Analysis of draft law on the holding of referenda
People are exercising the power directly and via the public authorities and self-government bodies1. In the opinion of the Constitutional Court of Ukraine, an element of the process of direct exercise of power by the people includes the exercise of Constitutional rights and freedoms by Ukraine’s citizens, such as the right to vote at elections and at a referendum. Additionally, people have the exlusive right to directly, via the all-Ukrainian referendum, to identify the constitutional rule in Ukraine2, set by the Constitution of Ukraine, and to change the constitutional order by introducing changes to the Basic Law of Ukraine, under procedures established by Chapter XIII3 there in. The referendum is a legitimate method for citizens to express their positions, as opposed to public authorities, provided the latter fail to meet their interests.
Holding referenda in Ukraine from 1991 to 2012 was regulated by the law “On the All-Ukrainian and Local Referenda” (№ 1286-XII dated July, 3, 1991). Its provisions are largely outdated and did not comply with the Constitution of Ukraine and electoral law provisions. In November, 2012, the Law of Ukraine on Referendum (No 5475-VI) was adopted in breach with procedures. It was negatively evaluated by national experts and by the Venice Commission. Key reservations were about the regulation for administering the constitutional, rectification (on territorial issues) and legislative referenda. Specifically, the draft law established the procedures for changing the Constitution in the manner not provided by the Constitution of Ukraine itself. In the opinion of the Venice Commission, it might lead to manipulations with the referendum for political reasons. Moreover, the law of referendum failed to fully comply with the international standards on aspects that could be brought forward to the referendum upon popular initiative. In addition, it had a number of technical issues (including the failure on equality principle among referendum supporters and opponents, composing referendum commissions, and financing the referendum campaign).
In 2018, the Constitutional Court of Ukraine recognized as unconstitutional the Law of Ukraine “On the All-Ukrainian Referendum in Ukraine” due to breaking its adoption procedure4. Thereupon, a significant gap in the law on referenda. It de facto disabled their conduct, thus restricting the exercise of the stated rights. To overcome the gap, the expert cohort discussed the possibility to resume the effect of the previous Law “on the All-Ukrainian and Local Referenda” (1991). In fact, the renouncing provision was recognized as unconstitutional, too. However, due to lack of political will and specific legal provisions therefor, the legal vacuum in this field failed to have been filled.
Since that time, a number of draft laws have been registered in the Parliament related to referenda5. OPORA has multiple times provided expert evaluations of the draft laws upon request from the designated committee.
Moreover, in the late 2019, a draft law was presented “On the All-Ukrainian referendum” finalized by the team of authors of the “Ukrainian Institute of Direct Democracy” NGO and the “Institute of Legislation of the Verkhovna Rada of Ukraine.” When drafting the piece, they relied on the draft Law “On the All-Ukrainian Referendum” No 2145а (developed by the working group chaired by professor Volodymyr Shapoval). Despite the urge from the expert community, it failed to be considered in the Parliament of the VIII convocation.
Upon the regulation of the Speaker of the Verkhovna Rada of Ukraine of January 13, 2020, No 2, in order to prepare the agreed proposals to improve the current legislation of Ukraine on popular rule and direct democracy, a Working Group on draft laws on popular rule was established. In the expert discussion, which involved representatives of civil society, the Civil Network OPORA among them, and representatives of public authorities, the first draft of the Law was finalized and published on March 4, 2020 open for public discussion on the official website of the Verkhovna Rada of Ukraine. As a result, on June 9, 2020, the President registered draft law No 3612 “On Popular Rule through an All-Ukrainian Referendum”as urgent.
As a consistent stakeholder in upholding the political rights of Ukrainian citizens, Civil Network OPORA, together with the International Foundation for Electoral Systems (IFES), also drafted a Roadmap for Reform 2020 on Elections, Referenda and Political Finance. It contains recommendations, including the development of referendum legislation. It is worth noting that some of the proposals identified by the Road map, have been taken into account.
