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29 October, 2011  ▪  Andrii Duda

Election Bill That Leaves No Choice

The Party of Regions is trying to amend election legislation to be able to easily forge a parliamentary majority after the next election despite lacking popular support

Bill No. 9265-1, which lays down new rules for the 2012 parliamentary election, has been registered in the Verkhovna Rada. The bill is a product of the Working Group for Improving Election Legislation set up by President Viktor Yanukovych’s decree of November 2, 2010. An analysis shows it will further marginalize the opposition.

HURDLE RACE

Most importantly, the bill throws at the country a mixed election system which was already in place during the 1998 and 2002 election campaigns: 225 MPs were elected from closed party lists, and the other 225 in single-member constituencies. The majority system is very beneficial to the ruling party. For example, all opposition forces received much greater support under the proportional system in 2002 than in single-member constituencies. Conversely, the pro-government For a United Ukraine bloc secured more than twice as many votes under the representational system than under the proportional system (66 and 35, respectively). The switch to the proportional system only for the 2004 election evidently revealed a number of drawbacks, such as the alienation between the MPs and the constituents and the transformation of MPs into a rubber-stamping machine or, on the contrary, turncoats if their faction leaders cannot stop them. However, the representational system is much more vulnerable to the financial and administrative resources of which the ruling party has a greater supply that ever before.

Another novelty is a higher parliamentary threshold – 5% instead of 3%. There is no international standard for thresholds and each country sets its own. Nevertheless, the Venice Commission noted that the change was not sufficiently justified. but its remark was ignored. A 5% threshold would keep the majority of the opposition parties outside the Verkhovna Rada. Parties that would not get into parliament would receive a greater share of votes. These would be divided between the parties that would clear the threshold. The leading parties, i.e., the Party of Regions in our case, would naturally benefit more than others.

The bill prohibits political forces to form blocs for elections. Thus, many small parties would be faced with a choice of either becoming dissolved in stronger parties or disappearing from the political scene altogether.

The voters will no longer be able to vote against all political forces: the "against-all" option will be removed from the ballot sheet. Judging from Russia's practice, this means that people inclined to vote against all would either not participate or would cast their ballots for obvious outsiders. In the first case, the government would have a reserve of unused ballot sheets with which to possibly stuff ballot boxes. Under the latter, the authorities would again obtain a proportion of the votes cast for the below-threshold candidate parties.

Some of the hottest discussions have focused on a norm that would prevent Yulia Tymoshenko from running. Under Article 9 of the bill, “a citizen convicted of an intentional crime shall not be nominated as a candidate or elected a parliament member if this conviction has not been spent or cancelled through a legally established procedure.” This norm caused an energetic protest from the Venice Commission at a time when Tymoshenko was under investigation and the guilty verdict was looming. The commission requested to limit the passive election right to only those persons who have committed a grave crime. This remark was buttressed with references to the Code of Good Practice in Electoral Matters adopted by the Venice Commission. Truth be told, this norm is an old one in Ukrainian legislation, but the commission has not reacted to it until now. In any case, the sponsors of the bill ignored this recommendation from Europe, too.

FOREWARNED AND DEREGISTERED

A tendency is still true in the political and electoral culture of Ukraine that who controls election commissions wins the election. The Central Election Commission needs no special introduction. It is a permanent body which has been fully subordinated to the ruling party in its decision making for a long time now. It has wide-ranging authority. For example, the CEC registers MP candidates and cancels their registrations, and it can deny registration if a candidate’s documents are found to be “improperly drawn up.”

An individual candidate or a political entity may receive a warning after which one more violation of the election law may entail deregistration. Grounds for this warning include “violation of electioneering restrictions by a party (bloc) or MP candidate.” The fact of the violation is established by the CEC rather than in court. Clearly, given the current advances in dark-side legal technology, falsifying two violations of the election regulations is a cinch, so deregistration, like the sword of Damocles, will hang over every opposition candidate.

SHE IS SERVING TIME, THEY ARE COUNTING

In their turn, the constituency and district election commissions will bear the responsibility for counting the ballots and establishing the results “in the field”. These are the bodies that can pass decisions recognizing elections in individual districts as invalid.

At first glance, bill No. 9265-1 is more democratic than the 2001 law on local elections. Constituency election commissions are not formed by the parliamentary parties and controlled by the Party of Regions. Instead, they are set up by the CEC on submissions from political parties. The parties that have their factions in the Verkhovna Rada have guaranteed one-member representation on the constituency election commissions. The rest of the places on these commissions are filled based via a drawing among non-parliamentary parties.

However, the bill gives the ruling party numerous tools to control election commissions. In order to have a quorum, over half of the commission members must be present. Both constituency and district commissions pass decisions by a majority of the votes cast by the members in attendance, except for the day of the national vote when at least two-thirds are required to be present of which, again, two-thirds need to vote aye. In other words, if a constituency commission has between 12 and 18 members, 10 (8-12 on the vote day) make a quorum if all members are in attendance. Three parties – the People’s Party, the Party of Regions and the Communist Party – currently have factions in parliament. That is to say, out of 6-10 (8-12 on the vote day) commission members needed to pass a decision, three will definitely be appointed by pro-government forces. Now candidates from non-parliamentary parties will also largely be pro-government, because using its financial and administrative resources, the Party of Regions alone can secure the registration of several parties and have their representatives put on election commissions.

The regulations governing quorum and voting procedures that are spelled out in the bill are in direct contradiction to the standards set by the Venice Commission. The latter recommends adopting decisions by a qualified majority or by consensus.


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