Statement on non-constitutional National Referendum Law
The continued application of the undemocratic law which does not conform with Ukraine’s Constitution, poses a serious threat to democracy in Ukraine. Public authorities have failed to take actions on this key reform over the past year. For tangible progress to be made in the sphere, the following recommendations, stemming from the 2016 Save Referendum Forum’s Statement, must be considered and prioritized
December 1, 2017
December 1, 2017, marks the 26th anniversary of Ukraine’s 1991 independence referendum. While this is a proud day for all Ukrainians, it is also a reminder that the subsequently modified referendum law that is currently in place is severely flawed.
On November 6, 2012, Ukraine adopted a new National Referendum Law. This was done without the involvement of civil society or the expert community through a process that violated procedures prescribed by the Constitution of Ukraine. The 2012 Law, which is still in force, raises a number of concerns that may adversely affect Ukrainian democracy.
As noted by national and international civil society representatives and experts, including the Venice Commission, the 2012 Law that currently regulates Ukraine’s referendums—a tool through which Ukrainians proclaimed their independence over 25 years ago, is not consistent with international standards, good practice, or Ukraine’s Constitution.
Key areas of concern with regard to the National Referendum Law:
· the procedure for constitutional review, (including adoption of a new Constitution to replace the current one), excludes the Verkhovna Rada from the process. This is inconsistent with the provisions of the current Constitution governing constitutional review;
· complicated provisions for reviewing referenda initiatives by the Central Election Commission could result in selective decisions, or decisions perceived as such, and the delaying or halting of initiatives based on technicalities;
· the absence of provisions that would guarantee the independence of election commissions that are formed to administer referendums;
· unequal opportunities for supporters and opponents. Those who initiate a referendum can campaign in favor of their initiative, nominate referendum commissioners at district and precinct levels, and raise funds for their initiative campaign. The opposing side does not have these opportunities.
· the absence of provisions that would require public consultations on drafts, including those that could affect the Constitution of Ukraine;
· the possibility of adopting referendum decisions by a small group of citizens given the absence of a turnout thresholds.
In an effort to repeal this undemocratic law and to replace it with a new National Referendum Law which is consistent with Ukraine’s Constitution, international standards and good international practice, civil society activists have taken the following actions:
· established an NGO Coalition “For Fair Referendum” (early 2013);
· prepared a constitutional petition seeking to recognize the National Referendum Law as unconstitutional, which was subsequently submitted to the Constitutional Court of Ukraine by a group of the parliamentarians (December 1, 2014);
· drafted a new version of the National Referendum Law, which was then registered in the Verkhovna Rada (draft reg. No 2145a) (June 23, 2015); and,
· the International Foundation for Electoral Systems (IFES) in partnership with Center of Policy and Legal Reform held a Forum “Save Referendum” to consolidate efforts of political parties and civil society toward the adoption of new referendum legislation; based on the discussion, participants prepared a Statement which was supported by 29 civil society organizations1 (December 1, 2016).
After the Revolution of Dignity, the newly elected Verkhovna Rada of Ukraine has failed to repeal the undemocratic and unconstitutional National Referendum Law. While a constitutional petition seeking to recognize the Law as unconstitutional was filed almost three years ago, a decision on this case is still pending.
The continued application of the undemocratic law which does not conform with Ukraine’s Constitution, poses a serious threat to democracy in Ukraine. Public authorities have failed to take actions on this key reform over the past year. For tangible progress to be made in the sphere, the following recommendations, stemming from the 2016 Save Referendum Forum’s Statement, must be considered and prioritized:
1. The Verkhovna Rada of Ukraine to repeal the National Referendum Law of November 6, 2012, and to adopt a new National Referendum Law. This new Law should be based on the Draft Law No 2145a and comply with the Constitution of Ukraine, international standards and good practice in the field of referendums.
2. The Constitutional Court of Ukraine to accelerate consideration and adoption of a decision on the unconstitutionality of the 2012 National Referendum Law.
3. The President of Ukraine to clarify his official position with respect to the National Referendum Law and ways, terms and mechanisms to bring the National Referendum Law in compliance with the Constitution of Ukraine, international standards and good practice.
This statement was prepared by the International Foundation for Electoral Systems (IFES) and the Center of Policy and Legal Reform through the support of the United States Agency for International Development (USAID), Global Affairs Canada, and UK aid. The opinions expressed herein are those of the author and do not necessarily reflect the views of USAID, the United States Government, Global Affairs Canada, the Government of Canada or the UK government.
1 Reanimation Package of Reforms; Center of Policy and Legal Reform; Ukrainian Center for Independent Political Research; volunteer movement, Space of Freedom; public holding, GROUP OF INFLUENCE; Trust; Danube Center for Civic Initiatives; public initiative, Public Control; Expertise of Reforms; Media View; Victoria; People's Initiative; Dnipro Centre for Social Research; Tavria; Human Rights Group, Society and Law; Foundation for Entrepreneurship Supporting and Competition Development in Poltava region; Foundation, Creative Initiative; Information Centre on Human Rights; Creative manufactory, Call of the Future; Ethnodiving; Dnipro Center for Social Researches; Humanitarian Movement; center, Tamarisk; River of Life; Human on the Earth; Public Initiative; anticorruption public union, Conscience; Polissya Foundation for International and Regional Studies; and, Academy of Monitoring and Expertise.