№3(14)(2013)

We wanted the best, and got as usual... The law "On the National Referendum" is the only sensible idea that arises in analysis of classical democratic initiatives in Ukrainian interpretation. Who pushed the new law, why it is dangerous and why experts, journalists and opposition are alarmed right now – let’s try to find it out on our own

Let's start with the fact that the law did not arise out of nowhere. It was written back in 2010 and then submitted by "Regions" representative Dmitry Shpenov to Parliament. It was rejected at first reading by deputies, and lawyers have advised a number of amendments and eliminated possibility of questions submitted to referendum to amend the Constitution. In amended version project probably raised little interest because it was at all forgotten. Approximately for two years. In November 2012, they reminded: got from the box, discussed for 10 minutes and adopted with 265 votes. Tellingly, project passed in its original form, unedited, without any legal advice, and previous edits.

But how did they manage to push through the parliament as dubious and unconstitutional project? In fact, it's simple - successfully matched the moment. Suffice it to recall what kind of political brouhaha rose at the end of last year about election results, and everything becomes clear.

So, November 6, 2012 the Law "On the National Referendum» (№ 5475-VI) was received successfully. All threats and attempts to undo the opposition through the Constitutional Court were failed. Open letters to human rights and legal professional bodies to the President with a request not to cause damage to constitutionalism and legal system also did not affect the situation. In addition, the law on the referendum was not approved even by main legal department of Supreme Council, evidence of that is a message on website of Parliament that "a project does not fully meet the Constitution of Ukraine" and suggests a form of referendum in which the state government can influence its final result.

Now we should think seriously about what we got bundled with traditional means of expression of direct democracy, and why second wave of panic is rising in face of political experts and media. Let's consider the most controversial points of new law.

Pitfalls for Constitution

First, the referendum gives opportunity for people's initiative to amend Constitution without participation of Ukrainian Supreme Council, which already runs in contrary with Articles 154-158 Section XIII of the Constitution.

Secondly, there is provided an option to cancel Constitution without making new commitments. What it can turn into practice? There are two possibilities: either return of the Constitution of the USSR in 1978, which in itself is absurd, or complete elimination of the Constitution and, therefore, state, as its entire legal system is based exactly on it.

Third, the Act regulates national referendum right of people to accept new Constitution of Ukraine without any preparation and issuance of its project for discussion. Such a scenario could result in usurpation of power in case of manipulation in process of organizing referendum. Opposition is feared of that, suggesting that because of the "regionals" the President will have the unique ability to change Constitution and laws for themselves, bypassing MPs from Parliament and the Constitutional Court.

Fourth, if submitted to referendum law is approved and will come into force from the date of announcement of referendum results by CEC (as prescribed by new law), it would be a flagrant violation of the Constitution, which prohibits enactment of laws non-informed to the public.

Nuances of organization and performance

Under the new law, it is possible to carry out four types of all-Ukrainian referendum, legislative, general, and constitutional ratification, and appoint them can either President or Parliament.

Through national referendum one can reach almost any question of changes in laws and the Constitution to extend presidential term and entry into the Customs Union. Restrictions are only a small list of questions on state budget, taxes and amnesty of prisoners. Tellingly, number of questions submitted for consideration on the same topic is not regulated, but each of them will immediately go into effect in event of positive results of the vote.

Actual procedure of referendum is also puzzling. Confusion among citizens, because it is unclear how people can collect on their own without help of authorities up to 2 million people in initiative group, and then within 40 days - 3,000,000 signatures in 2/3 regions of Ukraine. And this, by the way, is 75 thousand signatures per day.

Confusion is among political parties, because they are fit in no way into organization and supervision of referendum. Party as well as public organizations, can not initiate referendum, not part of regional and district councils, to be observers to them is also prohibited by law. There is a violation of Art. 36 of the Constitution, which sets promotion of parties in formation and expression of political will of citizens.

