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Doc. 8695
3 April 2000
Reform of the institutions in Ukraine
Opinion1
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Mátyás Eörsi, Hungary, Liberal, Democratic and Reformers’ Group
I. Conclusions of the Committee
The referendum on the reform of the institutions which the President of the Republic of Ukraine intends to hold on 16 April 2000 is inconsistent with the procedure set forth in the Ukrainian Constitution. The Committee on Legal Affairs and Human Rights therefore endorses the Monitoring Committee's recommendation.
II. Explanatory memorandum
A. Introduction
1. The Committee on Legal Affairs and Human Rights has been asked to give an opinion on the report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), presented by Ms Severinsen and Ms Wohlwend. This report concerns the decision taken by decree on 15 January 2000 by President Kuchma to hold a nation-wide popular initiative referendum on 16 April 2000.
2. The Monitoring Committee recommends that the Committee of Ministers suspend Ukraine's membership of the Council of Europe if the so-called "referendum" on reform of the institutions scheduled for 16 April takes place under the present circumstances.
3. The President of the Assembly has asked the Venice Commission to prepare an opinion on the merits of the proposed reforms and on the manner of their adoption. This opinion was adopted by the Venice Commission at its meeting on 31 March-1 April 2000.
4. The President of the Assembly also wrote to the President of Ukraine, on 31 January 2000, asking him to consult all the main political movements in Ukraine so as to reach as broad a consensus as possible prior to taking new measures with regard to the organisation of the referendum. In a reply dated 14 March 2000, President Kuchma explained the reasons which justified the holding of the referendum. This letter has been distributed to the members of the Assembly (see Doc 8674).
5. What now needs to be done is to study the provisions governing amendments to the Constitution set forth in the Constitution and to verify whether the aforementioned decree is consistent with these provisions. We will then consider the possible consequences of the referendum to be held on 16 April 2000.
B. Provisions governing amendments to the Constitution
6. Chapter XIII of the Ukrainian Constitution adopted on 28 June 1996 sets forth provisions governing amendments to the Constitution.
7. Article 155 stipulates that a draft law introducing amendments to the Constitution of Ukraine, with the exception of Chapters I, III and XIII, previously adopted by the majority of the members of the Verkhovna Rada of Ukraine, shall be deemed to be adopted if, at the next ordinary session of the Verkhovna Rada, no less than two thirds of the members have voted in favour thereof.
8. Article 156 stipulates that a draft law introducing amendments to Chapters I, III and XIII of the Constitution shall be submitted to the Verkhovna Rada by the President of Ukraine, or by no less than two-thirds of the members of the Verkhovna Rada, and provided it is adopted by no less than two-thirds of the members of the Verkhovna Rada and approved by a referendum proposed by the President.
9. Chapter III of the Constitution concerning elections and referenda, stipulates in Article 72 that a national referendum on popular initiative shall be called at the request of no less than three million citizens of Ukraine who have the right to vote, provided that the signatures in favour of calling the referendum have been collected in no less than two-thirds of the oblasts, with no less than 100 000 signatures in each oblast.
10. These are the provisions set forth in the Constitution with regard to its revision.
11. According to President Kuchma the decree of 15 January 2000 calling the all-Ukrainian referendum on popular initiative, was issued in response to a request by more than 3 million citizens of Ukraine, whose signatures were duly registered by the Central Electoral Commission.
12. The preamble to the Decree states that its aim is to:
a) consult the Ukrainian citizens on a number of important questions that could influence the future of the country;
b) introduce the corresponding changes to the Constitution of Ukraine in the light of Art. 72 and Art. 106 para.6 of the Constitution of Ukraine.
13. Article 106, para. 2 stipulates that the President of Ukraine shall "call an all-Ukrainian referendum regarding amendments to the Constitution of Ukraine in accordance with Art. 156 of this Constitution". As the referendum proposed by the President does not follow the procedure set forth in the Constitution, the referendum could not be legally binding.
14. However, even a consultative referendum has consequences. For example, if the majority voted in favour of lifting parliamentary immunity, the position of members of parliament would be under constant threat.
15. Moreover, your Rapporteur is of the opinion that Article 156 must be interpreted as providing that a draft law introducing amendments to the Constitution must first be submitted to Parliament and then approved by referendum.
16. Furthermore, the wording of the preamble to the President's decree is ambiguous since in paragraph a. it claims to "consult the opinion of Ukrainian citizens" and in paragraph b. it talks of "introducing the corresponding changes".
C. The scope of the amendments proposed in the referendum
17. Six questions will be asked in the referendum. They are reproduced in the appendix to the present document.
18. Question No 1, which really comprises two questions, concerns a vote of no confidence in the current parliament, while the second part concerns increasing the President's powers to dissolve parliament.
19. The constitutional provisions governing the dissolution of parliament are Article 90 and Article 106 paragraph 8 of the Constitution.