The draft law has undergone an inclusive public discussion procedure. However, because of the announced quarantine measures, it was administered via online services, and received a number of reviews from international expert organizations. The comments raised during the discussions have been taken into account in the final version of the draft law, to a certain extent. Once finalized, the draft law provides mechanisms to ensure a balanced representation of supporters and opponents in referendum commissions. Thus, political parties that have formed parliamentary factions in the Verkhovna Rada of Ukraine of the current convocation have the right to nominate candidates to the commissions only if they are registered as supporters or opponents of the all-Ukrainian referendum. Besides, the recommendation was taken into account to reduce the maximum number of issues submitted to the referendum from three (as proposed in the draft law submitted for public discussion) to one (in the registered draft).
Overall, the registered draft law largely meets international standards in the field of referenda, and allows for a democratic referendum as stipulated by its provisions. Nevertheless, there are still a number of debatable issues that need to be resolved during the finalization of the draft law before the second reading.
Civil Network OPORA hereby highlights the following key provisions of the draft law:
1. Scope and wording of the all-Ukrainian referendum. One of the most controversial issues in the process of drafting the law № 3612 was the scope of an all-Ukrainian referendum. According to Article 3, the following questions may be put to a referendum: approval of the law amending sections I, III, XIII of the Constitution of Ukraine; matters of national importance; changes in the territory of Ukraine within the ratification procedure of international agreements; repeal of the law of Ukraine or certain provisions.
Matters of national importance. It shall be noted that the definition of "a matter of national importance" enshrined in Part 4 of Article 19 of the draft law reads as "an issue which solution affects the fate of the entire Ukrainian people and is of general public interest." In this wording, it is quite abstract.
It is a legislative definition resulted from a compromise. On the one hand, it allows for a wide range of issues relevant to society to be put to a referendum, and partially prevents political attempts to limit the subject of the referendum. However, on the other hand, the government may face problems with the implementation of national referendum results, when the questions are not properly clarified.
In this respect, attention should be paid to the position of the Venice Commission, which considers that in the event of a referendum on a question or proposal formulated in general terms, such a referendum shall be consultative. The Commission also recommends that it be possible to go to court in the event that parliament or another relevant authority refuses to implement the results of a national referendum (for example, unimplemented decisions approved in an all-Ukrainian referendum in 2000).
It should be emphasized that the provisions of the draft law in this part are balanced by a fairly clear list of issues that cannot be put to a referendum. These are issues that are contrary not only to the Constitution but also to generally accepted principles and provisions of international law.
The issue of repeal of the law of Ukraine or its certain provisions. During the discussion, the working group members agreed to abandon the legislative referendums, which aimed to prevent the substitution of parliamentary activities by a referendum. At the same time, the text of the draft law leaves the possibility of holding referendums on the repeal of the law of Ukraine (“abrogative referendums”) or some of its provisions (“derogative referendums”). In case of parliamentary inaction, it could potentially lead to gaps in legislation. On the other hand, in this way, the authors of the draft law tried to find a balance that would not destroy the legislative branch of government, but would enable citizens to repeal an ineffective law on issues important to society.
The questions of changing the territory of Ukraine. The draft law regulates the procedure for holding a referendum on changing the territory, which shall be appointed by the parliament. Thus, it is stipulated that it is only a law on ratification of an international treaty approved by the parliament that may be put to a referendum on such an issue. Precautions, though, appear to be designed to respond to the risks associated with changing the territory against the interests of the state or in an unconstitutional manner. They include the possibility for imposing a presidential "veto" on the law on ratification of an international treaty, and for appealing to the Constitutional Court. At the same time, by amending the relevant Constitutional provisions and the provisions of the Law on the Constitutional Court, a mandatory review by the Constitutional Court shall be introduced, in lieu of optional constitutional review, of both the international treaty amending the territory of Ukraine and the Verkhovna Rada resolutions on calling an all-Ukrainian referendum.
Restrictions on the scope of referendum. The draft law establishes significant safeguards, such as a set of issues that cannot be put to an all-Ukrainian referendum. In particular, the following issues shall not be the put to All-Ukrainian referendum:
- contrary to the provisions of the Constitution of Ukraine, universally recognized principles and norms of international law, enshrined in the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, protocols thereto;
- intended to eliminate the independence of Ukraine; violate the state sovereignty and territorial integrity of Ukraine; create a threat to the national security of Ukraine; incite interethnic, racial and religious hatred;
- on draft laws on taxes, budget, or amnesty;
- referred by the Constitution of Ukraine and the laws of Ukraine to the jurisdiction of law enforcement agencies, prosecutors or courts.
