Salus populi suprema lex . Marcus Tullius Cicero

Legal Analytics of "Euromaidan": "other" forms of direct democracy
Friday, 13 December 2013 22:57

maidan 5Article 69 of the Constitution of Ukraine envisages that the people have right to elections, referendums and other forms of direct democracy. Thus, this article does not establish an exhaustive list of forms of direct democracy, and indicates that in addition to elections and referendum, there are “other forms of direct democracy”. Although these "other forms of direct democracy" in this article are not listed, but the legislation of Ukraine provides the following forms of direct democracy: peaceful meetings, marches and demonstrations, referendum initiative, appeals, national discussion, etc.

As people are the only source of power in Ukraine, they have right to any form of direct democracy, not prohibited by the Constitution and laws. In general, in addition to elections and referendums, there are many other forms of direct democracy, including, studying of public opinion, plebiscites, public discussions, people's initiatives, petitions, meetings, marches, demonstrations. History has also seen such exceptional forms of direct democracy aspeaceful revolutions, national liberation movements and political strikes, protests, acts of civil disobedience, hunger strikes, picketing, etc. Implementation of these forms of direct democracy is allowed if they are not prohibited by law, and do not lead to prohibited consequences. But the problem is that the evaluation of certain actions during realizing of the forms of direct democracy is made by the authorities, who are not always interested in the people’s right on direct democracy, and can interpret certain actions as a public disorder.When there is provocation of illegal actions during peaceful assemblies by interested side, the situation even worsens. Thus, citizens can be brought to responsibility for certain disobedience during public meeting for example, authorities may even declare a state of emergency which allows significant restriction of citizens' rights, including the prohibition of peaceful assembly and so on.

Ukrainian history knows an example of successful realizing of the right to direct democracy during so-called "Orange Revolution" of 2004, which was peaceful and led to fair elections of the President of Ukraine. Usually revolution as a form of direct democracy is not fixed in the Constitution and laws, but their results are recognized as legitimate when they are not followed by violations of the laws. And the Orange Revolution in Ukraine was such an example.

So, if referendum decisions are obligatory according the law and, their approval are not required, the laws say nothing about the mandatory requirements of peaceful assembly, people only have a right to them, and on practice they have more consultative/advisory/declarative character. While on the other hand, if democracy means decisions taken by majority, if a decision represents the will of the majority (and there is evidence for that), and is expressed while exercising any of the form of direct democracy, not prohibited by law, there is no reason not to consider this decision as legitimate.

So while realizing the right to "other forms of direct democracy," it is important to comply with existing legislation, to maintain peaceful character of these forms, in order to prevent the authorities from non-compliance with the people's will.

Of course, the absence of legal regulation of the issue on "other forms of direct democracy", absence of a law on peaceful assembly in Ukraine leads to the impossibility of realization (or significantly complicates realization) by people of the right to "other forms of direct democracy ", as referred to in Article 69 of the Constitution of Ukraine.