But it is also unfair to neutralize the referendum juridically
Verkhovna Rada has received sort of a time-out in the process of legislative confirmation of the referendum results. Having submitted two bills to the Constitutional Court (CC) and still awaiting its verdict, the People’s Deputies have an opportunity to prepare to debate the bills in the session hall. In the coming weeks, the lawmakers will have to decide which of the proposed bills they will support and whether it is possible to reduce both of them to a certain common denominator. Here there are two points of view. The first is that the bills offer such different ways and mechanisms of implementing the referendum results that it is practically impossible to reduce them to the common denominator. The other view suggests that it is quite possible to work out a single draft law based on the positive sides of both the alternative and presidential bills. People’s Deputy Dmytro TABACHNYK (Regional Revival), “an adept of strengthened presidential power in a country with an underdeveloped market economy and a still to be built civil society” (his own definition of his political views), takes the latter position.
“There are ample grounds for both the presidential and the alternative bills to be studied and at least understood, for each of them contains valuable provisions which could significantly enrich the Constitution.
“As to the presidential bill, it suggests that referendum results be mechanistically incorporated into the Constitution. It is clear in principle. But what is not quite clear is why the bicameral parliament issue has been put aside. That this issue is left outside the proposed bill allows us to point out a certain shakiness of this bill’s positions: you cannot arbitrarily implement the people’s will (even by wish of the highest legislative body) only by three quarters. Either the referendum results should be taken account of and implemented 100% or there should be a clear-cut explanation of why one question, and not two or three, remain unconsidered.”
“This is usually explained by the fact that the formation of a bicameral parliament is the most complicated issue which requires serious preparatory work.”
“Sure, even professional lawyers find it quite difficult to draw up the structure of a bicameral parliament, for this work entails radical structural changes in the Constitution and a separation of powers between the two legislative chambers. But it is this work that would make the presidential bill more substantiated and convincing, less fragmentary. As yet nobody has given a clear and logical answer to the question: to what extent is it possible in principle to consider three issues without the fourth? In my opinion, the Constitution is too serious and fundamental a law to just be patched up. Speaking figuratively, one should first cut the cloth to measure and only then make the final model of the state’s dress suit. So the attempt to consider three questions approved in the referendum separately from the fourth is the main drawback of the presidential bill: all four questions should be considered together.
“Conversely, the other bill contains an attempt to mix the referendum results and introduce additional counterweights to head off further increase presidential power. I think this is a politically rational move. If we cast off the veneer of juridical sound bites, we can say that this bill suggests incorporation of the referendum results into the Constitution in such a way that these results go unnoticed.”
“It seems to me that what the alternative bill suggests is not preserving the way the branches of power interact now but changing it by redistributing the powers of the executive and the legislative branches in favor of the latter. This would mean, in particular, that the lower house, Verkhovna Rada, of the new bicameral parliament would the right to appoint and dismiss the premier and ministers, while the upper house, the Senate, would appoint and dismiss the Prosecutor General (now a presidential prerogative), appoint full-time judges for their first term (also in the President’s competence now), etc.”
“I would add that the alternative bill suggests changing the structure of power so as to leave the signs of balance between the branches of power intact and pretend that there was no referendum at all. Naturally, the second bill does not go so far as to suggest that the referendum results don’t exist. It only tries, using legal loopholes, to do so that the past referendum should not tell on the correlation and weight of the political positions of parliament and the President. This is unfair: the alternative bill’s authors should understand that the referendum was won by the executive power and the forces that backed the President. The referendum swings the structure of relationships between the branches of power in favor of the executive in general and the President in particular. This situation is largely conditioned by public sentiments. The referendum results, no matter how interpreted, aim to strengthen the positions of presidential power and reduce the influence and authority of parliament. It is indecent and wrong to ignore this and try to legally neutralize the referendum results.”
“What do you think should be the role of the parliamentary commission in the legislative implementation of referendum results?”
“The parliamentary commission should study both bills and try to get implemented all questions approved in the referendum, even though this will require a radical revision of the Constitution. The consideration of and making amendments to all the questions approved in the referendum is fairer in moral terms, more pragmatic from the legal standpoint, and, finally, more promising from the political perspective.
“I think that now, at the stage of the legal enactment of referendum results, the parliamentary commission would do well to cooperate with the presidential commission to be formed to work on question four. That this kind of cooperation is quite possible and productive is demonstrated by the two years experience of the Constitutional commission represented by members of parliament and the President’s team on a fifty-fifty basis. It is a rather difficult and painful cooperation. Yet, it once mad№e it possible through compromise to give birth to the text of the Constitution, and I do not think the fundamental law’s text is too faulty and juridically inadequate.”
“In other words, you believe the proposed bills can be reduced to a certain common denominator in the process of being worked out?”
“Yes, if the rules of the game are the same, i.e., to implement the referendum results with respect to all the four questions, to seek a compromise, and, what is extremely important, not to be hasty in such an endeavor as making amendments to the Constitution. The referendum results should be legislatively enacted in an extremely careful and balanced way, for this proceeds from the global nature of this process and its huge influence on all the spheres of public life. Any haste in this process is not only out of place but also dangerous.”