There is a positive requirement to submit to the all-Ukrainian referendum only one issue, which is designed to ensure the recommendation of the Venice Commission on the unity of content. In addition, it will promote a balanced representation of supporters and opponents of the referendum in the election commissions, as well as make it impossible to bring conflicting issues to the same all-Ukrainian referendum.
Formulation of the question.The provisions of the draft law on the form of the question did not fully take into account the recommendations of the Venice Commission regarding the procedural and substantive suitability of the texts, which may lead to a violation of the principle of free vote.
Moreover, opinions of Venice Commission experts on the need to add some aspects on the referenda to the Code of Good Practices state that there may be practices, confirmed by previous experience, when “yes or no” answers to the referendum questions may not fully meet the criteria on specific and clear formulation of questions. Since the draft law does not provide for other phrasing of answers to the referendum, in addition to “yes” or “no”, the recommendation from the Venice Commission experts may be the subject for discussion at further stages of the legislative process.
2. Legal consequences of the all-Ukrainian referendum. According to the draft law, the results of the popular vote at the all-Ukrainian referendum do not require any approval by any public authority.
The draft law also establishes a legality requirement in the form of a 50% turnout in a referendum, namely: “A referendum shall be considered to have taken place if at least 50% of voters included in the State Register of Voters took part in the voting.”
The Venice Commission does not recommend establishing a quorum for voter participation (barrier, minimum percentage), since the quorum (minimum turnout) contributes to the fact that absenteeism is more advantageous for opponents of the referendum subject rather than voting against. Besides, setting the turnout threshold can lead to significant budget costs with null results.
At the same time, due to the possibility to adopt decisions at the referendum on amending chapters І, ІІІ, XIII of the Constitution of Ukraine, and to ratify international treaties on change of territory, setting a threshold turnout on this stage of state-building is a soundly justified safeguard against initiating and adopting controversial decision at the referendum that might escalate the social and political tensions in the country.
Sustainablity of decisions adopted at the national referendum vs supremacy of the Constitution of Ukraine. Part 2 of Art. 4 of the draft law remains to be rather controversial. Under this provision, any decisions adopted at the all-Ukrainian referendum may be subject to change by the all-Ukrainian referendum as soon as three years after the day of its adoption. Thus, in the event any decision adopted at the referendum shall refer to issues covered by the constitutional powers of the Verkhovna Rada of Ukraine, the President of Ukraine, the Constitutional Court of Ukraine, or other public authorities, part 2 of Art. 4 of the draft law may be contrary to the Constitution of Ukraine. Constitution of Ukraine. In this regard, we hereby hold that such restrictions shall be established on the constitutional level.
3. Initiating the all-Ukrainian referendum. As determined by the constitutional procedures, the draft law provides that the President of Ukraine shall set the referendum on amending chapters І, ІІІ, ХІІІ of the Constitution, while the Verkhovna Rada shall take charge of the issues on changing the country’s territory. As to all other aspects, the all-Ukrainian referendum shall be held under the popular initiative and declared by the President.
To initiate an issue to be put to the referendum, at least 60 citizens of Ukraine eligible to vote shall establish an initiative group. The initiative group shall be established at a meeting of citizens attended by at least 300 voters, with mandatory attendance of the CEC representative. During the meeting, a position shall be substantiated on the question to be put to all-Ukrainian referendum upon popular initiative, and the phrasing shall be finalized; the text of the draft law shall be finalized on renouncing a law of Ukraine or its certain provisions, which shall not be amended on further stages of the referenda process.
The draft law6 provides that the all-Ukrainian referendum initiated by popular will shall be announced upon request from at least three million citizens of Ukraine eligible to vote, provided that signatures supporting the announcement of the all-Ukrainian referendum have been collected at least in two thirds of administrative territorial units stated in part two of Article 133 of the Constitution of Ukraine (Autonomous Republic of Crimea, city of Kyiv, city of Sevastopol, and all oblasts); whereas each place shall have at least 100,000 signatures. At the same time, Article 72 of the Constitution stipulates that two thirds of signatures shall be collected in the oblasts. The current version of Article 29 of the draft law was added after the working group stopped functioning, on the stage of registering the legislative initiative.
