The ability to cancel bills, high turnout and no referendums on the ground: what does Zelensky's bill on democracy imply

On October 13, 2020, President of Ukraine Volodymyr Zelensky again spoke about “democracy”, a step towards which he called five questions that will be put to the poll during voting in local elections.

In this regard, Klymenko Time analyzed the draft law on democracy adopted in the first reading through an all-Ukrainian referendum.

Democracy postponed

In the program of Volodymyr Zelensky, it was stated that his first bill would be the bill "On Democracy". However, the deputies were in no hurry to develop and adopt it for obvious reasons - they would have to submit to a referendum such important issues as, for example, the opening of the land market - an IMF requirement that is not supported by the absolute majority of Ukrainians, and the result of the referendum would prevent the adoption of this law.

The draft law on democracy itself was received by the Verkhovna Rada only on June 9, 2020, and was adopted in the first reading on June 18. It is expected that it will be submitted for the second reading in October.

История вопроса

The holding of a referendum is guaranteed by the third section of the Constitution of Ukraine. In Ukraine, there were two laws on the referendum - first from 1991, and to replace it in 2012, a new law was adopted, recognized in 2018 as unconstitutional due to a violation of the procedure for consideration and adoption, as well as the unconstitutionality of its individual provisions.

For this reason, the adoption of a law on a referendum is necessary, especially in the context of the extremely important and unpopular decisions currently being promoted in the country.

What is the bill about

to the referendum the following questions may be asked:

• approval of the law on amendments to sections I (general provisions), III (elections and referendum), XIII (amendments to the constitution) of the Constitution of Ukraine. At the same time, the law of 2012 envisaged the submission of a new version of the constitution of Ukraine to a referendum, but there is no such provision in the developed draft law;
• issues of national importance;
• issues of changing territory;
• questions about the termination of the law of Ukraine or its individual provisions.

At the same time, the list of issues that can be submitted to a referendum does not imply a legislative popular initiative.

to the referendum cannot be taken out, among others, issues aimed at eliminating the independence of Ukraine, violations of state sovereignty and territorial integrity, inciting hatred (interethnic, racial, etc.), as well as issues of taxes, budget and amnesty.

Only one question can be submitted to a referendum, and its holding can be financed exclusively with the money of the state budget.

High turnout. According to Art. 116.5, the All-Ukrainian referendum is considered valid if at least 50% of voters from the total number of voters included in the state register of voters took part in the voting.

Procedure for calling a referendum. A referendum on amendments to certain sections of the Constitution and on popular initiative is appointed by the president, on changing the territory - by the Verkhovna Rada. It is held exclusively in the nationwide district.

The referendum on popular initiative is announced by the president within 15 days after the decision of the CEC on the basis of the collected 3 million signatures of citizens of Ukraine who have the right to vote, provided that the signatures were collected in at least two-thirds of the administrative-territorial units of Ukraine. The referendum itself is scheduled for the last Sunday of the sixty-day period from the date of signing by the president of the decree on calling the referendum.

At the same time, in order to collect signatures at the meeting, an initiative group is formed, which must consist of at least 60 voters. The organizers of the meeting can only be citizens of Ukraine.

Subjects of the referendum. If earlier only citizens of Ukraine (voters) were defined as subjects of a referendum, then the proposed draft law adds to them the CEC, a political party registered as a supporter or opponent of the issue submitted to the all-Ukrainian referendum, as well as a public organization - supporter or opponent of the issue. This can increase both the politicization and discussion of the scheduled referendum, and also automatically involves political and social movements in it.

During the collection of signatures, the subjects of the referendum (political parties and civil society organizations) have the right to campaign. At the same time, supporters and opponents of the referendum will have the right to proportional presence in each category of leadership positions in district commissions. In addition, the district commission will definitely include one representative each from the initiative group and the political party that created a parliamentary faction in the last elections and registered it in the Verkhovna Rada of the current convocation.

