create the draft law? Where can all Ukrainians read it? How is it amended and who has the power to do it? How much time is there to implement it? Who authors the law and signs it with their name?
What about the quality of laws?
Sixthly, can the text of the Constitution be of high quality if it never went through parliament and the Constitutional Court, no through the public debate? It’s clear there is a demand for a quick change of political rules. But when the issue is the relationship between the society and the state, political interests have to be limited by other players.
How do you amend the laws approved by referendum?
Seventhly, what is the status of decisions approved by referendum? How long can’t they be changed for? How can they be changed at all? Is it through another referendum?
The list of irregularities at every stage described by the law on referendum is too long to analyse them all. Most of the law’s provisions have plenty of room for interpretations, and in places – they are clearly manipulative.
Whatever the agenda of the upcoming referendum is going to be, the ability to conduct it in an honest and transparent is questionable. What remains very clear is that state decisions taken through non-transparent and manipulative procedures are a sign of high political pressure.
Svitlana Kononchuk is head of political programs of the Ukrainian Independent Center for Political Studies.