We uphold the position that all administrative territorial units in Ukraine are recognized as such that enjoy equal status and rights7. Thus, the constitutional requirement on signatures shall apply to all administrative territorial units, rather than oblasts exclusively. At the same time, to eliminate the shortcoming, changes shall be introduced to Article 72 of the Constitution. Therefore, at present, in part of collecting signatures in at least two thirds of administrative terriorial units of Ukraine, Article 29 of the draft law fails to comply with the text of the Constitution, and may be further deemed as unconstitutional by the Constitutional Court, in this part.
4. The status of referendum supporters and opponents. Engagement of NGOs in the all-Ukrainian referendum. The draft law takes into account the recommendations of the Venice Commission on registration of referendum supporters and opponnets. Legislative formalization of the parties can be justified by the fact that citizens of Ukraine need to receive the comprehensive and balanced information on the question put to the referendum so that they could make conscious and free choices during the vote. In addition, the Venice Commission recommends to fix the status of supporters and opponents to ensure equal opportunities to the two parties. Specifically, it refers to possibilities to express themselves in mass media and in public, on positions “in favour” or “against” the referendum questions. Besides, the enshrining of rights and obligations of supporters and opponents helps establishing unbiased and independent referendum commissions.
The draft law also suggests participation of NGOs in the role of supporters or opponents.
During the public discussion, there have been raised certain remarks, and they claimed that it might be the way to politicize activities of non-governmental organizations, when they would be engaged into functions that are not common for them. Despite the arguments, we hereby uphold that empowering NGOs to legally act as supporters or opponnets, on par with parties, would have a reverse effect. It will enhance transparency of financing the referendum process on the side of civil society. Moreover, there may be no one among political parties willing to act as a supporter or an opponent for certain questions. Therefore, registration of non-partisan organizations would allow to balance the social discussions.
At the same time, NGOs will not be entitled to nominate candidates to referendum commission members. Thus, it eliminates the risk of breaking the balance of supporters and opponents in election commissions when “fake” NGOs might submit very many nominated candidates.
At the same time, the draft law also envisages a possibility of public observation over the referendum process by organizations with no status of a supporter or an opponent. In general, this part of the draft law goes in line with the provisions of the Electoral Code and international standards.
5. Campaigning. Compared to the previous legislation on the referendum, the novelty of the draft law is a proposal to define a new type of campaigning. It is the campaigning during the collection of signatures in support of the initiative to hold a referendum. It aims to encourage voters to support or not to support the initiative to hold an all-Ukrainian referendum upon the popular initiative. Such campaigning may be carried out both by the initiative group itself and by political parties and NGOs registered as supporters or opponents.
An obligatory requirement for conducting any kind of campaigning is the establishment of an initiative group fund or a campaign fund on the initiative of a political party or an NGO registered as supporters or opponents of the referendum issue. All campaigning costs should be spent exclusively from these funds. At the same time, citizens of Ukraine, as participants in the referendum, have the right to personally participate in campaigning in favour or against the referendum initiative, without spending their own funds.
Moreover, on later stages, finalization of the draft law will have to consider for further regulation of campaigning on the Internet and in social media.
6. E-referendum. The draft law provides for a more active use of e-services at referenda, with possible gradual introduction of e-voting, such as the use of procedures online when organizing and holding the all-Ukrainian referendum. For instance, support for the initiative to hold an all-Ukrainian referendum can be exercised by voters through an automated information and analytical system. Also, taking into account the digitalization trends in all spheres of public life, the draft law provides for the possibility of e-voting. At the same time, several reservations should be made in this regard, as set out in the Code of Good Practice in Electoral Matters, regarding the introduction of electronic voting. In particular, it is necessary to comply with the requirements on security and reliability: the platform that provides the possibility to vote and set the results must be safely protected from external interference and function reliably, regardless of the shortcomings of software or hardware. It is also necessary to ensure the secrecy of the ballot. No one shall have access to results of the expression of the voter’s will, except for the voters themselves. The e-voting system shall be transparent, i.e. provide for the possibility to verify the correctness of its functioning.
