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27 October, 2011

How Yet Another Pseudoreform Was Forged

The so-called election reform - nothing but a new version of the Law “On the Election of People’s Deputies” - has a curious background and an undisguised political motive

The working group set up by President Yanukovych was initially composed of MPs loyal to the Party of Regions, individual researchers and experts and a few Central Election Committee members. In time, representatives of international organizations joined up, actively criticizing the closed manner in which goodness knows what documents were drafted. Later, two US organizations, the National Democracy Institute and International Republican Institute, left the working group as a sign of protest. This demarche forced the government to demonstrate openness and the group even welcomed Ukrainian NGOs. Shortly before this, the group’s leaders had to let in a few opposition MPs, which were not delegated by their political factions or parties. Accordingly, this gave those who staged the whole show a reasonable argument that was supposed to bring public, particularly international, criticism to a halt, since at first glance, it appeared that the government and the opposition were finally working together. However, his window-dressing did not legitimize the process.

The question of what the experts were working on remained open. Initial debates concerned general issues which could logically lie in the foundation of any law regulating the election process, be they presidential, parliamentary or local elections. One issue was whether the public should have the right to observe an election and under what rules. The working group would gather once a month and “debate” something or other for 1.5 hours. The process involving experts, politicians and civil servants was quite interesting, bearing in mind that group members offered individual recommendations which were not voted on, while Oleksandr Lavrynovych, the Minister of Justice, took them to the President for consideration. It was difficult to imagine though, how the Head of State could, for example, decide on the principle for the setting up of committees at different levels or to organize voting in constituencies abroad.

Unofficial tasks that were tacitly set for the organizers were varied and sometimes controversial. They included making the process “democratic”, ensuring its nominal legitimacy, passing the new Law “On the Election of MPs” a year before the beginning of the election campaign in accordance with international standards and at the same time, winning the election. The latter is perfectly in line with Ukrainian legislative traditions whereby rules must serve the creation of obvious advantages for candidates loyal to those in power rather than serve a fair process and equal rights for all parties.

At the very start of operations, group members were informed that there was a range of taboo questions, the discussion of which did not have the President’s blessing. One of them was the issue of the election system. In other words, the working group set up to improve election legislation missed the key point – a fundamental system for voting and the determination of the results. As a result, even the Venice Commission that generally does not criticize election system issues, noted that returning to the mixed system with its drawbacks, as experienced in Ukraine, was inexpedient and once again recommended the proportional system with open regional lists. Comments to the Venice Commission’s interim conclusions, which were distributed for the consideration of the working group, included an item called “Cannot be Taken into Account” in the table, stating: According to international standards, countries shall solve the issue of the election system internally.

This being the case, the Presidential Administration should openly indicate the level and office where this “internal” decision was made. Obviously, the Administration had already made some decisions in the spring. It was then that the document was unexpectedly discussed, item by item, at a two-day session. This was unexpected enough for only one or two experts in the group to be prepared for the discussion. Invitations to this discussion were received by experts on the eve of the meeting, together with the agenda, which included the consideration of issues for a period of the traditional several hours. The draft law was drafted by the Ministry of Justice “based on conceptual discussions,” and the item-by-item discussion, for which the text of the voluminous document was unavailable, looked like a mockery, and served as a demonstration of official approval.

On 10 October, before the disclosure of the official opinion of the Venice Commission, the draft law was submitted to the Verkhovna Rada. Surprisingly, it was registered by MPs who had never been part of the working group. Thus the situation whereby a law is drafted by a third party outside the Verkhovna Rada, which makes no political decisions, then submitted by MPs who had not worked on procedural issues and norms, is a complete farce. There is not much left to do: ensure obedient voting by the loyal majority, after which, even parliamentary elections will probably turn into a replica of the infamous “choice without choice” 2010 local election.  

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