On April 26, 2018, the Constitutional Court declared unconstitutional the Law “On All-Ukrainian Referendum”, which was adopted at the time of Yanukovych. The decision of the Constitutional Court to declare the Law “On All-Ukrainian Referendum” unconstitutional has stopped the possibility of conducting manipulative national referenda in Ukraine. Thus, the state remains protected from conducting referenda, which substitute the will of the people and legitimize decisions of political forces through the institute of direct democracy.
In 2012, on the last working day of the Verkhovna Rada of the VI convocation, before the next parliamentary elections, the deputies pushed through the Law “On All-Ukrainian Referendum”. The draft law was not supported in the Parliament, not presented for voting for a long time because of the constant criticism, so the deputies did not manage to pass it.
Some people were saying that this law was adopted for possible accession of Ukraine to the Customs Union or for any other form of rapprochement with Russia. At the same time, the Law abolished the procedure for conducting local referenda. In 2014, Yanukovych escaped and the power changed, but the Law “On All-Ukrainian Referendum” remained in force. The question of the unconstitutionality of the Law was firstly raised by civil society. Afterwards, on December 1, 2014, 57 deputies addressed the Constitutional Court with a petition on the unconstitutionality of the provisions of the Law and the procedure for its adoption.
The Law provided for the possibility of adopting a new Constitution, which is contrary to the Constitution itself, as it can only be amended. The Law did not specify where the text of the new Constitution would be taken, which allowed the authorities to replace the established procedure for amending the Constitution by holding a referendum, bypassing the Verkhovna Rada and presenting their text of the Constitution for voting with further falsification of its results. The structure of the Law was constructed so that such a tool as referendum would help to pass decisions of the ruling party. The referendum upon the people’s initiative was a complete profanation since it established the people’s initiative procedure that would be unrealistic without the support of an administrative resource.
This law was criticized by the Venice Commission back in 2012. In particular, Conclusion No 705/2012 regarding the Law of Ukraine “On All-Ukrainian Referendum” states that “The possibility of adopting a Constitution at a referendum convened upon people’s initiative is not provided for by the current Constitution of Ukraine” and “Granting permission for a national referendum upon people’s initiative regarding a new Constitution or amendments to the Constitution … will make it possible to avoid the requirements of a qualified majority in the Verkhovna Rada. The Commission strongly believes that it will be detrimental to the constitutional stability and legality in Ukraine.”
On April 26, the Constitutional Court, in its Decision No. 4-p/2018, declared this law unconstitutional in its entirety, both for a reason of violating the constitutional procedure for its adoption, and the inconsistency of the content of this law with the Constitution of Ukraine.
However, now a problem arises with the lack of legislation regulating the procedure for conducting a national referendum. In accordance with the Plan of Legislative Support to Reforms in Ukraine, the new law was to be adopted in 2016. On June 23, 2015, a draft law on an all-Ukrainian referendum No.2145а was registered. It 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, taking into account the recommendations of the European Commission for Democracy through Law (the Venice Commission) of the Council of Europe. As 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.
One can only congratulate the Ukrainian society and the Constitutional Court of Ukraine on the abolition of the Law “On All-Ukrainian Referendum”. It is now necessary to focus on adopting a new law that will be democratic, constitutional and in line with European standards.
Authors: Julia Kyrychenko, Bohdan Bondarenko, Centre of Policy and Legal Reform (Kyiv, Ukraine)Author : Ukrainian Liaison Office in Brussels