What is a referendum? In legal terms, this is a direct form of democracy. In policy terms, it is the ultimate ratio in a dispute that can never be resolved peacefully. In the recent history of Ukraine, the ancient mechanism of executing democracy through referendums has been employed either as a tool to pressure opponents or as a PR ploy. For this reason, in this country referendums are something of which to be wary. They are often threatened but rarely ever called.

Make-the-Same-Mistake Operation

The same fate is most likely to be met by the nationwide referendum on NATO declared last year by one of the country’s political parties. This political force (which we will not name lest we be suspected of advertising this party) wanted it to know the population’s thoughts on Ukraine entering the Common Economic Space (CES) organization and NATO.

By the Constitution of Ukraine, referendums cannot be initiated by political parties. Such an authority is vested in the people alone. A petition to call a national referendum requires three million signatures to be collected in at least two-thirds of the total number of Ukrainian regions (oblasts), with 100,000 signatures at minimum collected in each of the regions. True enough, there are a number of procedural nuances upon which we will enlarge below.

Following the procedures established by law, more than 100 sponsor groups were established and collected 4,666,000 signatures by the deadline (March 1). The Central Election Commission (CEC), despite the numerous problems it dealt with in preparation for the parliamentary election, thoroughly examined lists of the signatures collected. The CEC head, Yaroslav Davydovych, told the press that “…CEC members are going to visit almost every region of the country to verify authenticity of the signatures and satisfy themselves that all the prescribed legal procedures have been fully complied with in collecting the signatures.” He also implied that his agency is unlikely to discuss the referendum issue at its regularly scheduled sessions pending the end of the election campaign.

This taken into account, the information obtained by this newspaper from unofficial, yet highly reliable, sources is surprising. Spot checks of the lists of signatures collected in support for an all-Ukrainian referendum on the country’s possible accession to the CES and NATO revealed crude violations of related legislation, some of them even containing indications of criminal offences. This, in particular, is about forgeries and falsifications, and also violations of the individual’s right to privacy through unauthorized collection and dissemination of confidential information concerning an individual without his/her knowledge or consent, which is punishable under Articles 160 and 358 of the Criminal Code of Ukraine.

This information was immediately extended to Minister of Internal Affairs Yuri Lutsenko and Public Prosecutor General Oleksandr Medvedko in an official letter signed by CEC Deputy Head Mykola Melnyk and CEC member Valeri Sheludko. It came to ZN’s attention that the former was directed by Davydovych to conduct signature checks in Khmelnytsky Oblast, and the last was committed for the same mission to the cities of Mykolayiv, Ochakiv, and Pervomaysk, and also Mykolayiv Oblast’s Novoodessa district.

According to the information that we obtained, the people canvassed in the Khmelnytsky Oblast all denied that they had signed any petitions in support of such a referendum. Nor did they provide any information about themselves to be included in the subscription lists, or provide any of their identification papers to sponsor groups, or do anything whatsoever in support of the referendum. They also said that they did not know who may have signed the subscription lists on their behalf.

The CEC members also established numerous cases of hand corrections in the lists, in particular of first and last names of citizens, date of signature, types and serial numbers of their identification documents, and data on their date of birth and birthplace. Some lists featured all of the signatures without exception corrected.

On numerous occasions, subscription lists were filled in by persons other than those specified in them, and the signatures had been collected beyond the timeframes established by law. In some cases, missing signatures of persons specified in the lists were counted in the total number of signatures noted at the bottom of each list.

The fact that the violations have been found in many of the administrative-territorial units (districts and cities) gives us every reason to believe that the violations are organized and systemic, and that violations of this kind may have taken place in other regions of Ukraine as well.

Having obtained this information, ZN immediately approached relevant authorities for comments. The Public Prosecutor General’s Office confirmed that it had received the above-mentioned materials from CEC members. The materials are now under examination, and a decision will be made within the timeframe established by law. The same reply came from the Ministry of Internal Affairs.

What remains to be done now is to wait for an official report on findings. But some of the facts identified by the CEC members are worrisome. On some occasions, over half of all the subscription lists verified have been forged. If these facts are proved conclusively, it will be evident that some policymakers in this country have learned nothing from the presidential campaign-2004. Has the country made the same old mistake?

CEC in a Time Crunch

We approached the Central Election Commission for comments. Unfortunately, neither Mykola Melnyk nor Valeri Sheludko were available for an interview. But CEC Head Yaroslav Davydovych was there to clarify matters for ZN.

Q: Is there any reason to claim that legal violations in the canvassing campaign for the referendum were on a massive scale?

