This article is part of our special report EU-Ukraine Relations.
A law was recently adopted in Ukraine allowing constitutional change by referendum. The law should be carefully welcomed by the EU, argues Bruno Vandecasteele.
Bruno Vandecasteele is a doctoral candidate at the Centre for EU Studies at Ghent University in Belgium.
"On 27 November 2012, Ukraine’s President Yanukovich signed a new law on national referendums that had been previously adopted by the Parliament, stipulating that referendums can be used to alter the wording of the Constitution, amend the Constitution and repeal laws amending the Constitution, as well as to resolve territorial issues.
The results will be valid regardless the turnout, and will be directly applicable. Other important issues, such as taxation, the budget, and amnesty, are not decided by referendum.
Referendums are not new in Ukraine; the independence of the country in 1991 was confirmed by a referendum. The main novelty of the new law is that referendums can now be used to change the Constitution.
A referendum is called by the president or the parliament after a popular initiative gathering three million signatures, on condition that at least 100,000 citizens in not less than two-thirds of Ukraine’s oblasts, or regions, support the organisation of a referendum.
The law was severely criticised by the opposition parties, which vowed to challenge it before the Constitutional Court. Opponents of the law have labelled it as a move to ensure President Viktor Yanukovich’s re-election by 2015: they stated that he may use the referendum for changing the Constitution – without involvement of the Parliament – to scrap the popular election of the president and instead let the Parliament choose a president through a simple majority vote.
Although it is not sure that such an amendment would be approved and thus that the critics are justified, the new law, formally increasing citizens’ participation in decision-making, resonates rather oddly with the democratic track record of Yanukovich’s rule.
Yet, there are good reasons to be (carefully) optimistic about the law’s potential to improve the state of democracy in Ukraine.
First, a referendum can be convened at the initiative of organising committees. There are no restrictions on the composition of such committees, so they can include any citizens, politicians, organisations, etc.
In fact, the law could considerably encourage civic participation. Following the recent statement of EU foreign policy chief Catherine Ashton that the EU is committed ensure the right to inclusion and participation in public life around the world, the EU should actually encourage such reforms.
Second, there is a minimal requirement of geographic spread: requests for a referendum should be supported by a number of citizens in a sufficient number of regions.
This can prevent the organisation of polarising referendums, for example, convened at the initiative of the Russian and/or Ukrainian language group without consent of the other.
Third, the absence of a turnout requirement during the referendum, and the fact that the results of referendums will be binding, ensures that ‘unsuitable’ referendum outcomes cannot be ignored by the government.
All Ukrainian citizens have the freedom to participate (or not) in decisions on the Constitution, while it is assumed that those who do not vote give a mandate to those who vote to decide on their behalf.
Fourth, there are no examples in history where an electorate took ‘inhuman’ or ‘irresponsible’ decisions by referendum. In principle, there is thus nothing to ‘fear’ from this new law.
At the same time, some caveats related to the new law should be noted. The requirement of three million signatures for a referendum to be organised is extremely high, as this number represents around 6% of Ukraine’s total population and around 9% of those entitled to vote. This casts doubt on the likelihood that any referendum will actually be organised.
Furthermore, in order to improve the quality of democracy in Ukraine, referendums will need to be held in compliance with international standards.
All stakeholders should have equal access to the media in order to inform the electorate about their point of view and their arguments, and during the polls all potential voters should have the possibility to express their opinion in security and anonymity. The votes must be counted and administered in a transparent way.
Finally, the fact that referendums are only possible for a limited number of decisions and that there is no direct democracy in all policy areas, may indeed indicate that increased participation of citizens is not the (only) goal of Yanukovich’ administration and his Party of the Regions, but that the law was adopted for a specific purpose.
In sum, the introduction of a new law on referendums in Ukraine is – in principle – laudable, and can lead to increased participation of citizens and of civil society organisations in decision-making.
This development should be encouraged by the EU. However, it remains to be seen if the law will in practice allow referendums to take place, and if they take place, the whole voting process should be attentively observed in order to make sure that it actually improves democracy in Ukraine."