Experts also insist on lack of democracy in system referendum. According to them, result and all stages of popular elections will be under influence of government and local authorities. The thing is, by law, that local governments form commissions.

In addition, the law for some reason does not set out minimum number of participants for recognition to be law enforced. Therefore, even the smallest number of votes will be enough to call any type of referendum productive.

Official "advertorial"

Journalists had seen several professional surprises for themselves. Perhaps one of the most interesting - is the official "advertorial". Let me remind you that "advertorial" is a kind of paid advertising material that appears in media without proper notice, often has political overtones and gross violation of Ukrainian legislation. Since the main goal of "advertorial" is to present embellished facts, unbalanced opinions of experts or political opponents, it is yet another confirmation of the fact that articles of law, which defines conditions and coverage of the referendum campaign in the media, we are talking about the "advertorial".

First, the document clearly states that mass media has the right to publish campaign material only after signing of contract with initiative group, which automatically puts customer over interests of media workers.

Second, law sets value of official campaign material, contrary to democratic rules of journalism.

Third, document does not say anything about balanced supply of different points of view on issues put up for referendum.

However, penalties for independent coverage of referendum by media personnel, unforeseen in contract with initiative group, are set out quite clearly. Violation of rules threatens to issue a temporary ban publication or suspension of license until the end of referendum. In fact, law prohibits journalists from any "manifestation of creativity" in relation to plebiscite, other than official propaganda, as any "objectionable" material in direction of organizers may deem illegal campaigning and apply tough sanctions. In order to avoid false impression that such measures against journalists are adequate for comparison, consider a similar law in Russia, a nation that has no different democratic privileges for media.

So, what we have: in Art. 55 of the Law "On the Referendum of the Russian Federation", it is said that "information materials submitted in media or distributed by other means must be factual, objective and must not violate equal rights of voters". In addition, all types of media are required to file materials for initiative groups in separate unit, without comment and without discrimination of any kind of initiative group on referendum (assuming an equal allocation of newspaper or network space and air time). Perhaps there is something to think about ...

Preparations in full swing: what to expect?

Although scenario of Ukrainian will has not yet been played out, preparation is boiling and poster adorns a long time. Power base is preparing intensively for trial of referendum, planning to test law this summer, not to leave such an interesting legislative mechanism untested. Initially, the Cabinet has initiated a number of legislative changes: setting mode of financing commissions, and CEC in February approved a number of different forms up to signs for commissions.

On background of considerable number of disappointing formal facts alarming is unbridled optimism of population in relation to the new law. After all, many Ukrainians, or are venturing into wilds of received document, or prefer to believe in foggy future - with their own hands to make a difference, and apparently forgetting that in our country the law is not always "the highest expression of human wisdom, using experience of the people for benefit of society".

The Law on National Referendum is a clear confirmation. After all, other than that adopted in violation of Parliament rules, contrary to the Constitution of Ukraine and European standards of organization and conduct of referenda, it hides a powerful psychological levers of influence on society. Suffice it to recall one of the observations of French media researcher Jean-Paul Gourevitch that properly formulated question is able to simulate opponent’s behavior and affect his response. For example we will not go far: late last year, Ukrainian journalists in cooperation with lawyers and social scientists conducted an interesting experiment. They spread the rumor about changing labor laws, have developed the law on introduction of Christmas holidays for a month with double meanings and threw it to the people to vote. Results exceeded all expectations: many participants answered "yes" to holiday and did not even pay attention to what they actually voted for inability to get vacation in the first six years of working, reduction of annual holiday to two days leave and Christmas holidays without payment. You should agree - results are entertaining.

However, if you model a situation similar to that, our government wishing to take advantage of technology, in this case, democratic law will become unpredictable "weapons of mass destruction" and serve as a tool for approval of an authoritarian regime, which at one time Alexander Lukashenko in Belarus, and Bashar al-Assad in Syria successfully brought through.