Last Chance that Never Was?

The sooner the Constitutional Court rules on the President’s referendum decree, the more passions rage over the issue and the more interesting and mysterious events are unfolding around the Referendum Project. The latest proposal that came from two factions, Rebirth of the Region and SDPU(o), is to appeal to the President to strike off two referendum questions: No. 1 (no confidence in Parliament) and No. 6 (adopting a Constitution by referendum).

Oleksandr Volkov, Regional Rebirth leader, laid down the initiators’ motives in interview with The Day: “We did not foresee that our joint [with SDPU(o)] initiative would not be supported by Deputies. We hoped our members of Parliament would show adequate common sense. Many Deputies came up to Oleksandr Zinchenko, Viktor Medvedchuk, and me and asked us to find some juridical loophole, a way out of the current situation, so that we stay here and work. On our part, we turned to the President and referred to him the Deputies’ demands. He answered that he could not cancel any items to be included in the referendum, for this is the initiative of the public. ‘But if you manage to come to terms, this way or another, I am ready to take a step to meet you. So will you think how to do this?’ the President said to us.”

“The appeal,” SDPU(o) faction leader Oleksandr Zinchenko told The Day, “had been discussed well in advance at a Coordination Council meeting. However, at the time of voting, only two factions confirmed their readiness to support the parliamentary appeal to the President. Hence this question can only be raised again on March 23. But the Constitutional Court could pronounce its verdict well before then, after which nobody will be able to delete even a comma from it.” Thus, according to initiators of the appeal to the President, the People’s Deputies themselves lost their last chance to influence the referendum situation.

Commenting on the legal aspect of a “legal loophole” suggested by the appeal initiators, People’s Deputy Serhiy Holovaty noted, “If all the referendum documents were to be submitted to Verkhovna Rada and the latter were to make a decision on holding the referendum, this step would be justifiable. This happened in 1991, and this should have been done now, under the legislation in force. But now that all has been decided it would be absurd to moot this proposal in Verkhovna Rada on the eve of the Constitutional Court ruling.”

Judging by Mr. Volkov’s words, the President does not rule out a chance to “modify” one way or another his referendum decree, but it is not quite clear in this case what to do with Mr. Kuchma’s statement that “The final decision on holding the referendum will be made by the Constitutional Court.” However, in doing so, the President offers the Deputies a kind of “joint responsibility” for the decision made. It is very significant in this aspect that most parliamentary groups and factions did not wish to share this responsibility.

Simultaneously, according to a number of lawmakers, the President himself has a chance to influence the situation concerning the referendum. In particular, Borys Bezpaly stressed to The Day, “Suppose the President was first to sign the decree on the demand of three million citizens. And then, if he entertained some doubts, he, as the guarantor of the Constitution, could protest his own decree and alter it in the part he thinks is unconstitutional. To do so, the President has every opportunity: a huge apparatus and well-skilled lawyers. So he might as well remove from his decree the questions he considers unconstitutional and then turn to the Constitutional Court for the final ruling.” Most Deputies seem to be unwilling to get involved in the legally vague situation concerning the referendum, having decided to act according to the principle of you’ve made your bed, now lie on it.

Now the situation with the referendum initiators appears quite complicated: should the decree (or some of its provisions) be pronounced unlawful, the image and clout of its initiators will suffer a heavy blow. Parliamentary support would do no harm to the referendum initiators in any case. However, the legislators came out against corporate self-protection and decided to await the Constitutional Court ruling to be made in the next ten days.

INCIDENTALLY

“I want all Ukrainians to know: if, God forbid, the Constitutional Court rules, under the pressure of certain political forces, that the decree on the referendum is unconstitutional, the next day there will be no parliamentary majority,” the President said in a interview with journalists in Baku, where he was on a two-day visit. In his opinion, in this case this country will again see the face-off of two branches of power, which it has had for the past six years. “Who will be responsible for this?” the President asked. Commenting on the opinion of some Verkhovna Rada deputies that the question of no confidence in parliament should be removed from the referendum, Mr. Kuchma said: “I do not like the No. 1 question either,” Interfax-Ukraine reports. Mr. Kuchma said he had instructed jurists to “look at this matter from all points of view.” At the same time, Mr. Kuchma stressed that, while signing the referendum decree, he only did his constitutional duty. “I am by no means going to retreat,” the President said firmly.