Constitutional Court rejects two questions of Ukraine's controversial national referendum (04/02/00)

Constitutional Court rejects two questions of Ukraine's controversial national referendum

by Roman Woronowycz
Kyiv Press Bureau

KYIV - Ukraine's Constitutional Court on March 29 rejected as unconstitutional two of the six questions of the April 16 national referendum and decided that the national poll cannot be both consultative and determinative in nature.

While stating that the government could not claim that this national referendum was a consultation with the nation, the court said the decisions that will be made must be carried out by the branches of government.

"This is not and cannot be a consultative referendum," said Constitutional Court Judge Pavlo Yevhrakhov at a press conference after the decision of the court was read by Chief Judge Viktor Skomorokha. "It has an imperative character. The Verkhovna Rada, the Cabinet of Ministers and the presidential administration must implement and adhere to the results."

Among the several issues that had been publicly debated in the last two months since the highly controversial referendum was scheduled was whether the questions to be asked would all be enforceable if approved by voters or whether, as the presidential administration had suggested, they might be merely consultative in character.

The decision, while pleasing opponents, did not draw criticism from President Leonid Kuchma, who has vigorously supported approval for the constitutional changes requested and signed the presidential decree that set the date for the poll.

The court's ruling came after two separate petitions to the Constitutional Court, filed by separate groups of 103 and 108 national deputies, challenged the decree signed by the president on January 14.

The president has said that, as the guarantor of the Constitution, he was compelled to order the national referendum after a popular initiative that began in the Zhytomyr region resulted in nearly 4,000 signatures supporting the effort. Many critics of the effort insist, however, that it was stage-managed by presidential supporters to broaden his political powers.

The Constitutional Court, the country's highest constitutional authority, ruled after public hearings and private deliberations that lasted a month that the two questions violate principles of the Constitution and, therefore, cannot be brought for a public vote.

The court decided in regard to the first question, which asks whether the public supports a vote of no confidence in the Verkhovna Rada, the Constitution does not foresee a national vote of no confidence as an instrument by which the Parliament can be dismissed. It rejected the notion that the president could retain the authority to dismiss the Parliament in such a situation as a moot point, given that the first part of the question is illegitimate.

The court also decided that the referendum's sixth question, on the right of the people to approve a constitution through a national referendum, also is unconstitutional because it circumvents the process for constitutional change. It explained that the procedure, which is described in detail in the current Constitution, must also include "a determination of the popular will for the necessity to approve a new Constitution," which the court decided is not evident in the language of the ballot. Without such a grounding, a threat could arise that Constitutional rule could be weakened and human rights and freedoms reduced, ruled the Constitutional Court.

The rendering leaves four Constitutional questions for the Ukrainian electorate to decide on April 16, which, in the order they will be presented on the ballot, address: increasing presidential authority, enabling the president to dismiss the Verkhovna Rada if it should fail to form a working parliamentary majority within a month or fail to pass a budget within three months; limiting national deputies' immunity from criminal prosecution; reducing the number of national deputies from the current 450 to 300; and establishing a bicameral parliament in Ukraine.

Opponents of the national referendum immediately applauded the court's decision. Serhii Holovatyi, a national deputy and a leading critic of President Kuchma and the national referendum, called the ruling a "failure of the efforts of dictators, oligarchs and opportunists outside the law." The remarks were in reference to the businessmen and political leaders close to President Kuchma whom Mr. Holovatyi has accused of trying to build an autocratic regime in Ukraine to protect their self-interests.

Mr. Holovatyi emphasized that the court's rejection of the sixth question was most important because it ruled that a new Constitution could not be ratified by a popular referendum.

"Beginning today, Ukraine is protected and its Parliament is protected. Ukraine will never go the Belarusian path," said Mr. Holovatyi.

He did not concede, however, that the Constitutional Court had dealt properly with the questions that were allowed to remain. The only reason all six questions were not rejected, according to Mr. Holovatyi, was because the court had felt intense political pressure to save the executive branch complete embarrassment in pushing a referendum with constitutionally dubious questions.

Another major critic of the national referendum, the Parliamentary Assembly of the Council of Europe, which has threatened to suspend Ukraine's membership should the referendum be held, released a statement supporting the Constitutional Court's rendering.

"It is a reasoned decision of democratic institution which shows the maturity of a democratic society," said Lord Russell Johnston, the head of the Council of Europe, in a statement released from Strasbourg, France, according to Interfax-Ukraine.

President Kuchma had no immediate comment on the Constitutional Court ruling. His spokesman, Oleksander Martynenko, said in a terse statement made during a weekly press briefing that the president "took the decision in stride."

The president's legal advisor, Leonid Pidpalov, who along with Minister of Justice Suzanna Stanik is believed to have authored the presidential decree that Mr. Kuchma signed, was defensive in answering reporters' questions in what is ostensibly a setback for the Kuchma administration. He said he was not disturbed by the court's rejection of two of the referendum's points, while emphasizing that President Kuchma has said all along that the questions were not perfect. He also took pains to underscore that the presidential administration did not write the questions.

"Remember that the questions were formulated by the initiators of the referendum," said Mr. Pidpalov.

Mr. Pidpalov said he hopes that the Council of Europe's Venetian Council, which has been holding an independent review on the constitutionality of the questions posed in the Ukrainian referendum and was expected to make its own ruling on March 31, would take into account the decision rendered by Ukraine's highest constitutional authority in making its determination.

By the evening of March 29 President Kuchma had signed a new decree eliminating the two questions ruled unconsitutional and bringing the referendum decree into line with the Constitutional Court's ruling.

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