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A gap in referendum legislation
1. CPLR expert opinion
Since the end of 2012, the CPLR experts have been constantly struggling against the unconstitutional Law “On All-Ukrainian Referendum”. Finally, on April 26, 2018, the Constitutional Court of Ukraine adopted the Decision No. 4-p/2018, which recognized the Law as unconstitutional in its entirety. Following the decision of the Constitutional Court, organization of national referendums became impossible, as the legislative gap has been created.
2. Respective authorities counter-point/argument
Communications Department of the Constitutional Court of Ukraine and legal monitoring: “By this decision, the Constitutional Court of Ukraine declared the Law unconstitutional both due to the violation of the procedure for its consideration and approval, and in view of its content. On the basis of establishing the illegitimacy of the purpose of the Law and the inconsistency of its provisions with the requirements of the Constitution of Ukraine, the Constitutional Court came to the conclusion that the Law completely contradicts the Basic Law of the State”.
3. CPLR assessment of the authorities counter-point
Currently, a new draft law “On All-Ukrainian Referendum” has been registered in Parliament. As early as June 23, 2015, the draft Law “On All-Ukrainian Referendum” No,2145а was registered, which was prepared by an expert working group organized by the Centre of Policy and Legal Reforms. The draft proposes to consolidate at the legislative level the provisions on the preparation and holding of an all-Ukrainian referendum in accordance with the requirements of the Constitution, with due consideration of international standards and recommendations of the European Commission for Democracy through Law (Venice Commission) of the Council of Europe.
Taking into account that almost three years have passed since its registration, it needs to be finalized. This can be done if the Verkhovna Rada votes for it in the first reading. The draft law is included in the agenda of the eighth session of the Verkhovna Rada of Ukraine of the eighth convocation, but there is no progress in its promotion.
4. Related legislation/instructions which require the authorities act in a certain manner
Articles 38, 69, 70, 72, 73, 74, 75, 85 and 92 of the Constitution of Ukraine actually oblige the Parliament to ensure the implementation of the constitutional right of citizens to participate in referendums. The decision of the Constitutional Court of Ukraine No. 4-p/2018 abolished the unconstitutional Law “On All-Ukrainian Referendum”.
5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine
The Verkhovna Rada of Ukraine should urgently consider the draft Law “On All-Ukrainian Referendum No. 2145a” and approve the democratic legislation on the referendums.