On March 29, the Constitutional Court (CC) announced its ruling on the constitutionality of the President’s decree to hold a Ukrainian referendum on the people’s initiative.
The CC recognized as constitutional the decree’s clauses on holding the referendum. Also found in compliance were four out of six questions included in the referendum: on parliamentary immunity, on a bicameral legislature, on reducing the number of People’s Deputies, and on the right of the President to dissolve Verkhovna Rada if it fails to form a majority within one month or fails to approve the budget within three. The first question — on no confidence in the 14th Verkhovna Rada and making, accordingly, amendments to the Constitution to the effect that the no- confidence vote at a nationwide referendum empowers the President to dissolve it — and the sixth — on the adoption of Constitution by means of a nationwide referendum — have been found unconstitutional.
Of great importance is the CC ruling that the referendum results will not be purely consultative, but will be binding official authorities to take these into account and make relevant decisions based on them.
The ruling was not unexpected. Many analysts predicted precisely such a decision. Moreover, the most criticized sixth question has been deleted.
Addressing a press conference after the ruling had been made public, CC Justice Pavlo Yevhrafov stressed that the President is obliged to declare a referendum on public initiative if the questions to be included in it do not violate the Constitution. According to him, when the CC was considering the case, it focused on the provision that the Ukrainian people have the exclusive right to determine the constitutional order of the state. “The people’s will, rights and freedoms are the gold of the Law,” he said.
Answering a question about what he thinks of the fact that two items of the President’s decree were recognized as unconstitutional, His Honor said, “This is what the Constitutional Court is all about.”
It should be noted the CC has thus created a judicial precedent to be relied upon by the Central Elections Commission, the President, and Parliament to make decisions on holding similar public-initiated referendums. Justice Yevhrafov noted in this connection that the ruling “will be a precedent and a legal case which all referendum pressure groups will be referring to and guided by in the future. But is of paramount importance that the questions offered for referendum should be checked by the Central Electoral Commission and the President, as guarantor of the Constitution, for compliance with the fundamental law.” Justice Yevhrafov also noted that the draft conclusions of the PACE Venice Commission (which proposed to declare the referendum unconstitutional) did not influence the CC ruling, if only for the simple reason that most of CC members saw them after they had made their ruling.
Meanwhile, the Venice Commission “is sure to take into account” the Constitutional Court of Ukraine ruling on referendum, for it “provides certain grounds either for withdrawal of the Venice Commission’s criticism or for serious corrections in its attitudes,” Leonid Pidpalov, deputy head of the presidential administration, opined at a March 29 briefing.
As to the President’s reaction, Mr. Pidpalov said he “accepted the CC ruling as a certain reality to be taken into account and fulfilled.” He recalled that Leonid Kuchma had earlier expressed his attitude toward the first question offered for referendum, considering it “imperfect.” Speaking of the mechanism to further implement the approved referendum questions, he stressed that the law did not set any deadlines. He thinks, in particular, that the issue of reducing the number of lawmakers can be implemented as soon as the next Parliament is elected. To do so, certain amendments will have to be made to the Constitution and the election law. “The current Deputies’ constitutional rights should not be curtailed,” Mr. Pidpalov pointed out.
In their turn, the Communist and Progressive Socialist parties of Ukraine still cling to the idea of an alternative referendum, these parties’ leaders Petro Symonenko and Natalia Vitrenko told Interfax-Ukraine.
COMMENT
Serhiy HOLOVATY, People’s Deputy of Ukraine:
“Deciding on the unconstitutionality of the first and sixth questions, the CC made a completely reasonable, in juridical terms, use of the constitutional law. As to the other questions, it made a political decision. The main thing is that this CC ruling has crushed the intent of those who wanted to stage an anti-constitutional coup in Ukraine and put this country on the path of Lukashenka. Now Ukraine will not go the Belarusian way. Besides, the CC has defended parliamentary government by its ruling. From now on, nobody can offer for referendum a vote of no confidence in a parliament elected by the people. This is a great victory for democracy, parliamentary democracy, and the European values of constitutional law.
“As to the remaining four questions, they are practically of no consequence. The decisions passed by the referendum will be binding on administrative bodies. This means the President or 150 Deputies (the number needed for a legislative initiative) can moot the relevant bill in Verkhovna Rada. However, nobody will force, for example, me personally to moot any bills on these issues. The President can introduce the bill, Parliament will consider it, and can pass or reject it. Then it must turn to the CC for its conclusions and then the CC ruling will go to Verkhovna Rada. This is the way the first and the second parliamentary sessions will go. And only then will the decision be made. This means it is guaranteed that we will be solving these problems for a couple of years. Now the question arises whether we should spend 30 million hryvnias for the President to moot a bill after the referendum if the same can be done in the usual way?”
Oleksandr LAVRYNOVYCH, People’s Deputy of Ukraine:
“The most important thing is that the CC has demonstrated it defends the current Constitution of Ukraine and the supremacy of law in our state. Holding the referendum in full scope, with its results being treated as norms for direct action, could have led to negative consequences and endanger the movement toward European integration Ukraine has opted for.
“If the remaining questions are upheld by the referendum, changes in the Constitution will be initiated either by the President or Parliament under the stipulated procedure. I do not think there will be a question of a bicameral parliament in our lifetime, for this is unlikely to find support in Verkhovna Rada, which must consider it and then make the respective amendments to the Constitution. In any case, the overwhelming majority of Deputies oppose such changes. Thus even if this question is supported in the referendum, this will be of no consequence for the contents of the Constitution.”
