Wednesday, 30 September

2019 is an entirely electoral year for Ukraine. After the presidential campaign, the new head of state did not give the Ukrainians the opportunity to breathe out calmly for half a year until the next parliamentary elections. He appointed the next snap elections to the Verkhovna Rada for mid-summer. And while the Constitutional Court (CC) decides whether the President had the right to dissolve the main legislative body of the country, MPs are concerned about the adoption of the new draft Electoral Code of Ukraine. It would seem, why the hurry because the rules of the updated Code will not be in power during the following election campaign?

Attention: the lists are closing!

The electoral legislation in Ukraine is imperfect – both the government and the opposition recognize it. There are especially many questions about the parliamentary race. The search for the optimal model has been ongoing for a long time. Now the elections to the Verkhovna Rada are held under a mixed system – proportional and majoritarian. The latter component is blamed the most – according to some experts, the insidious corruption factor lies in it. They say the majoritarians bribe voters and irresponsible and inactive people vote for money.

Many Ukrainian politicians see the future in the proportional system when the struggle for the right to get into Parliament is exclusively for parties. But it is not all simple, because the party lists can be closed and open. In the first case, we have to vote for pigs in a poke, who could buy some high places in the rating parties. Another thing is open lists, in case of which the alleged abuse is minimized. Because the voter does not only vote for the party, but also for its specific representatives, whom he trusts. And what is important, not for certain odious persons determined by the leaders, who have reliable places reserved for them in the lists.

President Volodymyr Zelensky also supports open party lists, but he has submitted a bill, which provides… the closed ones. The team of the head of state explained this position by the agreement reached during the consultations with the leadership of the Parliament. At the same time, they stressed that the future is the open lists. By the way, people’s deputies refused to put this presidential document on the agenda.

Allegedly, we will have open lists with the updated Electoral Code (EC). In early June, the Parliament started work on it, after considering more than three hundred amendments out of about four and a half thousand. But they immediately made a break in sessional plenary work which has to be continued this week.

The issue is long-standing

In the first reading, the Verkhovna Rada voted for the draft EC more than a year and a half ago – in November 2017. Its complete adoption was planned in several months. But it never happened. Nataliia Lynnyk, deputy general director of the NGO Committee of Voters of Ukraine, provided Opinion with interesting statistics:

“Since December 2017, the working group on finalizing amendments to the EC that passed in the first reading started its activity. Until May 2019, 4,300 amendments were considered at 43 meetings, the whole process of consideration took about a hundred hours. Accordingly, the Verkhovna Rada will need about 14 working days to consider the amendments.”

The people’s deputy of Ukraine Nataliia Novak, who was a member of the working group, told Opinion about their achievements. Unfortunately, people’s deputies didn’t attend the meetings too actively, with the exception of the team leader, the Chairman of the Subcommittee on Elections and Referendums of the Verkhovna Rada Committee on Legal Policy and Justice Oleksandr Chernenko, one of the developers of EC Ruslan Sydorovych and Ms Nataliia herself. But the working group worked transparently with the participation of the representatives of the CEC, the State Register of Voters, the Council of Europe and public organizations. Many amendments had been introduced, and if all of them had had to be considered, the Code would have been extremely unbalanced. However, they still need to be considered.

“We decided to go very quickly and reject most of the amendments,” Nataliia Novak continued. “That is, everything must happen quickly, but there is a revision of the relevant Committee on which amendments are the main. We reject the amendments because most of them do not correspond to the first reading and the ideology of the EC. But there are good ones, they will be considered after the Committee confirmes them. Now all declare that they are for the EC, but there are some doubts about this. One can say anything for the sake of PR and commitment to the new electoral legislation. In fact, many people do not like this Code.”

“Now the consideration of the EC goes on, everything is ahead,” Iryna Suslova, people’s deputy of Ukraine, told. “The Parliament has three more plenary weeks before the end of this session. Accordingly, the Code can be considered during these three weeks – it is 100% guaranteed. But the question is, will there be the required number of votes? I have great doubt because the majority of the deputies have clearly expressed their position – they will not support the idea of consideration of the EC.”

When will it enter into force?

Two sides must be considered in the issue of the adoption of the EC – the technical and political ones. According to the director of the Institute of Socio-Political Design “Dialogue” Andrii Myseliuk, it looks incredible from a technical point of view. After all, it is not realistic to consider such a huge number of amendments, to get the necessary votes, especially when deputies are busy with early elections.

