Press conference dedicated to the 28th anniversary of Referendum in Ukraine
In 1991, 28 years ago, Ukraine proclaimed its independence through a national referendum. Since its adoption in 1996, the Constitution of Ukraine has stipulated that a national referendum may be held in Ukraine at the people’s initiative. However, due to the legal vacuum created after the Constitutional Court in 2018 deemed the 2012 National Referendum Law unconstitutional, Ukrainian citizens are deprived of the right to decide issues of national importance through national referenda.
On November 29, IFES subgrantee, Center of Policy and Legal Reform on behalf of members of the coalition For Fair Referendum held a press conference calling upon the Ukrainian parliament to ensure that citizens are able to exercise their constitutional right to participate in governing the state through national referenda.
At the press conference, national experts highlighted the importance of finding legislative balance between the need of people to exercise direct democracy through a referendum and the need to prevent the abuse of a referendum for political and even non-democratic purposes. Additionally, the experts mentioned that under international best practice it is inappropriate to pass laws through a referendum, since laws should be passed by Parliament. A referendum can be called only to abrogate an existing law, but cannot be called to bypass the legislative process in Parliament. Thus, the experts suggested that citizens should be given the opportunity to repeal laws of Ukraine if they do not support legislation adopted by Parliament.
Video from the press-conference in Ukrainian is available via this link.
On April 26, 2018, Ukraine’s Constitutional Court ruled the 2012 National Referendum Law unconstitutional. The Law was adopted without the involvement of civil society or the expert community in a process that violated procedures prescribed by the Constitution. The Constitutional Court decision represented a positive step for Ukraine given that the application of the flawed referendum law could have posed a serious threat to democracy. As noted by national and international civil society representatives and experts, including the Venice Commission, the 2012 National Referendum Law was not consistent with international standards, good practice, or the Constitution of Ukraine.
The repeal of the National Referendum Law resulted in a legal vacuum in regulation of referenda in Ukraine, which will be particularly problematic if there is a need to change the provisions of the Constitution that require approval both of the Rada, President and a national referendum. These cases include provisions contained in Chapters I “General Provisions,” III “Elections and Referendums” and XIII “Constitutional Changes” of the Constitution. Referenda are also required to adopt fundamental foreign policy decisions, such as joining NATO or the European Union.
In 2015, members of the “For Fair Referendum” coalition prepared a draft National Referendum Law (Draft Law 2145a), which was introduced in the Rada in June 2015. Similar to the fate of other draft laws aimed at comprehensive election law reform, it was never considered by the previous Rada. With some technical amendments already prepared by the Coalition “For Fair Referendum,” the draft National Referendum Law should be re-registered in the new Rada.
The draft National Referendum Law updates provisions on the preparation and administration of national referenda in line with the Constitution of Ukraine, international standards and good practices. It harmonizes referenda commission operations, referendum campaigning, media coverage, voting, and referendum tabulation with the respective procedures foreseen in the laws governing nationwide elections.
Re-registration and the subsequent adoption of this draft into law will fill the current legal vacuum and bring the regulation of national referendum processes in Ukraine in line with international standards, best practices and the Constitution.