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2 July, 2018  ▪  Andriy Holub

Election Rules

Talk about electoral reform has come to the forefront yet again. Should any real action be expected in the near future?

At the end of April, the next round of elections in newly formed united territorial communities (UTCs) took place in Ukraine. This time, polls were held in only 40 UTCs, a relatively small number. This did not prevent serious rule violations from being recorded during and prior to voting. According to Oleksiy Koshel, head of the Committee of Voters of Ukraine (CVU), the 29 April elections were the dirtiest ones to have taken place in UTCs so far. He also added that parties and candidates "set records for the amount and scale of voter bribery".

This statement went almost unnoticed against the background of the powerful infoglut associated with the presidential and parliamentary elections. Preparations for the main event of the political "Five-Year Plan" have already squeezed almost all other newsmakers out of the media. The number of publications on the pre-election landscape and the main contenders for victory would be enough to last an entire year. That is how long remains until the presidential election itself, although, as experience shows, the amount of printed material and shouted declarations will only continue to grow. The main trend for now is identifying the favourites based on the results of sociological studies. Disclaimers from the researchers themselves that any predictions made a year before election day are at the very least premature go almost unnoticed, and the main figure in current polls is Mr. "Don't Know", whose numbers are double those of the next most popular candidate. Another fruitful topic for discussion is new political projects and ways to promote them. The controversy around the selection of "new leaders" in a TV show announced on leading TV channels belonging to Victor Pinchuk's group StarLightMedia fits nicely into this context.

Under these conditions, the subject of changing electoral legislation has also returned to the agenda. More than six months ago, in November 2017, MPs approved a draft for a new electoral code in its first reading. The document got the minimum required number of votes –  226. The very fact that the vote was successful was a big surprise. Prior to this, The Ukrainian Week interviewed representatives of civil society organisations that monitor elections. All of them expected the bill to fail due to the reluctance of MPs to change the familiar and convenient rules of the game. A defeat was also predicted by People's Deputies themselves from different factions, as well as parliamentary journalists. Even after the vote passed, there were plenty of different explanations why such a decision was made. From the unlikely – MPs were forced to make the decision by "effective pressure on the streets" (at the very same time, an opposition protest led by Mikheil Saakashvili was in full swing outside Parliament), to the more realistic – People's Deputies lost track of their own behind-the-scenes deals and accidentally cast more votes than necessary.

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Since then, work on drafting a version for the second reading has been underway. The situation as of mid-May leaves us with a sense of déjà vu. Predictions on whether the code will be adopted are generally disappointing for supporters of change. Civil movement Chesno, alongside a number of opposition parties, has scheduled a street protest under the slogan "No Elections under Yanukovych's Law" for 17 May. They demand the adoption of a new electoral code as soon as possible. Last year, most of the participants in this campaign organised the aforementioned October protests that later came to be associated with Saakashvili.

At the same time, the current state of affairs is different again. And not just because this time the former Georgian president will definitely not be able to usurp the protests, whose organisers have reduced the number of their demands from three to one – electoral legislation reform.

Currently, a working group formed on the initiative of the specialised Committee on Legal Policy and Justice is working on the draft law. It includes 24 MPs and a number of electoral legislation experts are also involved in its work. However, the members of the group do not seem very interested at the moment. "At the first meeting, 4 MPs turned up, then 5 to the second and 6 to the third. Another 18 meetings and everyone will be there!" head of Civil Network OPORA Olha Aivazovska, who is also participating in the meetings, wrote on Facebook.

The purpose of the working group is to prepare a draft for consideration by the committee. However, neither deadlines, nor set rules for its operation, nor a quorum when making decisions are on the horizon for the working group. The participants in the meetings are gradually discussing each amendment submitted to the draft and determining recommendations for them. According to Parliament Chairman Andriy Parubiy, one of the co-authors of the draft code, 4400 amendments were made by MPs. At one point, Parubiy announced that the electoral code would be voted on in May, but the speaker's forecasts turned out to be extremely optimistic. If these figures are correct, then People's Deputies have broken their own record that was recently set while considering changes to the codes of justice – 4384 amendments were submitted to that draft, making it the longest in the history of the Ukrainian parliament. According to The Ukrainian Week’s sources, the working group for preparing the electoral code has only processed around 500 amendments so far and is moving at a speed of 50-100 amendments per sitting.

