Political Points for 27 August – 3 September 2018

The CEC disrupts elections in the united territorial communities

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1. CPLR expert opinion

In the beginning of August, the Central Election Commission blocked the holding of the first elections in the united territorial communities and explained that with the lack of understanding of legal regulation of the procedure for holding referendums. The CEC adopted a Resolution requesting the Verkhovna Rada Committee on Legal Policy and Justice to provide clarification as to the legislative regulation of the organization and procedure for referendums in Ukraine.

In accordance with the Law “On Voluntary Association of Territorial Communities”, the decision on association is taken by local councils or by means of a local referendum. In the opinion of the CEC, the lack of legislation on local referendums does not allow elections in the UTC. This position is unable to withstand any criticism that is partly disclosed in the statement of the Reanimation Package of Reforms.

However, this event draws attention to the problem of the absence of the Law “On All-Ukrainian Referendum” and the regulation of local referendums.

2. Respective authorities counter-point/argument

According to the opinion of the Central Election Commission, unclear situation with the validity of the Law “On All-Ukrainian and Local Referenda” dated 1991 does not allow holding elections to the united territorial communities.

3. CPLR assessment of the authorities counter-point

1. In accordance with the Law of Ukraine “On Voluntary Association of Territorial Communities”, the decision on association is taken by local councils or by means of a local referendum. That is, the decision on association of united territorial communities is taken by local councils or by means of a local referendum. Therefore, upon availability of the decision of the local council, it does not matter whether the legislation on local referenda is in place or not for the association of united territorial communities.

2. Speculations in relation to renewal of the Law of Ukraine “On All-Ukrainian and Local Referenda’ is groundless, since after the abolition of the Law of Ukraine “On All-Ukrainian Referendum” by the Constitutional Court in the spring of 2018, the previous legislation does not resume its validity. Currently, there is no legislation in Ukraine that regulates the conduct of any referenda.

3. The Committees of the Verkhovna Rada of Ukraine are not entitled to interpret laws officially. Therefore, the decision of the Verkhovna Rada Committee will in no way help the CEC resolve the dilemma they created for themselves. In order to get explanations on the consequences of the Constitutional Court decision, the CEC should have referred to the Constitutional Court itself.

4. Related legislation/instructions which require the authorities act in a certain manner.

Section III of the Constitution of Ukraine, Decision of the Constitutional Court No. 4-p/2018 in a case under the constitutional petition of 57 people’s deputies of Ukraine on the compliance with the Constitution of Ukraine (constitutionality) with the Law of Ukraine “On All-Ukrainian Referendum”, the Law of Ukraine “On Committees of the Verkhovna Rada of Ukraine”.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine.

In order to solve these problems, the Central Election Commission should stop violating the legislation and the Constitution of Ukraine and appoint the first and additional local elections in the UTC. And the Verkhovna Rada, in its turn, needs to start the process of adopting democratic referendum legislation. Representatives of the expert community have already prepared proposals for the second reading to the draft law No. 2145a.