A: Based on statements by CEC members Mykola Melnyk and Valeri Sheludko, they were massive, indeed. These two compiled office memorandums addressed to me in person. I have examined the memorandums, but for the time being I cannot make any conclusions for lack of information. I did not have the time to get into the heart of the matter as problems related to organization of the parliamentary campaign take much time to resolve. It is only natural that the election is, for the CEC, the number-one priority.

Q: Is that true that Melnyk and Sheludko had suggested that the referendum issue be put on the agenda for one of the CEC meetings but did not find support from the majority of other CEC members?

A: Some of the commission members considered the information available to be insufficient. They proposed that this issue be worked on together with law enforcement agencies before being tabled for discussion in CEC. Mykola Ivanovych [Melnyk] and Valeri Yevhenovych [Sheludko] handed over the materials they collected to law enforcement agencies for a more thorough investigation. By the current legislation, CEC members are vested with such an authority.

Q: When will the investigation come to an end? When will the CEC discuss the referendum issue at its regular session?

A: The former question should better be addressed to the Internal Affairs Ministry. As for the CEC, it will not be able to tackle the referendum issue in earnest until after the election campaign. True enough, there is one nuance there. The current law allows no more than 30 days for verifying documents obtained. This is to say that the verification work should be completed before April 10. Considering the amount of work involved with the election campaign, we will not be able to do the required verification work thoroughly within that tight time limit.

Q: If mass falsifications are a proven fact, and more investigative work is required to check all the documents thoroughly, can the time limit be extended?

A: It’s a good question. I say honestly that I cannot give a clear ‘yes’ or ‘no’ answer, as it’s for the first time that I face such a problem. Either way, the law does not make any provisions for the time limit for this given case to be expanded.

Q: Can the massive violations of the law provide sufficient grounds for banning the referendum altogether?

A: The constitution only specifies three preconditions for calling a nationwide referendum: three million signatures collected, in at least two-thirds of all the oblasts, with at least 100,000 signatures collected in each of the oblasts. If at least one of these preconditions is not complied with, the referendum will not be called. There are no other restrictions for this. We have been handed over subscription lists containing 4,666,000 signatures. Even if some of these are found falsified, the number remaining is still very big…

Q: Suppose the Internal Affairs Ministry and Public Prosecutor General’s Office prove that mass falsifications did take place but fail to compile and submit a relevant report by the established deadline of April 10. Will that mean that the signatures had been collected in full conformity with the law? Can this work be slowed down pending the end of the investigation?

A: I, again, cannot give a clear ‘yes’ or ‘no’ answers to this question. The law does not say anything about this… I would not like this issue to be too politicized. Though, there is no denying that such a problem does exist.

Q: Have any legal violations been reported in other oblasts?

A: Some of the CEC members have found no such violations; others are yet to finish their work there. It will not be long before the situation is fully clarified.

NATO, Referendum, and Authorities

President of Ukraine Viktor Yushchenko, in a statement issued in early March, said that “…nobody will go to NATO without a national referendum,” thereby unwittingly playing into the hands of true supporters of the referendum from among the opposition forces. It is no secret to anybody that the majority of influential members of the so-called “orange team” favor the country’s accession to the alliance, but for some reason prefer not to advertise this fact. Of the impressive number of political forces that participated in the events on the Maidan and are now running for parliament, only one has openly declared obtaining membership in NATO to be one of its priority objectives. Others prefer not to raise this issue at all in the hope of winning more support among the electorate.

The results of this “silent game” are evident. In Ukraine under President Kuchma, the North Atlantic Treaty Organization enjoyed more popularity than under President Yushchenko. Many of the opposition forces have clamored against plans for NATO membership. Others built their campaign on the dispute over NATO membership alone, stopping short at nothing, including blatant lies. The authorities and pro-government parties did not get around to denying the lies. After all, this is their problem, not that of those who lied.

But there are more problems, and these are more critical. These are local authorities who were (according to the law) to verify authenticity of the signatures collected in support of the referendum. In case of any violations were found, the authorities (according to the same law) had the right to terminate the activities by the sponsor group. The local authorities had much more time and opportunity to check the signatures than did the CEC.

But the authorities behaved in a strange way. In some regions they have, until recently, been unaware of preparations for a public opinion poll. In others, they were bewildered by numerous petitions from citizens claiming never to have signed the subscription lists, even though the law gives clear instructions on what is to be done in such cases. (As is known, the authorities of Mykolayiv Oblast alone received over 50 such petitions from citizens). If mass falsifications in collecting the signatures are proven, blame for this will be laid solely on those who have learned no lessons from the presidential campaign in 2004.

