Proposals of NGO Coalition “For Fair Referendum” regarding improvement of regulation of referendums in Ukraine

Proposals of NGO Coalition “For Fair Referendum”
regarding improvement of regulation of referendums in Ukraine

We, the nongovernmental organizations Center for Political and Legal Reforms, Ukrainian Independent Center for Political Research, Center.UA, Agency for Legislative Initiatives, Electoral Law Institute,

upholding the democratic values,

prioritizing human rights and freedoms, as well as the rule of law in our actions,

being united by need to protect of the constitutional order and strengthen capacity of the civil society in implementation of the constitutional right of the citizens to participate in decision-making in line with democratic international standards, as our common goals,

pay attention to:

–         inadequate regulation of referendums in Ukraine;

–         risks deriving from implementation of the National Referendum Law in practice, in particular the risks of holding manipulative referendums in Ukraine and possibility to change the Constitution of Ukraine in unconstitutional way.

The National Referendum Law adopted by the Parliament of Ukraine on 6 November 2012 (hereinafter – the Law) violates the Constitution of Ukraine and European standards, was adopted in violation of the constitutional procedure and the Parliament’s Rules of Procedure. It also makes almost impossible free expression of the voters’ will, eliminates the possibility of holding referendums at local level, and undermines constitutionalism and rule of law in Ukraine.

Taking all abovementioned into account, the NGO Coalition “For Fair Referendum” highlights the need to:

1) prepare, through broad public consultations and in a transparent manner, and adopt a new version of the law that will regulate referendums in a manner consistent with the Venice Commission Guidelines for Constitutional Referendums at National Level, Code of Good Practice on Referendums, as well as the Venice Commission opinion on the National Referendum Law;

2) hold national referendums only on condition that the legal framework  governing the referendums has been brought in compliance with the Constitution of Ukraine, as well as with the Venice Commission Guidelines for Constitutional Referendums at National Level, Code of Good Practice on Referendums, as well as the Venice Commission opinion on the National Referendum Law;

3) introduce legal regulation of the local referendums as one of the constitutional forms of direct democracy.

To ensure that national referendums are held in accordance with the Constitution of Ukraine and European standards, the Coalition suggests the following amendments to be made to the Law:

·        The types of the referendums permitted under the law should be clearly identified. Referendums should be divided into mandatory (provided for by the Constitution) and optional (all other referendums, holding of which is not required by the Constitution). Depending on their legal consequences, referendums should be divided into final (decisions adopted by these referendums should not require further approval), obliging (decisions adopted by these referendums should be subject to mandatory consideration by the legislature), and consultative (decisions adopted by these referendums should be taken into account by public authorities while adopting their decisions). The legal consequences of all these types of referendums should be clearly specified in the Law.

·        Referendums to amend the Constitution of Ukraine (in particular, to adopt a new Constitution of Ukraine or to amend certain provisions of the current Constitution) should be held only in accordance with the procedure prescribed by Chapter XIII “Amendments to the Constitution” of the Constitution of Ukraine as the final stage of the constitutional review process. Referendums aimed to change the Constitution in cases not foreseen directly in the Constitution (such as adoption of a new Constitution, cancellation of the laws amending the Constitution) should not be allowed.

·        Referendums to repeal laws (legislative referendums) should not be held without involvement of the parliament in the referendum process. The scope of issues to be decided by legislative referendum should be narrowed to include only one issue, i.e. repeal of a law adopted by the legislature. In such cases, the Law should make it clear that if the President has called the national referendum upon popular initiative to repeal the law, the legislature shall consider the issue and adopt a decision on it without delay. The constitutional provisions regarding expression of the voters’ will through the referendums should be clarified within the course of the constitutional reform.

·        Timelines and requirements for initiation of referendums by voters should be realistic. In particular, the number of participants of the citizen assemblies established to form initiative group for referendum should be reduced to 500 persons, while the time required for collection of the voter signatures in support of referendum should be increased to 90 days. Also, the right to collect voter signatures in support of referendum should be granted to all Ukraine’s citizens who have reached voting age by the time of collecting signatures.

·        Provisions in the law relating to the subject of referendums and the wording of referendum questions should be clarified.  In particular, there should be precise requirements for the wording of referendum questions so that they not ambiguous or misleading.  Further, the Law should establish requirements as to the procedural and substantive validity of questions submitted to referendum, as well as procedures to check the appropriateness of the referendum subject. In particular, there should be procedures and requirements to prevent the unconstitutional issues or issues violating the provisions of international agreements ratified by the Parliament from being decided by referendum. Such procedures and requirements should also restrict the possibility of combining general principle with specific provision in a referendum text or putting forward for the referendum the issues, which may be unclear to the voters or of manipulative nature.

·        The Law should clearly state that national referendums cannot be held simultaneously with national regular elections.

·        The Law should make a clear distinction between information coverage of the referendum and referendum campaigning, so that the media can report on referendum issues without being subject to the rules governing campaign activity.

·        The Law should also provide for equal opportunities in referendum campaigning for both supporters and opponents of the referendum question. In particular, both opponents and supporters of the referendum question should have the right to establish referendum funds to finance campaign activities. The provisions in the Law governing political advertising and access to media should be brought in conformity with the respective provisions in the laws governing national elections.

·        The procedure for establishment of referendum commissions should ensure equal opportunities for representation on the territorial and precinct referendum commissions for both supporters and opponents of the referendum question.

·        The Law should provide for transparency in the funding of the referendum campaign. In particular, the Law should provide for publication of financial reports on referendum campaigning expenses on CEC website. It should also require the CEC to analyze the reports submitted by referendum fund managers. Consideration should be given to ensuring that any violation of the requirements to funding of referendum campaigning is a subject to effective, proportionate and dissuasive sanctions.

·        The Law should make it clear that political parties supporting or opposing a referendum question have the right to participate in referendum process as referendum subjects, if they so choose.  They should have the right to campaign for or against a referendum question and have official observers.

·        NGO that have provisions related to referendums or protection of voter rights in their charters should have the right to observe the referendums through their observers who should be granted the status of referendum subjects.

·        A referendum should be deemed to have been held only on condition that the majority of the voters included on the voter lists voted.

·        The Law should require that referendum results be officially published before they come into effect. The Law should also specify how, when and by which body the referendum decisions be incorporated into the legal framework.

·        There should be an effective system of appeal against referendum decisions. The right to challenge referendum-related violations should be granted not only to supporters of the referendum question, but also to its opponents.

Kyiv, 20 June 2013