Referendum as a platform for social discussion

The complexity, intricacies and contradictions of norms, the selectivity of their application, coupled with deep social inequality, increase legal nihilism in the public consciousness. However, society must realize that such an approach to legal thinking removes Ukraine from the western vector of development and maintains the country in orbit of a limited world outlook. It is not enough to speak of a commitment to Western values ​​- peace, freedom and justice – it is necessary to take direct part in the struggle for them, thus giving them meaning and their own specific weight.

 Therefore, the statements of the new governance of the country about the plans for an all-Ukrainian referendum, which will decide the fate of further relations with Russia, are particularly dangerous. We must pay particular attention to the big statements about the need for a referendum. And first and foremost, we must focus on what legal mechanisms they will be implemented. Indeed, it depends on whether they can actually become a supporter of a law-governed state or will be the main threat to our democracy.

Law / NotLaw 

National law is an important element of the identity of any society. It is society’s own product, which builds strong relationships between members of society and government. Respect for the law and the constant struggle for it are not a consequence, but the cause of Western democracies. In the absence of such a struggle, the law is replaced by “NotLaw“, a will that demonstrates arbitrariness and asserts totalitarianism. But at a time when “NotLaw,” oppresses the public spirit of freedom, trying to destroy universal human rights, it simultaneously lays the foundation of its variability.

One way or another, prolonged inhibition of human freedom, like the effect of a compressed spring, can lead to the sudden release of a large amount of accumulated energy, which can be both constructive and destructive. The consequences of such an effect on the scale of society can equally contribute to the establishment of the true law or its chimerical reflection – “NotLaw”.

So, with the acquisition of Independence, Ukraine proclaimed one of countries goals to build a market economy, which is impossible without the rule of law, freedom of business or the inviolability of private property. However, now this constructive desire remains only at the formal level. For example, what kind of ownership can be, if the guarantees of its protection depend not on legal equality, but on the presence or absence of communication with a certain feudal lord or other similar force? Probably, as noted in his published article “For the Defense of the Law” (1902), the Ukrainian lawyer Bohdan Kistiakivsky (1868-1920), it is not enough simply to borrow Western legal ideas, it is necessary to be fully covered of them at some point in life. As the author pointed out, the idea of ​​law arises during the creative work of the consciousness of the individual, and the consciousness of society as a whole. This work, wrote B. Kistiakivsky, should consist of assimilation and reception of ideological elements of law with national customs and traditions, which would make them acceptable to society.

This means that Ukrainian society can not simply take and apply a “copy / paste” to European legal principles that have already been developed in detail and embodied in western democracies. Their introduction should be accompanied by an active social dialogue, during which new legal norms will be understood and interpreted in a way that is understandable to society. For example, the reform of Ukraine’s decentralization would hardly have become one of the most successful if it did not find strong support in our legal traditions, and local communities did not deliberately perceive the expansion of their freedoms. In this example, we can observe how historical experience, which dates back to the Middle Ages, is a favorable ground for the organization and implementation of a very complicated self-government reform throughout Ukraine.

Tradition of the Veche

Ukrainian legal culture has a far deeper idea, which can serve as the ideal connecting element of a society and law. It is based on the principles of national rule and national sovereignty. These ancient principles can be observed at the heart of the legal organization of Kyivan Rus, the supreme authority in which was not always and fully concentrated in the hands of one person – on many issues, it belonged to the Veche (People’s Assembly). Veche as an instrument of direct participation of the people in the decision-making process was the supreme authority that directed the state and controlled a knyaz. Prof. Rostyslav Lashchenko (1878-1929), draws attention to the fact that every member of the veche society was considered not only as a full-fledged subject of law, but also as a bearer of the ideas of popular sovereignty.

The tradition of the veche in the consciousness of Ukrainian society has survived a large number of eras. The modern history of Ukraine also convinces – the idea of ​​the veche is alive today. During the first (October 2, 1990), the second (November 22, 2004) and the third (November 21, 2013) of the Maidan, the society united around a single idea of ​​the right to participate in the decision-making process, and at one time reached the goal. Ukrainians, based on their centuries-old tradition of veche, are forced to go out on the streets – to demonstrate their sovereignty and to adjust their development. But, unfortunately, this legal feeling that encompassed Ukrainian society during the revolutions did not turn out to be an impulsive impetus in a disciplined and constructive legal conviction.

