January, 26, Verkhovna Rada of Ukraine passed, in the second reading and in whole, the draft law “On Popular Rule Through the All-Ukrainian Referendum” (No 3612). The new law is aimed at implementing direct popular rule and address national issues. The law has already “grown” rumours and is surrounded by disinformation. That is why this article explains how the all-Ukrainian referendum is going to run in Ukraine.
The all-Ukrainian referendum is a form of direct democracy in Ukraine, a way to exercise power directly by the Ukrainian people, which lies in decision making (adopting) by the citizens of Ukraine via voting in cases and under procedures established by the Constitution of Ukraine and the Law.
In terms of legislation, Ukraine has defined the all-Ukrainian referendum only; additionally, the law on local referenda is underway to be presented for the public in February, 2021.
The following issues may be brought forward for the referendum:
At the same time, the referendum may not accept issues contradicting the Constitution and international provisions, such as the Universal Declaration of Human Rights and the 1950 Convention. Besides, it is prohibited to raise any issues intended to liquidate the independence and infringe on the territorial integrity, or on any draft laws on taxation, budgeting, amnesty or matters within the competence of law-enforcement authorities and the court.
The referendum initiators shall formulate the proposal in the form of a question, while the citizens shall express support or reject the idea. That is why voters need to give only one of the answers: “yes” or “no”. When formulating questions for the referendum, it is important to avoid different interpretations, and the request shall be laid out clearly and understandably. It is also unacceptable to mislead voters and to incite them to certain answers, to instigate in any way, to encourage to support or reject the referendum question. One question only shall be submitted for the referendum.
President of Ukraine shall set the referendum on changes to Parts І, ІІІ, XIII of the Constitution of Ukraine, while Verkhovna Rada shall be in charge of the issues related to the change of territory. The referendum on other matters shall be conducted upon popular initiative and declared by the President upon request of at least 3 million citizens, upon condition that signatures to set the referendum have been collected in at least two thirds of the regions, and at least with 100,000 signatures from each Oblast.
There is only one circumstance provided that might impact the declaration of a referendum – the introduction of the martial law in Ukraine or in its certain areas. Under these conditions, the referendum shall be prohibited to administer. In case the process had been launched already, it shall be interrupted from the day of introducing the martial law or the state of emergency, by the decree of the President of Ukraine. 30 days upon the moment of terminating or cancelling the martial law or the state of emergency, the process of the all-Ukrainian referendum may be resumed.
The only entity entitled to conclude about the Constitutional compliance of the question submitted for the referendum is the Constitutional Court. The applicants to request for verification may be the President of Ukraine and people’s deputies (at least 45 persons). When the Constitutional Court initiates the proceedings the entire referendum procedures shall be suspended. The longest possible suspension period is 30 days, as it is the time allocated for the CCU to consider the claim. If the Constitutional Court concludes that the question submitted for the referendum is unconstitutional, the entire campaign shall be terminated on the same day. In case the decision on the referendum question constitutional compliance is positive, or the relevant proceedings are closed, the referendum procedure shall continue (with account for the number of the calendar days used to collect the signatures); in case it is impossible to continue, the procedure shall re-start.
To notify the Central Election Commission on the convention dedicated to the nomination of the delegate – at least five days before the convention of citizens.
To conduct the convention of citizens with at least 300 Ukrainian nationals attending entitled to vote as of the convention date, i.e. entitled to act as voters. During the convention, the question shall be formulated to be put up for the referendum; the justification shall be adopted for the position on the question for the all-Ukrainian referendum, and the text of the draft law (if the referendum refers to the repeal of the current law, in part or in whole). In case the majority of registered meeting participants support the referendum question, the personal membership of the initiative group shall be finalized.
Registration of the initiative group (at least 60 persons participating in the convention of citizens) and submission of the entire package of documents to the CEC shall take place within 10 days following the convention.
The CEC shall verify the submitted documents to register the initiative group and adopt the relevant resolution within 10 days. In case the unconstitutional elements are identified in the question to be submitted for the referendum, the CEC shall adopt a resolution on termination of the registration, and address the President. The latter has 40 days to apply for the Constitutional Court. In case there is no such request, or no constitutional proceedings initiated, the CEC shall resume the registration process for the initiative group; and it shall issue the respective resolution within five days.
In case of registering the initiative group, the CEC shall issue a certificate on registration to the authorized representative – by the day following the registration date.