According to the Roadmap of Reform, transparent equipment procurement, system security testing, the implementation of pilot e-voting projects and an awareness-raising campaign shall precede the official implementation of the new voting mechanism.
The draft law provisions on e-voting, as designed by the authors, may apply only after the launch of the special automated system and the adoption of the relevant decision by the CEC. Thus, the electronic voting system shall not be introduced simultaneously with the adoption of the Law.
The provisions of Article 115 of the draft law, which provide for the establishment of a polling station for the organization of electronic voting, drawing up a separate list of voters at such a special polling station and the procedure for drawing up a protocol on the results of electronic voting, are non-specific. They are inconsistent with other provisions and non-compliant with the CEC powers as the main body of election administration.
OPORA hereby urges to delete provisions from the draft law that enable the CEC to establish the procedures for e-voting, since the law-enforcement body may not set procedures to vote at the referendum. Pursuant to the Constitution of Ukraine, issues on e-voting procedures shall be regulated on the legislative level only.
7. Constitutional control. Compared to the first version, provisions of the registered draft law have been coordinated with the constitutional provisions, such as in part of introducing the preliminary constitutional control.
The Venice Commission recommends checking the suitability of the texts for voting. It will help avoid the “futile” voting in a referendum on the text which will later be declared unfit due to inconsistencies with the law (substantive unfitness).To prevent an illegal referendum, texts that are procedurally or substantively inappropriate shall not be put to a referendum.
At the same time, the current version of the draft law, as well as the Constitution of Ukraine, provides only the optional nature of the preliminary constitutional review of the issue submitted to the all-Ukrainian referendum. In other words, the Constitutional Court examines the issue submitted to the all-Ukrainian referendum only in the event of request from the President of Ukraine, or from at least forty five people’s deputies of Ukraine. The situation of putting a question to a referendum without its prior compliance verification with the Constitution may be quite probable. As the Constitutional Court does not have the power to exercise subsequent constitutional review (of a decision taken in a referendum), there are risks that unconstitutional decisions will take effect.
It should be emphasized that the provisions of the draft law on the all-Ukrainian referendum are currently harmonized with the Electoral Code. At the same time, both the current legislation on election regulation, and the draft law on the referendum do not overcome a number of problems that will need to be addressed comprehensively in further stages of electoral reform.
In particular, there is a need to regulate campaigning on the Internet, to introduce mandatory training of members of election commissions and referendum commissions, to further strengthen the mechanisms of accessibility of elections for people with disabilities, and to more actively use the latest technologies to automate office work in election commissions, and also in the vote count stage and disclosure of data.
The issue of transparency in the financing of campaign expenses for the referendum initiative and campaign for the referendum issue also needs further settlement. In particular, there is a need to limit the amount of own contribution of the initiative group, political party and NGO to the campaign fund. In addition, approaches to the submission of financial statements of political parties, and interim and final reports of election funds / and campaign funds during the referendum through a single open electronic register should be unified. The NACP should be empowered with actual leverage to control the timely reporting, and also any expenses outside the fund incurred by the subjects.
In order to establish proportional sanctions for non-compliance with the rules of the new type of campaigning during the collection of signatures in support of the referendum initiative, further amendments shall be made to the Code of Administrative Offenses and the Criminal Code to provide for liability for the non-compliance. Without the introduction of efficient control mechanisms and effective sanctions, similar to those imposed for non-compliance with other types of campaigning during elections or referendums, the consolidation of campaign rules during the initiative will not in itself be an effective mechanism for increasing the transparency of referenda.
Given the transparent and inclusive process of developing the draft law “On the All-Ukrainian Referendum,” the Working Group has made significant progress in creating a legal framework for the organization and conduct of a democratic referendum. At the same time, we believe that the draft law needs further discussion and revision, taking into account the exemplary practices of democratic countries in this area, as well as some of the proposals outlined in this statement and the Roadmap. In addition, if the Venice Commission gives an opinion on the draft law, the reservations must be considered in the designated committee before the second reading, or taken into account after the adoption of the draft law.