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29 October, 2011  ▪  Alina Pastukhova,  Alla Lazareva

The Council of Europe: The Election Law Should Not Serve the Government

Significant attention was paid to Ukraine, particularly the issue of elections and the judiciary at the session of the Venice Commission on 14-15 October

The more critically Western politicians look at authoritarianism in Ukraine, the more stubbornly official Kyiv clings to its position. Step by step, Ukrainians are being deprived of their rights to pluralism, freedom of protest and fair justice. Ukrainian lawyers notice disparities between Ukrainian and European legislation where public figures condemn totalitarian practices. The Venice Commission has been talking about serious gaps in Ukrainian legislation throughout Ukraine’s 16 years as a member of the Council of Europe. The recent cause for disagreement, i.e. the new draft law on elections, could launch a deep conflict between Ukraine and the Council of Europe. To find out more, The Ukrainian Week talks to the Venice Commission’s President, Gianni Buquicchio and Secretary, Thomas Markert.

FORCE IN POLITICS

“This is just a draft law and we do not have a final version,” explained Mr. Markert, “therefore, our conclusions are only interim ones. Certain improvements have been made since we first received the document, for example, in terms of conditions for the activities of the mass media during an election. Still, we are very much concerned about the change from the proportional election system to the mixed one.”  

Both Venice Commission professionals and other election law experts believe the mixed system can only operate effectively in countries where society is well-structured politically, nothing threatens pluralism and political parties have stable electorates. Ukraine, where things are done completely to the contrary, does not belong to this category. Thus, the Council of Europe insistently recommends a different model, i.e. regional open lists, such as those used by Poland, for instance, to elect its Parliament.

Under this system, the ballots only tell the voters the parties to which candidates belong, but people vote for the individuals that they consider to be better. This “automatically” also helps a party to get more votes, even if this is through politicians who enjoy the mass support of the populace. As a result, the shadow trading of places in the ballots that used to thrive in Ukraine, loses its foundation. Under the system used in Poland, regional constituencies are not based on the administrative criterion alone. The system makes sure that each constituency can send its representative to Parliament. Quotas for MPs depend on the number of voters living in each constituency.

“The Venice Commission and PACE base their views on the negative experience of the mixed system Ukraine, used in 1998 and 2002,” explains Mr. Buquicchio. “The 2010 local election held under the mixed system, also failed to win a positive response from the international community. We would like to see a proportional voting system with regional and open lists. I would like to remind you that the Venice Commission began to look at the draft election code drafted by the Verkhovna Rada’s special working group in 2010. This version, which proposed the use of the proportional system with regional lists, had our approval. But work on this document has ceased.”

The leadership of the Venice Commission highlights another dubious element of the draft law proposed by the Party of Regions: the lack of clear criteria for defining constituencies. “It’s not normal for a large country, such as Ukraine, to become one single vast constituency,” believes Mr. Markert. “Even small countries, such as Liechtenstein, have several constituencies! The system offered by the ruling party in Ukraine obliterates the connection between all individual voting and the MP elected to parliament. The 5% threshold for political parties and the ban on political blocs threatens the pluralism of the future Verkhovna Rada.”

The Venice Commission considers it unacceptable, that the new election law is drafted in such a way as to cater to the interests of only one political force, without any regard to the will of opposition parties. “This mixed system works in many countries,” Mr. Markert explains, “but specifically in Ukraine, we remember that every time, it demonstrating two violations: the use of administrative leverage and the nomination of pseudo-candidates who referred to themselves as independent, but no sooner did they get into parliament than they joined the ruling majority. In 2002, for instance, the opposition won the election. However, the government was able to completely turn the situation around by using its loyal majority members.”   

The Venice Commission believes that the election law can only be changed if all leading participants in the political process give their consent. “The system cannot give privileges to one political force only,” Mr. Markert stresses. “The opposition is forced to make changes that it does not agree with. This can undermine confidence in election results”.  The conclusions of the Venice Commission meeting from 14 October also note that “such fundamental changes without extensive public discussions and consultations can compromise the legitimacy of the draft law.” However, this was not done in Ukraine.

THE QUALITY OF THE JUDICIARY

The civilized world has long been focusing on both the rule of law and the essence of actions. Needless to say, in evaluating ongoing judicial reform in Ukraine, European experts also take into account its formal elements, such as the list of the cancelled authorities of the Supreme Court, or the list of expanded powers of the Supreme Council of Justice. Yet, what matters most is the new sense, which comes after each innovation.

“The composition of the Supreme Council of Justice is cause for concern,” believes Mr. Buquicchio. “Ukraine needs to change the principles of its formation. The authority to appoint judges once their 5-year term in office has ended should not lie with the Verkhovna Rada.”   

The opposition is demanding the introduction of jury trials. Yet, the Venice Commission says “this is possible, but it is not a panacea.” According to Mr. Buquicchio, the priority is to initially develop mechanisms that would allow the jury system to operate effectively. “This requires a change of mentality, not only procedures”, stresses the President of the Venice Commission.

The Venice Commission has long refused to give a direct evaluation of the criminal proceedings against opposition leaders in Ukraine. “We are not monitoring these cases”, they said only a month ago. This tone unexpectedly changed in communications with Kyiv at the October session. Despite the disclaimer about Tymoshenko’s verdict being outside the Commission’s competence, official conclusions following the session contain clear comments regarding Judge Kireev. “Temporary judges – those who need to have at least 5 years of working experience before they can gain permanent status –are not completely independent, since they are monitored prior to receiving an appointment. The judge in Ms. Tymoshenko’s case was not actually a fully-fledged judge,” state the above-mentioned conclusions .

Once again, all this pertains to the quality of the judiciary. Of course, Ukraine will be able to offer a list of improved laws, approved directives and maybe even other administrative improvements, which it is in dire need of, at the January session of the Council of Europe. But what about the essence of the current Ukrainian government’s nature? Its habit of forcing its way through and ignoring the opposition? What about its inability to listen, not only political rivals, but also international partners?

“What will happen if Ukraine ignores the recommendations of the Venice Commission and introduces the mixed election system?” The Ukrainian Week asked Thomas Markert. It only took him a second to answer. “In general, the Council of Europe’s recommendations are not mandatory for implementation,” he said. “But, both PACE and the EU listen to what we have to say. Good dialogue and cooperation with the Venice Commission will illustrate the quality of Ukraine’s international relations.”

So when the Party of Regions finally enforces the controversial election law, it is difficult to forecast any scenario, other than a deepening of the international isolation of Kyiv. 


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