Home > 5.1 Nature of the referendum > UKRAINE - Urgent Joint Opinion on the Draft Law 3612 on Democracy Through All-Ukraine Referendum
 
 
 
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Paragraph 47
 

For popular initiatives, Article 31 provides that the CEC is to review the proposed question/text for compliance with the law and can deny registration of the initiative team for “…non-conformity with the provisions of this Law of the question …” However, the provision does not specifically refer back to the relevant articles of the law on form/substance of questions. The CEC can reject the registration of an initiative team on grounds of its own decision on unconstitutionality of the proposed text/question; this seems to be the case since Article 31 of the draft includes a requirement for constitutionality but should be made explicit. Similarly, Article 31.1 provides that if the President fails to submit on CEC’s request a question/text to Constitutional Court or the court does not initiate proceedings within 40 days, the CEC is to either register or not register the initiative, therefore apparently enabling the CEC to register an initiative despite possible concern about its constitutionality. Putting a potentially unconstitutional question/text to referendum would not be in line with international good practice on respect for both procedural and substantive validity (though the CEC’s decision could be challenged in court and potentially make its way to the Constitutional Court via Supreme Court referral, which is discussed in more depth later on). Moreover, according to Article 21.1 of the draft, which reproduces the substance to Article 151.2 of the Constitution, not only the President, but also forty-five people’s deputies may submit the issue of constitutionality of questions that are proposed to be put for the all-Ukrainian referendum on people's initiative to the Constitutional Court. Article 21.1 and 31.1 should be coordinated.