It is amazing, however, that for 28 years of independence we have not succeeded in creating laws about peaceful gatherings and referendums. Despite the fact that actually these constitutional rights must embody the function of the veche, the political elite sabotage their legislative settlement. Thus, the Law of Ukraine “On All-Ukrainian and Local Referendums” of July 3, 1991 was one of the first laws of independent Ukraine. According to its norms, the first all-Ukrainian referendum was held, as well as more than two hundred local referendums.

During Yanukovych’s time, in 2012 the Law on “All-Ukrainian Referendum” was adopted, and the 1991 Law, a number of provisions of which did not comply with the Constitution, was no longer in force. However, the new law was also subjected to sharp criticism from the Venice Commission due to the fact that it contained an unconstitutional norm on the possibility of referendum on the issue of amending the Constitution. In particular, in this regard, in 2018, it was “canceled” by the Constitutional Court of Ukraine. The same situation today – we have a legal vacuum. With regard to peaceful gatherings, the case is not much better. The constitutional right to peaceful assembly in Ukraine has never been regulated by any special legislation, but to date there is a decision of the Constitutional Court of Ukraine dated September 8, 2016, which points to our right to use the norm of Article 39 of the Constitution as a norm of direct action. And although in the absence of special legislation, Ukrainians actually have the opportunity to exercise their right to a peaceful assembly; unfortunately, one can not say about the exercise of the right to a referendum. This is despite the fact that the Constitution contains provisions that define issues that are resolved solely by referendum.

Referendum practice

The use of a referendum as an instrument of the will of the people is a practice that has led to the formation of many ambiguous attitudes. On the one hand, it is an effective tool for direct democracy, on the other hand, it can destabilize society in a crisis or transitional period. The latest referendums in Western Europe, which have become a headache for the UK and, for example, Spain, can be seen in favor of this statement. In the negative experience of referendums in these countries, demagogues were given the opportunity to distort reality and appeal to emotions, as well as simplify difficult questions for the simple choice of “staying or going out” (the output of the UK from the EU and the unification of Catalonia from Spain), forcing people to immediately join one or the other side in a polarized debate.

However, the British do not refuse referendums, but on the contrary – they consider them as “more democratic“ than a representative way to make decisions, which, however, should not be considered separately. This experience reminded the Europeans about a valuable ancient lesson – a referendum without rules and certain standards would only be an invitation to the expression of collective anger that can be used by populists. In particular, one can recall the All-Ukrainian referendum of 2000, which then-President Leonid Kuchma used as a lever in the political struggle. The issue of reducing the number of deputies and the abolition of parliamentary immunity received great support (more than 90% of votes “for”) due to the traditionally low (poll of Kyiv International Institute of Sociology) support of the parliament.

As thousands of years ago, the modern crisis and popularity of demagogues takes root in the problem of social unawareness and legal ignorance. Although European referendum institutions work and enjoy great authority among the population, their further effectiveness is questionable, precisely because of the problems with ensuring a proper referendum information campaign that can explain to the public the consequences of their choice.

For example, today, the British say that during the referendum on the UK’s exit from the EU in 2016, the quality of the discussion and information campaign was inappropriate, and the information needed to make a balanced decision was incomplete and had limited access. As a result, after 52% of the population has chosen to “exit”, for nearly three years civil society is in an active debate on “Does anyone know exactly how to deal with Brexit?”. In May 2019, the British Prime Minister was forced to resign due to the fact that she failed to conduct different parliamentary options for Brexit three times. It is possible that as a result of this active discussion a second referendum will be held, during which more informed British will have the opportunity to correct the situation. In order to find the basis for such expectations, it is not even necessary to leave the United Kingdom. After the Scottish Independence Referendum Information Campaign in 2014, there was a marked increase in public interest in politics and political doctrines and, subsequently,a significant increase in the appearance of Scots in general elections, which in the last decades were average.

West

So today, Europeans are focused on working out such rules that could protect the referendums from the abuse of politicians and strengthen their democracies.

First, in many European countries, referendum results are not mandatory. Among countries practicing so-called consultative referenda are Belgium, Spain, Finland, Germany, France, Sweden and others. The only exception is post-legislative referendums, when a nationwide discussion raises a question that has already passed all the necessary consolidation processes in the legislative body and for the coming into force only the approval of the referendum is needed. We have our own example of such a referendum – the All-Ukrainian referendum of 1991, which legitimized the Declaration of Independence of Ukraine. In this case, it is difficult for politicians to ignore the results of the referendum, and also to misuse the interpretation of the results. In addition, holding a post-legislative referendum means that the proposed change to the law is clearly formulated and has the support of the parliament, and therefore can not be considered as an alternative to the process of representative democracy.  