Even in the city of Kyiv and in Rivne Oblast (where the population is mostly NATO-friendly), the authorities did not find time to organize ideological counterattacks on NATO detractors, though they had all the right, including the moral right, to do so.

Some in power are searching for any plausible grounds for banning the referendum. But aren’t they too late? When it comes to law making, they are not that active. The Law on Referendums, adopted back in 1991, is (as legal experts claim) obsolete in two-thirds of its articles, the other one-third being inconsistent with the constitution. Updating the law did not bother previous authorities, and neither does it bother the new ones.

Rumor is that some office holders on Bankova are bashing the CEC for having legalized sponsor groups in support of the referendum that the authorities would be happy to never hear from again. Interestingly, in 2004 the then opposition charged the country’s top canvassing agency with all of the deadly sins, only to later unanimously confirm its mandates. And in 2005, the same people who made up the opposition yesterday and are in power today were honestly outraged by the CEC’s majority vote to give the green-light to the future referendum…

Will the Referendum Ever Take Place?

Yaroslav Davydovych does not know the answer. Nor does ZN. Yet we can make a couple of observations on this score. As we said before, the law on referendums is obsolete, but it is the only applicable legislation we have. Its flaws account for the failure of several referenda. For instance, the 1993 referendum (conceived, in fact, as a vote of no confidence in the president and the parliament) was a dead duck before it flew for a number of reasons, the major being that the Supreme Rada flouted the law and refused to approve the form of the ballot-paper. And there was no legal recourse to make MPs responsible for their disrespect of the law.

A few years later, the idea to hold another referendum was given up by the initiators when they ascertained that both the parliamentary majority and local governments were instructed to sabotage the forming of polling commissions at all levels.

So obsolete and controversial is the specialized law that it allows for multiple and often diverging interpretations. The Constitutional Court could have provided an official interpretation had it been operational. As matters stand, it is hard to say when it will be manned. It is even harder to forecast when a new referendum law will be in place.

According to Viktor Medvedchuk, notorious anti-NATO activist, everything is clear as day. Referring to the effective law in an interview to the INTER TV Channel, he argued: “The Central Election Commission should pass the collected signatures over to the Presidential Office, and Yushchenko is obligated to call a referendum. We sought a first-instance court ruling on what the president should do under the circumstances. A member of a steering group in Odessa filed a relevant application, and the court determined that Yushchenko, once he receives the documents from the CEC, should immediately issue a decree on holding a national referendum.”

We would dare to disagree with the distinguished lawyer: according to the constitution, it is the president, indeed, who calls the referendum initiated by Ukrainian citizens; and the referendum law states that “the referendum date is set at least three months after the decision to hold a referendum is made, but not later than four months after it. However, neither the constitution, nor the law on referendum stipulates when exactly the president is required to make and announce the pertinent decision and what his liability is for failing to make it.

Of course, the head of state should not ignore the will of the people. Yet Viktor Yushchenko, known for his deliberation in decision making, would hardly be in a hurry to sign such a decree, especially given that the delay will look justified and almost legitimate.

As for the court ruling, we could not get a hold of it, so we will have to take Medvedchuk’s statement on trust. In this case, the court exceeded its commission. Article 19 of the constitution envisions that no one can be forced to do anything that is not stipulated by law. Ukrainian legislation does not stipulate any specific timeframes for decision making on a referendum. Yet the first-instance court (if Medvedchuk’s account of the events is correct) demanded that the president do it immediately, which decision can be appealed.

Moreover, one should wait until the Central Election Committee verifies the signatures. Davydovych is right: the “margin of safety” is large. Some time ago, a legislative proposal was discussed to toughen the signature verification procedure and allow the CEC to remove the sought referendum from the agenda if massive irregularities were observed in collecting names at least in one region of the country. This measure, severe as it might seem, would foil falsifiers’ plans and prevent abuse of citizens’ voting rights.

What are Legal Implications of the Referendum?

On the one hand, there is a provision of the obsolete but still effective law on referendum, according to which decisions made through referendum do not require any further approval or authorization by public authorities. More than that, the Constitutional Court ruled last year that “the people’s will expressed in direct democracy forms defined in the constitution and laws of Ukraine shall be legally binding”. Finally, the constitution states that:

• the people are the only source of power and have the right to exercise this power in direct forms;

• no one can usurp the power;

• referendum is a form in which the people express their will.

On the other hand, there is a precedent: in 2000, the people expressed their will in a referendum, but parliament ignored it. Some may object that the constitution provided for a special procedure in that case, which could not be circumvented. Yet this time the law makes no provision whatsoever on implementation procedures. And nobody knows how to go about the referendum outcomes, except for the Constitutional Court, perhaps, which is non-operable at the moment.