"The working group cannot work around the clock. It meets twice a week and works through the amendments professionally. If everyone shouting ‘Give us a code’ just needs any old document called ‘Election Code’, we can vote on it tomorrow. But if we need a quality document taking into account all the nuances and good rules for holding elections, then let the people work," another co-author of the draft, Oleksandr Chernenko, replied to questions about the approximate timing when work on it will end.

According to Chernenko and Aivazovska, a realistic date for the working group to complete its task is September this year. Only then will it be possible to talk about bringing the matter to the committee and a vote.

The example of electoral reform could be used to create a textbook on all the problems that plague Ukrainian politics in general and the Verkhovna Rada in particular. First of all, MPs submitted a wild number of amendments within two weeks of the project being approved in the first reading. This directly indicates the intentions of certain People's Deputies to delay the process as much as possible. The voting alone on the aforementioned codes of justice with a similar number of amendments stretched over more than a month. In that case, MPs demanded that almost every change be put up for confirmation by the chamber regardless of the committee's decision. In the end, the documents were adopted as worded by the committee. However, this did not guarantee their quality: Lozovyi's amendments made it into the codes, which created serious problems for law enforcement agencies when investigating any crimes.

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Apparently, the electoral code will be another exception and regardless of the results of discussions in the working group, many changes will be made during consideration by the committee and in the chamber itself.

According to Oleksiy Koshel, no MPs have been consulted while the amendments are being drafted. However, the organisation he leads has not sent any of its representatives to the working group. "The work is moving very slowly. Representatives of both pro-government and opposition factions are making public statements to say that it is unrealistic for the code to be adopted. So no one really needs this work to be done and the chances of this code being passed are very low," says the head of the CVU. He adds that the adoption of electoral reform, in addition to serious work, requires considerable pressure to be put on Parliament.

As for the content of amendments from MPs, Oleksandr Chernenko says that they turned their attention to almost every article of the original draft. Olha Aivazovska notes that, although the electoral code applies to the whole system, most amendments from MPs nevertheless concern parliamentary elections. "From what we can see, some of the amendments are insightful and their authors were guided by the draft code. Other People's Deputies, conversely, decided to include earlier draft laws on parliamentary elections as amendments to the code. In other words, they took a full draft law and cut it down into amendments to submit it as separate articles. The crazy amount (of amendments – Ed.) is partly due to this approach that has recently been used by MPs," she adds.

Another side to the problem is that the document cannot be passed in its original form. All of The Ukrainian Week's sources agree on this point. According to Aivazovska, the draft code was prepared under tight time constraints and contains many contradictions.

In fact, draft law No. 3112-1 by Parubiy, Chernenko and a third MP Leonid Yemets duplicates the norms of another draft electoral code authored by Yuriy Kliuchkovskyi that was registered in 2010. It was submitted in 2015 primarily as a reaction to another draft by ex-Party of Regions member Valeriy Pysarenko. Then the document sat in Parliament for two years without a chance of being adopted before its moment of glory came thanks to the unexpected successful vote. The main problem may be that it is simply outdated.

"Many changes have been made over the last 10 years. They concern the operation of the State Register of Voters, campaigning, reporting on election funds, the procedure for registering candidates, the formation of electoral commissions, how votes are counted, etc. The whole text should be reviewed with respect to new developments: gender quotas, participation in elections for internally displaced people and the disabled, etc. There are even references to old anti-corruption rules. As is, this is not a reform. It is simply a return to the old way of organising elections," says Olha Aivazovska.

The Ukrainian Week's sources warn that the issue of electoral reform should not turn into a battle of the buzzwords. Oleksiy Koshel points out that the idea of changing the electoral system that is on everyone’s lips should not be confused with actual electoral reform: "An electoral system with open lists should not be seen as a panacea against bribing voters or the influence of oligarchs. If we proceed by adopting an electoral code, we should put serious safeguards against such issues in other regulatory documents. Unfortunately, this discussion is continuing at the expert level while parliamentarians try to turn everything into a mega-victory for themselves."

Another risk is that Parliament will delay work on the bill as much as possible and then refuse to adopt it on the pretext that large-scale changes cannot be made less than a year before the country goes to the polls. They will restrict themselves to cosmetic changes and the issue of electoral reform, which the coalition promised to look at in 2015, will again be postponed indefinitely. Even now, in private conversations most MPs are not very bothered about the fate of the law under which they will stand for re-election. They are more interested in determining the favourites for the upcoming presidential poll. Many are convinced that this will influence their fate far more than electoral legislation will.

Translated by Jonathan Reilly

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