The collection of signatures to support the conduct of the referendum from at least 3 million Ukraine’s citizens entitled to vote, upon condition that the signatures to declare the all-Ukrainian referendum upon popular initiative have been collected in at least ⅔ Oblasts, with at least 100,000 signatures from each Oblast, shall run within 90 days.
Transfer of signatures and other documents to the CEC – by 18:00 of the last day of collecting signatures.
Verification of signatures by the Central Election Commission – 14 days. Following that, the CEC shall adopt a resolution on setting the all-Ukrainian referendum and within one day it shall be transferred to the President to be further declared. In case the number of signatures is insufficient, the CEC shall adopt the relevant decision and the resolution to terminate the referendum initiatives.
The President of Ukraine shall issue the decree on the declaration of the all-Ukrainian referendum upon popular initiative – within 15 days upon receiving the CEC decision. The President shall also set the date for the referendum – the last Sunday of the 60-day period from the day of issuing the decree.
The launch of the process of the all-Ukrainian referendum – since the day following the publication day of the Presidential Decree.
Registration of political parties and nongovernmental organizations in the status of supporters or opponents of the referendum question – with the launch of the referendum process, but no later than 40 days before the voting day. Within three days upon adopting the relevant statement, the CEC shall register or reject them.
The campaigning of the initiative group for the referendum question shall start from the first day of the process of the all-Ukrainian referendum. Parties and NGOs may start their campaigns in favour or against the referendum question from the next day following their registration as supporters or opponents of the question. It shall last until 24:00 on the last Friday before the voting day.
Voting at the all-Ukrainian referendum – last Sunday of the 60-day period from the date of issuance of the decree.
The CEC shall establish the results of the all-Ukrainian referendum – within 10 days following the voting day. In case they have not been contested in the court, the CEC shall announce the results within 5 days since the day of establishing the results. Thereupon, there are maximum 5 days to officially publish the law approved at the all-Ukrainian referendum.
Coming into effect of the law of Ukraine approved at the all-Ukrainian referendum – 10 days upon the day of its official promulgation, unless otherwise provided by this law, but not before the day of its official publication. In case the referendum referred to the question of the national scale, and it found support, the Cabinet of Ministers of Ukraine shall submit to the Verkhovna Rada of Ukraine a draft law to enforce (implement) the decision of the Ukrainian people to support the issue within 6 months following the day of official announcement of results of the all-Ukrainian referendum.
Storing the documents in the archives – for 5 years following the day of official announcement of results of the all-Ukrainian referendum or the termination of the process of the all-Ukrainian referendum.
The re-submission of the question rejected by voters – no sooner than 1 year after the day of official announcement of results of the all-Ukrainian referendum initiated by the people.
Ban for the parliament to pass the laws repeating the same wording of provisions that have lost their force due to the all-Ukrainian referendum, – within 3 years after the day of disempowerment of the laws.
How to exercise your suffrage and initiate the submission of a question to the all-Ukrainian referendum? You need to organize the convention of Ukrainian nationals with at least 300 voters attending. The convention organizers shall inform the Central Election Commission of the fact of conducting the meeting 5 days before the day, and the CEC shall delegate their representative to the meeting. At the convention, an initiative group shall be established for the all-Ukrainian referendum (at least 60 voters), and their authorized representative shall be elected. Every member of the initiative group shall sign the personal written consent on their participation, the convention may not be conducted within the public authorities, in authorities of the Autonomous Republic of Crimea, in local-self-governments, in the Armed Forces of Ukraine, and in other military formations established under the law, in law-enforcement bodies, in childcare facilities, in education facilities, in health care facilities, in social welfare facilities, at housing and utility management companies and institutions.
On this stage, questions shall be formulated to be submitted for the all-Ukrainian referendum upon popular initiative, and the justifications for the position shall be prepared. It is important that they may not be further altered or edited.
Within 10 days following the convention, the authorized representative shall deliver all documents to the CEC and register the special fund. Central Election Commission has 10 days to analyze the documents and make the final decision on the registration of the initiative group or on its rejection. The negative decision of the CEC may be contested by the initiative group in the court.
At the same time, the CEC shall supervise to make sure there is no “double” initiation, and shall reject the registration to other groups of voters trying to submit the referendum question that overlaps with the question, in content or in substance, submitted by the registered initiative.
As to financing the activities of the initiative group, the expenses for its operations may not be covered by public authorities, authorities of the Autonomous Republic of Crimea, local-self-governments, or companies, organizations, or institutions in government or communal ownership.