Prohibition of campaigning by foreigners. According to the bill, it is forbidden for foreigners and stateless persons to take part in campaigning for the all-Ukrainian referendum, including through journalistic activities or in the form of participation in concerts, exhibitions, sports competitions and other public events held in support of or against the all-Ukrainian referendum. It is also prohibited to campaign in foreign media that operate on the territory of Ukraine, as well as in media registered in Ukraine, in which the share of foreign ownership exceeds 50%.

At the same time, the bill does not regulate the activities of the so-called. "foreign agents" - Ukrainian organizations and activists with Ukrainian passports, receiving grant funding from other states.

Precinct commissions. Precinct commissions must be created no later than 18 days before voting: for small polling stations of 10-18 people, for medium ones - from 14-20, for large ones - from 18-24.

Mandatory referendum. The bill assumes that the results of the people's will do not require approval by any state body, and the decision can be changed only at a new referendum no earlier than three years after its adoption.

The results of the referendum come into effect 10 days after their official publication. The issue of repealing the law or its individual provisions, rejected in a referendum, may be re-submitted to a popular vote no earlier than one year from the date of the announcement of the results.

Issues of national importance, supported by Ukrainians, are obligatory for the implementation of the relevant state authorities.

Electronic voting. As part of digitalization, the draft law adds the possibility of electronic voting, the procedure for which should be determined by the Central Election Commission. To prepare for the organization and conduct of electronic voting and counting of votes, a special polling station for electronic voting and a polling station commission for electronic voting will have to be created on a temporary basis.

The date and time of electronic voting, which must be the same as the date and time of ballot voting, must be announced by the CEC on its official website.

At the same time, the issues of protecting personal data during voting and ensuring the security of the system from unauthorized interventions are still open.

No local referenda

The very name “Draft law on democracy through an all-Ukrainian referendum” does not imply local referendums, which limits decentralization opportunities and the right of regions to determine priorities in important regional issues.

The decision of the referendum was not carried out

In 2000, an All-Ukrainian referendum was held in Ukraine, which raised four questions: the ability of the president to prematurely terminate the powers of the Verkhovna Rada in certain cases, limiting parliamentary immunity, reducing the number of deputies to 300, and forming a bicameral parliament. All questions were supported by more than 80% of those who voted, but as a result, no changes were made to the legislation - despite the decision of the Constitutional Court in 2008 on the mandatory approval of the laws submitted to the referendum by the Verkhovna Rada.

And what about Zelensky's poll?

The poll, initiated by the president, has no legal force and is purely a PR stunt, apparently made to increase discussion of him and his political strength in the run-up to the elections and increase the ratings of the Servant of the People. However, a poll can have the opposite effect because it asks questions that are irrelevant to the majority of the population.

In addition, the sources of funding for the survey and the groups interested in it remain unknown.

Main conclusions

● The issue of the 50% turnout threshold in the referendum is rather controversial. In Ukraine, until 1998, there was a minimum turnout threshold of 50% in elections, which was abolished. A low turnout casts doubt on the legitimacy of the vote, and a high turnout threshold in a divided society could make holding an all-Ukrainian referendum impossible.

● If the draft law on an all-Ukrainian referendum is adopted, it could be considered the issue of reviewing or repealing certain laws that are not supported in the country, including the law on education, on the functioning of the Ukrainian language as the state language, on the opening of the land market, on the legalization of the gambling business, banking law, etc. Considering that the referendum also involves consideration of issues of national importance, it can also include the geopolitical orientation of the country, joining international unions and blocs, cooperation with the IMF, the issue of the presence of foreign troops in the country, etc.

● Taking into account the required collection of signatures (3 million voters), initiating a referendum on popular initiative will probably only be possible if the political will of a well-funded party – that is, individual political forces.

● Taking into account the previous experience of holding a referendum in Ukraine, the implementation of decisions taken at subsequent referendums remains questionable.