On May 27, the draft Law “On the Election of Members of Parliament of Ukraine” was posted on the website of the Ministry of Justice . It was prepared having regard to the results of meetings of the Working Group on Improvement of Election Legislation established in November of last year by the President of Ukraine. The revised draft law was based on the “technical” draft of the same Law which had been made public by the Justice Ministry in April 2011. The ministry says that the updated document takes account of many of the proposals voiced during the meetings with representatives of political parties, nongovernmental and international organizations. In reality, however, there are just a few provisions of this sort.
Positive Changes Compared to the “Technical” Draft of the New Election Law
The updated draft law really does contain a number of positive changes. They reflect to a considerable extent proposals voiced by participants in the meetings of the Working Group on Improvement of Election Legislation. These changes include the more precise definition of the procedure for registering observers from nongovernmental organizations (NGOs) and the affording of the opportunity for NGO observers to be present at the meetings of the CEC. In particular, according to the revised draft law, the decision to allow an NGO to have observers lies with the Central Election Commission (rather than with the district election commissions, as was provided by the “technical” version of the draft). Furthermore, eligibility requirements regarding nongovernmental organizations are specified: the right to have observers will be granted only to those NGOs whose statutory activities embrace issues related to the election process and to the observation thereof. Just like the “technical” draft law, the revised draft of the Law “On the Election of Members of Parliament of Ukraine” provides theses official observers with the same rights as the ones enjoyed by the official observers of parties or of MP candidates. All these innovations promote effective public observation of the election campaign. Still, it should be noted that the updated document affords the right to observe the election to organizations registered not later than 60 days prior to the voting day. This may result in the emergence, shortly before the election, of lots of NGOs, which will discredit public observation and will be used by parties or individual candidates as a political technology instrument.
The “technical” draft law essentially restricted citizens’ access to socially significant information about the election process subjects, since it did not provide for the necessity to make public the candidates’ bios, their income statements, the election programs of the candidates and the parties, or the financial reports on the receipt and use of the resources of the election funds. Due to the efforts of the NGO representatives taking part in the meetings of the Working Group, a part of these defects were eliminated: the information being provided by the parties and the candidates at the point of their registration is to be considered as open-access information; and parties’ election programs, financial reports by parties and candidates, and candidates’ income statements are to be posted on the CEC website. However, one of the defects of the previous draft law version has been preserved: the majoritarian candidates are not required to have any election programs of their own. Accordingly, they will be free to promise anything to the voters, while there will be no real opportunity to verify the keeping of these promises.
The list of grounds for canceling MP candidates’ registration has been considerably narrowed; on the whole, this is in line with the international democratic election standards.
One of the pluses of the updated draft law consists in resuming the use of the stamp “Withdrawn” for amending ballot papers (the “technical” draft law did not provide for the use thereof). In line with the Working Group members’ proposals, it is specified that these stamps are to be kept at the district election commissions, not at the precinct ones. This will prevent their unlawful use. Other favorable points of the draft law include the more precise definition of the vote-counting procedure at the precincts and the expansion of the requirements regarding the vote-counting protocol – in it, the number of ballot papers in each ballot box is to be indicated. Pursuant to OSCE recommendations, the “against all” option was removed from the text of the ballot paper; this will make the voters more responsible for their choice and will also reduce the number of votes received by the campaign winning parties due to “reassigned” ballot papers in which voters did not support any particular party of candidate.
The authors of the draft law at last provided for mandatory training of the leaders of the district election commissions. This innovation will promote better performance of the commissions in question. However, it might also lead to negative consequences for the opposition parties – the procedure for such “election training” is to be determined by the CEC rather than directly by the law. As a result, the leadership of the election commissions may come to be dominated by representatives of certain parties only who successfully complete their training. Moreover, the precinct commission leaders – the persons experiencing the highest workload – will not be required to receive any training.