Upon the registration of the initiative group, an active work shall start to promote the initiative. Stage one – collection of voter signatures to support the initiative. Moreover, now it is allowed to officially campaign but not “in favour” or “against” the question suggested for the referendum but as to whether sign or not to support the initiative to have the referendum. The initiative group shall find support with at least 3 mln voters. The process is allocated for 90 days. No one may be forced to sign or be remunerated for the signatures. There are several requirements for signatures. First, they shall be collected in 2/3 of Ukraine’s Oblasts, at least 100,000 signatures from each. Second, voters are entitled to give only one signature to support one initiative to have the referendum. In case several signatures from the same person are identified (it is the task for the CEC), they shall be accounted as one. Members of the initiative group may not collect signatures in public authorities, in authorities of the Autonomous Republic of Crimea, in local-self-governments, in the Armed Forces of Ukraine, and in other military formations established under the law, in law-enforcement bodies, in childcare facilities, in education facilities, in health care facilities, in social welfare facilities, at housing and utility management companies and institutions.
The process of the all-Ukrainian referendum shall also be followed by two types of campaigning: advocating to sign the support to the referendum, and encouraging citizens to come to vote and either support or reject the initiative. The campaigning may be administered by political parties and non-governmental organizations registered as supporters or opponents of the referendum questions, and the initiative group.
A prerequisite to conducting any kind of campaigning is the establishment of the campaigning fund referring to the initiative. Control over operations of the funds shall be exerted by the Central Election Commission, by the National Agency on Prevention of Corruption, and a bank holding the account. Another requirement is to file financial reports on all incomings to the campaigning fund account as to the initiative, on costs incurred and the remaining balance on the respective accounts.
Any citizen of Ukraine entitled to act as a voter has a right to personally run or participate in the campaign in favour or against the referendum but not to spend their own funds for this activity.
The all-Ukrainian referendum shall be conducted at the expense of the state budget upon the annual request from the Central Election Commission. However, the initiative group, as well as political parties and non-governmental organizations registered as supporters or opponents of the question shall open special election funds to cover the campaign in favour or against.
The process of the all-Ukrainian referendum shall start on the following day after the publishing of the decree of the President of Ukraine or the resolution of Verkhovna Rada of Ukraine, and shall end 15 days after the official announcement of results by the Central Election Commission.
However, the process may also be terminated earlier, for the following reasons:
The referendum shall be considered accomplished if at least 50% of voters registered in the State Voter Register had voted. In case of a positive vote, the results shall not require any additional approval by any public authority, while the adopted decision shall come into force 10 days after the promulgation of results.
In case a question submitted for the referendum was of national significance the procedure is longer. In case of support the Cabinet of Ministers of Ukraine shall develop and submit to the parliament the relevant draft law that reflects the popular will expressed at the referendum. Thereupon, the standard procedure shall be launched for the parliament to consider the legislative initiative.
In case the question failed to have found support at the referendum, it may re-submitted as soon as a year after. On the other hand, the adopted decision may be changed as soon as three years following the day of adoption, and exclusively via the all-Ukrainian referendum.
The initiative for e-voting at the all-Ukrainian referendum faced heated debate and raised certain concerns. However, since it is a separate procedure currently not established in the Ukrainian laws, the transitional provisions postponed it to the moment when the parliament passes a separate law on e-voting, and the CEC runs several successful pilot projects for the new form of voting.
Further, the proposal to collect signatures in support of the e-referendum (that was also previously designed to be administered electronically) was not supported by the parliament.
In Ukraine, over the independence period, there have been 2 all-Ukrainian referenda, in 1991, and in 2000, and about 150 local referenda. However, there were also the notorious pseudo-referenda of 2014 that have no relation to the Ukrainian law. Moreover, in 2014-2020, Ukrainian courts held accountable 192 persons for their organization.
The first all-Ukrainian referendum took place on December, 1, 1991, where 90.32% participants approved of the question “Do you support the Act of Declaration of the independence of Ukraine?”. It was organized under the Law of Ukraine “On the All-Ukrainian and Local Referenda” dated July, 3, 1991. The second referendum ran on April, 16, 2000, and asked the question on the changes to the Constitution. In fact, it was a de facto public survey or an opinion poll as the results have not been reflected in the laws because at the time the legal framework on referendum did not go in line with the Constitution. In 2012, Verkhovna Rada already approved the Law of Ukraine “On the All-Ukrainian Referendum” registered back in 2010. However, it was later recognized unconstitutional (decision of April, 26, 2018 No 4-р/2018). In total, from 1998 to 2014, there have been 27 failing attempts to initiate an all-Ukrainian referendum upon the popular initiative on various issues .