Suppose the people support the NATO accession in the referendum. Does it mean that Ukraine will necessarily join the Alliance? No, it does not. Suppose the people say “No” to NATO. Does in mean Ukraine will never join it? In legal terms, it does not, because:

• the NATO accession procedure does not require a referendum;

• in five years (according to the law), another referendum can be conducted on the same issue.

Ukraine will not acquire NATO membership earlier than in five years from now, anyway.

The same applies to the Common Economic Space, which could disintegrate in five years from now (or even sooner). If the referendum is held and the people say “Yes” to CES and “No” to NATO (which is a possibility) it will only have moral implications. It will be yet another slap in the face of Yushchenko’s orange team, like their thwarted effort to reverse the political reform.

Who Needs the Referendum?

One can imagine how amazed our partners in Brussels, Washington, Paris, Berlin, Warsaw, and other NATO capitals are with all this referendum fuss. What referendum? Has NATO officially invited Ukraine to join it? Has Ukraine submitted its official application for membership? It does not make any more sense than asking Ukrainians if they would want their country to become part of Mongolia or join MERCOSUR…

Yet even if and when Kyiv sends its official application to Brussels and NATO responds by inviting Ukraine to become a member, the referendum will not be mandatory. The NATO accession procedures do not require it. Our national legislation makes no such provisions, either. However, there should be no doubt that the Alliance will never invite Ukraine to join it unless the majority of Ukrainians back up the country’s membership. It is exactly what happened to Slovakia, which missed the first round of expansion.

The public sentiment can effectively be gauged by opinion polls and sociological surveys. Referendum is too expensive an exercise. And as Medvedchuk would have put it, “this money will never be spent on salaries, pensions, and other social programs, on health and education.” NATO opponents claim that they are concerned about public finance. Why don’t they ask themselves if the country can afford holding the parliamentary elections (which cost the budget much more than originally estimated) and a referendum within a span of six months? What about the funding for the latter? The 2006 state budget does not allow for these expenditures.

Most of the new Alliance members did not conduct referenda, making do with parliamentary resolutions. Decision makers in those countries understood very well that a referendum is needed only when the popular support rate fluctuates around 50 percent. If opinion polls show a much higher or, conversely, a much lower support rate, referendum is pointless.

Hence the question: why do Medvedchuk & Co. insist on holding the referendum right now? No such large-scale and costly endeavor is required to point out that little more than 20 percent of Ukrainians are currently in favor of Ukraine’s membership in NATO. Is it being promoted in order to take advantage of the people’s low awareness and deprive them of an opportunity to make an informed choice about their future?

We would like to reiterate: even if the referendum takes place this year and the majority of our countrymen and countrywomen reject the idea of Ukraine’s membership in the Alliance, it will not do any irreparable harm to our Euro-Atlantic integration. Of course, the negative vote will enhance the position of skeptics from Berlin and Paris at the negotiations with Ukraine and could postpone our accession to the Alliance, but it will hardly close the NATO door to Ukraine for good. The public can and should be educated, and the public sentiment is subject to change.

What has the incumbent administration done over the last year to sensitize Ukrainians to the benefits of NATO membership? Not much. Our top officials often aired their grievances at Ukrainians’ poor understanding of NATO’s nature, principles, and approaches. Did they expect their fellow citizens to rush to libraries in search of information about NATO and then to discuss it with colleagues at work and with family members at leisure? Well, they will be disappointed to find out that their expectations have not been met. Unfortunately, those who take practical steps to “enlighten” Ukrainians about NATO either distort the picture deliberately (juggling with facts or telling outright lies) or demonstrate total ignorance of basic things concerning the Alliance and the history of Ukraine’s relations with it.

Masters of Subjective Improvisation

A masterpiece of such improvisation was broadcast by the INTER TV Channel last week (can also be found on the site www.nato-net.info <http://www.nato-net.info>). It was an interview given by ex- Kuchma Presidential Administration Head Viktor Medvedchuk Serhiy Vasilyev, better known to the general public as the Information Department Chief in the Presidential Office headed by Medvedchuk and an expert in compiling and distributing “temniks.”

Apparently, Medvedchuk could not stay indifferent to the latest attempts by some media, including ZN (see, for example, our publication “NATO is Not to Blame” in # 7 dated 25.02.06), to remind Ukrainians of his commendable contribution to the country’s Euro-Atlantic integration. Viktor Medvedchuk dismissed as nonsense all allegations about his involvement in advancing Ukraine toward NATO and unfairly belittled his former chief Leonid Kuchma’s services in this field. He maintained that the Kuchma administration had not made a single step toward NATO accession.