To ensure that voters are provided with objective information, a requirement is established that in the event of publication of the results of an opinion survey by mass media, information on the originator of the survey must be indicated. The revised draft law also takes account of the pan-European approaches to regulating issues related to “election sociology” – the deadline for the publication of the opinion poll results has been shortened from 15 to 10 days prior to the voting day.
The “technical” draft law text provided for the resolution of all election disputes exclusively in court, thus weakening opportunities for defending the violated electoral rights of citizens, parties, candidates, etc. Indeed, during the brief election process period the courts would by no means always be able to provide for prompt and – above all – high-quality resolution of election disputes. In the revised draft law, this defect was eliminated: election law violations can be appealed not only to courts, but to election commissions as well. However, blameworthy is the fact that the deadline for submitting the relevant complaints has been reduced from 5 to 2 days.
The Main Defects of the Draft Law
At the same time, the revised draft of the Law “On the Election of Members of Parliament of Ukraine” contains a number of serious conceptual defects and provisions which fail to fully take into account the democratic standards of fair and transparent elections. The role of public consultations during the preparation of the draft law was greatly narrowed, because the most important problems of the election legislation (in particular election system related issues) were resolved by the president in a single-handed manner, without being discussed with the public or with the parties’ representatives. Thus, one can hardly say that the revised draft law version is the product of the Working Group’s activities and of public consultations.
In the first place, attention should be focused here on the restoration of the mixed proportional-majoritarian electoral system. The current authorities attribute the return to the electoral system which was already used back in 1998 and 2002 to the wish to strengthen the relationship between the MPs and the voters, as that connection was considerably weakened under the proportional electoral system. However, in the context of relationship between the elected representatives and the public, it would be more logical and effective to introduce a proportional system with preferred voting (so-called “proportional system with open lists”). More than that, such an election mechanism would facilitate further development of the party system in Ukraine, which was in fact the main objective for introducing proportional election back in 2004. Restoration of the old electoral model automatically brings back all of its defects, the most essential ones being political corruption and stronger influence of the administrative resource on the final election outcome.
Nor can one approve of the raising of the entrance barrier to the Parliament of Ukraine (from 3 % to 5 %) or of the ban on participation of electoral blocs in the election. Both of these initiatives are exclusively in favor of the current authorities and the dominant political force. Moreover, the higher entrance barrier to the parliament will promote neither a renewal of the political elite nor a representation of the interests of small groups of voters. As to the ban on electoral blocs it should logically be accompanied by amendments to the Law “On Political Parties in Ukraine” which would provide for unification of parties. Also of questionable merit is the reduction of the election campaign period from 120 to 90 days – this will considerably complicate the organization and holding of the election.
The proposed version of the parliamentary election law breaches the principle of equal franchise: voters residing outside the territory of Ukraine are to be included in the voter lists of one single-mandate election district, although their number outside Ukraine is several times higher than the number of voters even in the largest district established within the territory of the country. Therefore, the votes of Ukrainians exercising their voting right beyond the borders of the country will actually have less weight than the votes of citizens casting ballots in their motherland.
There are also defects in the context of the maximum number of voters in a precinct. Presently in Ukraine, it is planned to keep it at 2,750 voters; this will neither facilitate proper organization of the voting nor comply with the recommendations of the Venice Commission or of the international election observation missions, which recommended decreasing the number of voters in a precinct to 1,500. The revised draft law provides for introducing a division of the election precincts into regular and temporary ones, while failing to specify the procedure for establishing and disestablishing regular precincts, for revising their limits, etc.
A serious problem is the violation of the principle of equality of parties in the formation of the election commissions, since in this aspect, preferences are provided for parliamentary factions registered at the beginning of the election process. As a consequence, the Party of the Regions and the Communist Party will be guaranteed (as parties having independent factions in the Parliament of Ukraine) representation in each district and precinct commission. At the same time, for example, the faction “Our Ukraine – People’s Self-Defense” (made up by 9 parties) will only have one representative in an election commission, which automatically implies discrimination against the political forces represented in the faction, compared to the “regionals” or the communists.
The cancellation of the possibility for the parties to withdraw their representatives from the election commissions also creates problems for political forces participating in the election, since under such conditions competitors can simply “buy over” some or other member of an election commission.
The draft provides for the possibility of amending voter lists on the voting day; this is at odds with the international standards (in particular with the Venice Commission’s Code of Good Practice in Electoral Matters) and creates serious opportunities for abuse.
Although the draft Law “On the Election of Members of Parliament” provides for mandatory publication of the reports on the receipt and use of the resources of the election funds, no requirements regarding the design and content of such reports are established. Besides, there is still inconsistency regarding election campaign funding. Thus, it is formally forbidden to form election funds on the basis of contributions from legal entities, but the Law of Ukraine “On Political Parties in Ukraine” provides that parties can be financed by legal entities. Accordingly, political forces will be able to transfer money from legal entities to their election funds claiming that these funds are self-contributions – and the amounts thereof will not be subject to any limitations (contrary to contributions from natural persons).
The grounds for refusing to register candidates are unclearly defined by the draft law, which creates an environment conducive to all sorts of abuse, in particular non-admission of certain candidates to participation in the election. For example a candidate can be refused registration if he/she violates the requirements of the legislation during the nomination, or if documents submitted for his/her registration are “improperly” prepared.
The draft law section relating to regulation of the election campaign preserves a number of undemocratic restrictions which have been repeatedly pointed out by international election observation missions. Among them is the prohibition on expressing comments on or assessments of campaign programs within 20 minutes before and after their presentation on TV or radio, as well as the prohibition of campaigning in mass media partially owned by foreigners. Preserving quotas for political advertising will not be conducive to ensuring candidates’ equality, while canceling election campaign funding from the State Budget will disadvantage some parties (especially those lacking sufficient financial resources) compared to other electoral process subjects.
Also worthy of mention is the absence of appropriate mechanisms for informing voters: at the precincts, only lists of candidates (respectively, parties in the nationwide district and “majoritarians” in single-mandate districts) will be posted, without their election programs, photographs, etc. All of this will make it harder to make an informed choice on election day.
As in the past, there will be the threat of fraud related to “voting at home” – the designers of the draft law failed to take into account the recommendations voiced by some members of the Working Group that the law should make it mandatory for voters to submit documents confirming their temporary inability to move without outside assistance.
The revised draft law does not provide for amendments to the Code of Administrative Proceedings (CAP) as regards the procedure for appealing election-related decisions, actions, or inaction to a court. In essence, this implies conservation of the defects resulting from the amendments introduced into the CAP before the 2010 presidential election, in particular the impossibility to appeal certain court decisions to an appellate court. Nor is there a provision requiring that the Criminal Code be amended, even though most of its articles concerning liability for violation of citizens’ electoral rights were criticized by domestic experts, the Venice Commission, and the OSCE.
It is planned that the updated draft Law “On the Election of Members of Parliament” will be presented to the Venice Commission and the International Foundation for Electoral Systems (IFES) and be brought up for wide public discussion. Although such a step is in itself praiseworthy, the process of preparation and adoption of the new election law can be assessed as democratic only if the draft law is amended in line with the results of the relevant public discussion. Moreover, the authorities must clearly and convincingly explain the reasons and motives for failing to take account of certain proposals (including those related to the conceptual provisions of the draft law, such as electoral system type, election barrier level, etc), as is common in many European countries. Without this, public consultations regarding the draft law will turn into an imitation of democratic procedure, which can hardly provide for the legitimacy of the adopted law or evoke respect for it on the part of political actors and society in general.
Denys Kovryzhenko,
Director for Legal programs, Agency for Legislative Initiatives.
Prepared on behalf of the Civic Consortium on Election initiatives.
