Ukraine's April 16 referendum still a subject of controversy (03/26/00)

Ukraine's April 16 referendum still a subject of controversy

by Roman Woronowycz
Kyiv Press Bureau

KYIV - The international debate between Ukraine and the Parliamentary Assembly of the Council of Europe (PACE) that has developed over Kyiv's push for a national referendum continued on March 21 when a Ukrainian member of the organization's expert committee on constitutional law said it would rule the national poll illegal.

National Deputy Serhii Holovatyi said he had read the preliminary findings of the five members of Venetian Commission of the Council of Europe that have been assigned the task of determining the legality of the national referendum slated for April 16 - all of whom have determined that it meets neither international democratic standards nor stipulations in the Constitution of Ukraine and, therefore, should be deemed unconstitutional.

Mr. Holovatyi, a staunch critic of the administration of President Leonid Kuchma, made public the concerns of the five constitutional experts during a press conference, which led the Ukrainian presidential administration to criticize the PACE for circulating the findings.

"All five experts agree in their assessments regarding the Ukrainian referendum. They are of a single mind that there are no constitutional grounds for holding a referendum and that it is difficult to determine the juridical nature of the referendum, whether it is consultative or constitutional," explained Mr. Holovatyi.

He said the Venetian Commission experts see significant problems with five of the six questions that are to be put to the Ukrainian people on April 16. In the first question - on a vote of no confidence in the Verkhovna Rada and a change in the Constitution that would give the president the right to dismiss the Parliament should such a vote be supported - the experts noted, according to Mr. Holovatyi, that it is actually two questions, and therefore illegally structured. In addition, the first part is unconstitutional in that the ability to render a vote of no confidence by the people is not found in Ukraine's fundamental law. Furthermore, as Mr. Holovatyi explained, the experts determined that the question does not meet international standards.

They criticized the second question - which would give the president the right to dismiss the Verkhovna Rada if it could not form a working majority or could not pass a budget in three months' time from the moment it was presented by the Cabinet of Ministers - also on the basis of international norms. They also found that the phrasing "fails to form a working parliamentary majority" was too vague to be acceptable.

"The experts asked the question, who is to decide how to decide that a working parliamentary majority was formed," explained Mr. Holovatyi.

In the third question - which deals with removing immunity from criminal prosecution held by the national deputies - the commission members agreed that such immunity is an international standard, which guarantees the independence of the parliamentary body from outside influences, and should not be called into question.

The experts had no problems with the fourth issue presented in the national referendum, on reducing parliamentary seats from 450 to 300, but questioned the need for the fifth, which asks citizens' opinions on a bicameral parliament. According to Mr. Holovatyi, since Ukraine is a unitary state, the Venetian Commission experts did not see the need for a bicameral legislature in a democratic society, especially one in which the second house might be appointed by the president rather than elected.

And on the last question, whether the Constitution of Ukraine should be ratified by the nation, the commission experts decided that it is obviously unconstitutional since that is not prescribed in the Constitution, explained Mr. Holovatyi.

It is highly unlikely that President Kuchma, who signed the executive order scheduling the All-Ukrainian National Referendum, as it is officially called, will take into consideration the preliminary findings of the Venetian Commission, or for that matter its final rendering. He has called the Venetian Commission nothing more than an advisory body.

Mr. Kuchma and the PACE have been at loggerheads ever since a monitoring commission from the inter-parliamentary assembly recommended to the larger body to suspend Ukraine's membership should the country hold a referendum. The Ukrainian president has said the only body that is capable and duly authorized to determine the constitutionality of the plebiscite is the Constitutional Court of Ukraine

On March 22 Oleksander Martynenko, the president's spokesman, accused Mr. Holovatyi of having a personal political agenda, adding that Mr. Holovatyi failed to present all the facts.

"Mr. Holovatyi, unfortunately, often says only what supports his convictions," said Mr. Martynenko. "He did not mention that the Venetian Commission also said that only the Constitutional Court is to determine whether there exists a sufficient legal basis for holding the national referendum."

The presidential spokesman criticized the publication of the initial findings of the Venetian Commission and said that using the mass media to put pressure on Ukraine "brings into question the ethics of those efforts." Mr. Martynenko added that, should the Constitutional Court declare the referendum illegal, the president readily would cancel it.

President Kuchma, however, has maintained that if the national referendum is canceled it would lead to the break-up of the recently formed parliamentary majority and further political conflict and instability in the country.

Two separate petitions have been filed by Ukrainian lawmakers asking that the Constitutional Court render a judgment on the legality of the national referendum. Ukraine's highest constitutional authority is currently reviewing the various documents and was to have issued its findings by March 18. That date has now been pushed back, with a decision expected in the first week of April. The court cited protracted open hearings in the case as the reason for the delay.

Meanwhile, the Venetian Commission is scheduled to meet on March 31, when it will formally render its decision on the Ukrainian national referendum. Mr. Holovatii said he believes that the preliminary decisions of the individual members of the expert panel will be supported by the entire commission at that time.

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