In fact, his signature can be found in a series of pro-NATO documents, but we would venture a guess that he signed them half-heartedly, taking no pains to study their contents. This could be the reason why he gave Leonid Kuchma, instead of his predecessor Leonid Kravchuk, the credit for Ukraine’s joining the “Partnership for Peace” program, tagged this program as an organization (although any greenhorn lawyer could tell the difference between the two notions), and said it had 24 member states, whereas today the PPP participants are 26 NATO countries and 20 partner states, i.e. 46 nations all in all.

In his interview, Medvedchuk failed to give Leonid Kuchma his due: the former president swallowed his pride and went uninvited to the NATO summit in Prague where he was seated far from the US and UK leaders (because of the French alphabet singularly used on the occasion) - all with the purpose of having the Ukraine-NATO Action Plan eventually signed and later developed into the Membership Action Plan. But his former administration head has the insolence of stating that no practical steps were made toward NATO. What about the enactment by the presidential decree of the NSDC Resolution dated 23 May 2002, which Leonid Kuchma praised as epoch-making since it defined Ukraine’s membership in NATO as the ultimate goal of its Euro-Atlantic integration? Wasn’t that a practical step forward? What about Kyiv’s insistent attempts to persuade Brussels it was high time for the country to start implementing the Membership Action Plan? What about the beginning of defense reform and active participation in the Planning and Review Process launched in 1995? Presumably, Medvedchuk has no idea about those steps.

And yet he claims to know that “the document signed by the country’s leaders, including Yushchenko, and sent to the NATO headquarters commits Ukraine to allocate UAH 92 billion in 2006-2011 to transferring its armed forces to NATO standards.” In actual fact, though, the “Initial Discussion Paper within the Ukraine-NATO Intensified Dialogue about Ukraine’s Prospective Membership and Required Reforms” (which Medvedchuk must have meant) lists a number of financial and economic indicators and the Ukrainian armed forces’ reform targets for 2015. All estimated costs cited in the document add up to UAH 92 billion, indeed.

However, this money is not to be spent on “NATO and introducing NATO military standards,” as Medvedchuk argues. These are budget outlays for the State Program of Developing the Ukrainian Armed Forces in 2006-2011. They will cover the defense reform, force maintenance and training, modernization of (Ukrainian!) arms, military equipment, technology, and infrastructure. In other words, it is the country’s military budget for the next six years. Why the renowned lawyer was so impressed with the cited amount is a mystery: he should remember that back in 2000, when he was the first deputy speaker, the Supreme Rada passed the law “On National Defense” stipulating that the annual defense allocations should be at least three percent of the estimated GDP. May we remind our readers that the respective NATO requirement to member-states is at least two percent of GDP?

Equally surprising are Medvedchuk’s scary predictions of the imminent collapse of Ukrainian aircraft building, “should Ukraine be pulled into NATO,” because “neither the EU nor NATO wants our airplanes.” Could Medvedchuk be uninformed that the Alliance and its individual member-states use the services of the Aviation Research-and-Design Corporation named after Antonov and Ukrainian Air Transportation Company on a regular basis, and that over the last few years our carriers have made over 800 flights on NATO assignments? Dmytro Kiva, acting chief designer of the ARDC named after Antonov, confirmed in a recent interview to ZN that “NATO contracts account for a half of our overall shipping operations.” Do you know who blocked the ratification of the Ukrainian-NATO Memorandum of Understanding on Strategic Lift in November 2005? The SDPU(o) faction did not give a single affirmative vote!

Medvedchuk’s reference to our contingent in Iraq was disgustingly cynical. “We oppose the turning of Ukraine into a bridgehead of explicit terrorist threat,” he stated upon enumerating “acts of violence in England, Spain, and other countries supporting the American aggression.” He should know that NATO is not involved in Iraq. The whole world watched the heated debate inside the Alliance about the operations of the US-led coalition in that country and discussed France and Germany’s firm stance over the matter. And wasn’t it President Kuchma who supported “the American aggression,” joined the coalition, and sent Ukrainian force to Iraq? Didn’t Viktor Medvedchuk head President Kuchma’s office at the time? Who pledged to withdraw Ukrainian troops from Iraq and kept the promise? President Yushchenko.

Viktor Medvedchuk’s interview abounds in similar misrepresentations and blatant lies. Yet, strange as it might seem, it could do some good for Ukrainian society by exposing the “sincerity,” “honesty,” and “decency” of most eloquent opponents to Ukraine’s membership in NATO, and by inspiring those whose duty and calling is to debunk myths, rebut lies, and challenge misconceptions about NATO that have pervaded Ukrainians’ minds for so long.