20. Articles 90 and 106 paragraph 8 stipulate that the President of Ukraine may remove the authority of the Verkhovna Rada of Ukraine if the Parliament fails to meet for thirty consecutive days during an ordinary session.
21. In this particular case this condition has not been met and the dissolution of Parliament by this means would therefore be contrary to the Constitution. Or else, the President would have to wait thirty days after the referendum to ensure that this condition was met. The second part of the question concerns an amendment to the Constitution. This question should be dealt with separately and should be consistent with the provisions governing amendments set out in the Constitution.
22. At all events, it is incomprehensible that a single reply should be required to the two questions.
23. Question No 2 concerns an amendment designed to increase the President's powers to dissolve the Parliament. Its wording is very unclear.
24. It is obvious that to deprive the members of parliament of the immunities deriving from their functions, as is proposed in Question No 3, would be contrary to basic parliamentary principles.
25. A significant amendment of the type proposed in Question No 4 would be possible, subject to compliance with the provisions governing amendments to the Constitution.
26. The amendment proposed in Question No 5 would also be possible, subject to compliance with the provisions governing amendments set forth in the Constitution.
27. Question No 6 proposes the adoption of the Constitution by referendum.
28. Article 75 of the Constitution stipulates that the sole body of legislative power in Ukraine is the Parliament - the Verkhovna Rada.
29. In order to disempower the Parliament to the benefit of the people, it is also necessary to follow the procedure for amendment of the constitution. At all events it would first be necessary to submit a draft law to parliament and then hold another referendum.
D. The judgment of the Constitutional Court of Ukraine and the opinion of the European Commission for Democracy through Law ("Venice Commission)
30. According to the information I have received, the Constitutional Court of Ukraine, in its judgment of 29 March 2000, declared the referendum constitutional with the exception of the first and the sixth questions which it considered to be illegal. Apparently 15 out of the 18 members of the Court voted in favour of this judgment. The referendum may therefore be held, as foreseen, on 16 April 2000 but amputated of its first and last questions. It would not be legally binding.
31. At its meeting on 31 March-1 April 2000, the "Venice Commission" arrived at similar conclusions. This opinion should be available to members of the Committee on Legal Affairs and Human Rights and of the Assembly.
E. Conclusions
32. As can be clearly seen from the existing Constitution, the referendum announced by the President of the Republic of Ukraine has no legal basis.
33. If this referendum were to directly result in amending the Constitution, the Council of Europe should not recognise the new Constitution.
34. All of the questions have the same aim: to strengthen the President's powers to the detriment of the Parliament and establish a presidential regime.
35. In view of the above-mentioned conditions the Rapporteur must support the Monitoring Committee's proposal.
APPENDIX
Questions to which voters would be called upon to reply
in the referendum to be held on 16 April 2000
in accordance with the Presidential Decree of 15 January 2000
Question 1
Are you in favour of expressing no confidence in the XIVth legislature of the Verkhovna Rada of Ukraine and of introducing a corresponding amendment to Article 90 of the Constitution of Ukraine with the following content :
“in the case of a vote of no confidence in the Verkhovna Rada expressed at all-Ukraine referendum the President of Ukraine is empowered to dissolve the Verkhovna Rada of Ukraine”?
Yes
No
Question 2
Do you support the proposal to complete Article 90 of the Constitution of Ukraine with a new third part with the following content :
“The President of Ukraine can suspend the powers of the Verkhovna Rada of Ukraine, if the Verkhovna Rada of Ukraine fails to form a stable and operational majority in one month; or if it fails to adopt the State budget of Ukraine prepared and submitted in due form by the Cabinet of Ministers of Ukraine in three months”. That could be considered as an additional reason for the dissolution of the Verkhovna Rada of Ukraine by the President of Ukraine, with a corresponding amendment to paragraph 8 part one of Article 106 of the Constitution of Ukraine :
“and other cases as established in the Constitution of Ukraine”?
Yes
No
Question 3
“Do you agree with the necessity to limit the immunity of the National Deputies of Ukraine and to delete paragraph three of Article 80 of the Constitution of Ukraine which reads:
“National Deputies of Ukraine cannot be held criminally liable, detained or arrested without the consent of the Verkhovna Rada”?
Yes
No
Question 4
Would you agree to reduce the number of National Deputies of Ukraine from 450 to 300 and to replace, in this context, in the first part of Article 76 the words “four hundred and fifty” by “three hundred”, and to make corresponding changes in the legislation on elections?
Yes
No
Question 5
Do you agree that it is necessary to create a two-chamber parliament, where one of the chambers would represent interests of the Ukrainian regions, and to introduce the corresponding changes to the Constitution of Ukraine and legislation on elections?
Yes
No
Question 6
Do you agree that the Constitution of Ukraine must be adopted through an all-Ukraine referendum?
Yes
No
Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8637 and Reference No 2477 of 28 January 2000
Opinion approved by the committee on 3 April 2000
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge