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23 February, 2015  ▪  Volodymyr Vasylenko

A Key to Transforming Ukraine

Hopes for stamping out corruption, reforming law enforcement bodies and transforming the country in accordance with the European values are futile, unless major flaws in the Ukrainian electoral law are eradicated

Electoral law is the key legal foundation for representative democracy. Its quality defines the quality of the nationwide representative body and the highest legislative body of the country. The quality of the parliament in its turn defines the quality of the executive and judicial branches of power, as their top officials are elected and higher bodies are formed by the Verkhovna Rada of Ukraine. All hopes for creating efficient constitutional order, stamping out corruption, reforming the Prosecutor's Office, the judicial and law-enforcement systems, transforming the country in accordance with the European values and democratic principles are futile, unless major flaws in the Ukrainian electoral law are eradicated.

The mixed proportional-majoritarian electoral system that exists in Ukraine was supposedly designed with the European and the world experience in mind. In reality, however, Ukraine has an established general freedom of elections, which are regularly held in due terms, as prescribed by the laws and the Constitution, on the one hand, while a citizen is practically deprived of the basic freedom of choice on the other.

Under the current Ukrainian law, 225 out of 450 people's deputies (parliament members) are elected in the general multi-member constituency with closed party lists defined not by the voters, but by party leadership. The voters cast their ballots for the entire list, rather than certain candidates. Therefore half the parliament is essentially formed not by the voter, but by party leaders, who are accountable to their backers. The other 225 MPs are elected in single-member constituencies under the first-past-the-post (majoritarian) system. The flawed, yet legally regulated order of campaigning in single-member constituencies coupled with Ukrainian political reality turns majoritarian election into a cynical farce, which is often further exacerbated by the subsequent vote rigging and yet again leaves the citizens without true freedom of choice.

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Thus the existing situation around parliamentary elections goes against the very principle of representative democracy and makes it impossible to form the parliamentary composition capable of maintaining any kind of organic connection with the voters, and having the political will to represent and protect public interests, rather than serve the oligarch clans and obey the orders of party leaders wholly dependent on their wealthy patrons. The parliament formed in violation of the basic principles like the rule of law and elementary democratic norms cannot be operational and efficient by definition.

The Program Manifesto of the Maidan passed at the popular assembly on December 29, 2013 defined as a priority short-term objective for the democratic forces to "conduct early parliamentary elections under the proportional representation system with open lists".

Unfortunately, in spite of the collapse of the Yanukovych regime and the considerable loss of influence of his Party of Regions faction, the old composition of the Verkhovna Rada never managed to adopt new electoral legislation. Early parliamentary elections of October 2014 took place in accordance with the existing law that several years earlier had been modified to suit the needs of Viktor Yanukovych's puppet government. As a result the representatives of the Party of Regions and those that openly or candidly supported it were once again elected to the new parliamentary convocation, albeit in much smaller numbers. They made and will continue to make attempts to block the adoption of initiatives directed at reforming the country, satisfying the urgent needs of the public, restoring Ukraine's defence capability, repelling the Russian aggression, protecting the territorial integrity of Ukraine and strengthening its statehood. The results of their voting for important political, economic, social, defence and other issues ascertains to this.

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The Coalition Agreement rightly emphasizes on the need to strengthen the liability for violating the electoral law. However, cases are commonplace when gross violations of the election process were brought about by the flaws purposefully incorporated into the legislation by the previous authorities. For instance, the norms relating to composition of electoral commissions, which brought about the dominance of members delegated by "technical" parties (set up to steal the votes of a rival party but with no chance of actually getting into parliament) entirely dependent on the ruling authorities and the oligarchs. The flaws of the current Ukrainian law are well known to the domestic experts, NGOs as well as the Venice Commission, which more than once pointed them out and provided recommendations on ways to rectify the situation.With the above in mind it is urgent for Ukraine to adopt new electoral legislation, preferably as a single unified Electoral Code, as recommended by the Venice Commission. The Coalition Agreement signed by the leaders of parliamentary factions, which formed the majority, provides that in the first quarter of 2015 the coalition is to ensure "the move from the mixed (proportional-majoritiarian) system of elections to the Verkhovna Rada of Ukraine to one that provides voters the possibility to vote for particular candidates in multi-member constituencies (proportional representation system with open lists)", as well as to ensure legally prescribed liability of the participants of the election process for violating the law, and increased responsibility of political parties for failure to meet the demands relating to transparency of their finances.

This is why at the foundation of the new electoral law must be the initial draft of Electoral Code developed by independent experts and representatives of NGOs in accordance with the recommendations of the Venice Commission and taking into account existing Ukrainian political reality. At the same time the Ukrainian authorities and parliamentary factions of the leading political parties must refrain from attempts to shape the electoral legislation to fit their needs.

One can hope that under such conditions, Ukraine will manage to create a high-quality electoral law designed to ensure the true freedom of citizen's electoral choice, and that the formation of the government and the transformation of the country will happen in accordance with the outcome of said electoral choice and the interests of the society.

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Granted, shortly after the new electoral law is adopted there has to be a new early parliamentary campaign. New quality of the legislation must ensure new quality of the authorities. This is a key condition for radical transformation of the country in-line with the European values, democratic principles and Ukrainian tradition
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