Secondly, society should be given so much time, qualitative information and opportunities to engage in genuine discussions with experts and politicians so that the latter can not manipulate the will of the public. The Venice Commission emphasizes that publication in an official newspaper can not be considered a sufficient measure for informing the public. Everyone should have access to the full text that is submitted for approval, together with an explanatory report, which should contain all the points of view. This report should be verified by an independent body, whose authority is still subject to discussion. In particular, they should include verification of allegations of abusive agitation and dissemination of false information that is false or misleading. In the event of a violation, such an “arbiter of truth” should provide explanations, impose fines, and also oblige offenders to withdraw false allegations, to refute them in the manner in which they were disseminated.

Particular attention deserves the experience of the state of Oregon (USA), which demonstrates incredible effectiveness in the conduct of information campaigns. The non-governmental organization “Healthy Democracy” from 2010 attracts small groups of citizens (18-20 people) to a qualitative and detailed discussion, which lasts 3-5 days. During such events, citizens participate in an intensive discussion, meet with supporters and opponents of this or that position, as well as independent experts. As a result of the discussion a brochure is published, which outlines key findings and arguments for / against certain choices. After the majority of participants agree with the contents of this brochure, it is annexed to the official voter’s bulletin. This allows citizens to understand what people like them think about the issues that are being put to the referendum. In general, according to the Independent Commission on Referendums, the study of the results of such information campaigns suggests that around a quarter of voters studied such pamphlets, and about three-fifth of them considered them useful and meaningful. Experts believe that the above practice may be opposed to ordinary campaigns, and may also be a panacea for “white noise” information, which prevents citizens from understanding the substance of questions and restricting their access to important information.

For these same reasons, the standards relating to a proper information campaign can not be limited to discussion in separate groups, because in any case, propaganda will penetrate the media. That is why representatives of different points of view should have an equal and balanced coverage of their positions in the state media. For private media, the Venice Commission recommends that you take a professional and objective stance when reporting information on issues that are being discussed. During the debate and discussions, the TV and radio companies should promote an inclusive, balanced and enlightening discussion of proposals put to referendum. Such high requirements for media are due to the fact that they play a central role in informing the public within the campaigns. For example, in the UK, the BBC and Channel 4, which during the 2016 referendum conducted a detailed “Fact-Check” statement and arguments of the opponents, made a significant contribution to curbing unfair campaigning.

As can be seen from the foregoing, Western liberal democracies perceive referendums not as a means of direct democracy, but as a guide to the power of a representative system. In addition, information campaigns accompanying referendums can help to increase citizens’ participation in decision-making processes. This, in turn, positively affects the level of legal education of the society and increases the level of trust in the legal system as a whole. The mechanisms of involving citizens in these processes reduce the number of people who are outspoken and frustrated in the legal system, and also create a systemic counteraction to populist tendencies, the danger of which should not be underestimated. Involving the community in public debate and finding compromises can only strengthen democracy by giving the representative system additional control and support from the side of society.

Ukraine

The Venice Commission notes that in countries with tradition of people’s congresses, referendums can significantly strengthen democracy, prevent usurpation of power, and develop constitutional protection of human rights and freedoms. Ukraine can be attributed to such countries from the historical point of view, but without special legislation this way is closed to us.

The law does not exist, and the bill registered in the Verkhovna Rada does not contain any concepts of an advisory and post-legislative referendum. In addition, the provisions of this bill, which regulates the procedure for conducting an information campaign, is limited to one concise remark. Referendums in Ukraine are mentioned only on the eve of the elections and, unfortunately, only in order to strengthen their populist slogans: whether to approve “people’s constitutions”, or to emphasize once again the “importance” of popular opinion.

However, nobody once spoke about the way in which the mechanisms for holding the forthcoming referendum can be seen. No specific point. This is especially disappointing if we take into account the undiscovered potential of people’s trust in the tradition of the veche. Given the effective use of Western experience, the institution of the consultative and post-legislative referendum, as well as information campaigns that would take place in their context, would encourage citizens to engage in creative work that would gradually change the social attitude to our role in decision making and to the right as a whole. Moreover, with the introduction of electronic voting, we could also try to attract passive strata of the population and youth to participate in state-building processes.