“Regarding the political component, the situation is not so simple and unambiguous,” the political scientist told. “Other circumstances come into force. If deputies are engaged in elections under the old system, how much is it favourable for them to be engaged in the work on other elections which will be after the present ones? The law on open electoral lists, as Fata Morgana, has been present in politicians’ speeches since around 2008, especially when they are in opposition or just came to Parliament. But it is still there. It seems that the document will most likely not be adopted at all.”

However, the deputies can adopt the EC even in the summer session, – the Chairman of the Parliament Andrii Parubii is convinced. He noted that this is one of the key tasks of the Parliament of this convocation. But does not this mean that the deputies might support not exactly what we need in a hurry?

“It is quite possible, but we will consider the fact that the Parliament will want to put the EC into effect, not after the day of publication, but in around a year and a half, optimally, starting at least from 2021 or later,” Andrii Magera, Deputy Chairman of the CEC of Ukraine, assured. “Then there will be an opportunity to look closely at this Code, to analyze it, and if there are any inconsistencies, to harmonize its text. At least it must not be put into effect from the date of publication, or in a month or two. We need a long transition period.”

So, the new EC, even if it will soon be adopted, will not enter into force immediately. Its rules will in no way affect the early parliamentary elections of July 21 or even the next ones on October 27, 2019, if the constitutional court claims the presidential bill on the dissolution of Parliament illegitimate.

Waiting for a definite stop

Why then there is such a hurry with the adoption of the EC before the election? Could the new Parliament take care of the Code?

“They claim that the coalition, the parties that were in it, and individual deputies did not fulfil their obligations,” Nataliia Novak explained. “Everyone talked about open lists, although in fact, few people understand what it is. They say we want the list not to be formed by the party leadership. But still, the leader of the party will be present. It is possible to buy places both in regional and national lists, and it is possible to bribe the voter.”

Ms Nataliia gave a real example of corruption that is possible with open lists. For example, we are talking about a regional list. The voter determines the party that he likes and chooses the deputy out of all candidates with numbers from 1 to 10. Let’s say, his choice is #9. And this number needs #1, #2, #3 to fail… He has already “worked” in the neighbourhood with five-storey apartment blocks and bribed voters to vote for him. So, unfair competition can be within the party.

“The competition may be virtuous because people will really vote for activists,” Ms Novak continued. “But who of the activists are known, even in Kyiv? Mostly people are hyped by media. And if, for example, #9 does get a lot of votes, he will receive a certain percentage for moving from the 9th place to the 8th or higher.”

Let’s assume, the deputies will show unanimity and Ukraine will receive a new EC. But won’t we have to put out fires before the elections in the future? Won’t they raise the issue of changing the electoral legislation on the eve of presidential, parliamentary and local elections again and again?

“We should not put a definite stop in the electoral legislation, because the dynamics of the development of technical, network and communication activities are updated annually and provides new opportunities to simplify the electoral processes for voters and the administration of elections,” Nataliia Lynnyk stressed. “Accordingly, the changes to the legislation will be necessary in the future, especially with regard to procedures. The introduction of open lists will put an end to changes in the electoral system, because it has greater legitimacy in the eyes of voters, of course, if it is not undermined by a ridiculous implementation, which can cause distrust among voters when it comes to the distribution of mandates. However, the proper conduct of an information campaign among voters and the professional training of Commission members minimizes these risks.”

From the height of the experience

Is it true that with a proportional system and open lists we will get a perfect electoral system and finally avoid speculation during election campaigns? Opinion addressed those who repeatedly passed through a crucible of parliamentary elections – people’s deputies of Ukraine of the previous convocations – with such a question.

Taras Chornovil (III-VI convocations of the Verkhovna Rada):

“With strong corruption, perhaps the best option is what is proposed – open lists without majorities. It is optimal for the situation in Ukraine, but there is no law that cannot be circumvented. Except for the authors, and 5-6 deputies, no one has read the Electoral Code. As for the parliamentary elections, the basic document, which was voted in the first reading, does not guarantee any electoral lists. There are at least 8 loopholes that allow parties to manipulate so that the candidates they need would pass. So, in fact, the bill that has been bragged about is an absolute fraud. It does not save from political corruption, does not allow voters to seriously influence the results. But if in the end, we see the option proposed by the relevant Committee, we will get a good law. It won’t save us from all the problems, but at least it will improve the situation.”

Liliia Hryhorovych (II-VI convocations of the Verkhovna Rada):

“Only lazy people do not speak about corruption in Ukraine. And what corruption is at the heart of this pyramid? Of course, political. Because when the person “sowed” the district with money or, even worse, bought a place in the closed list from the leader, than he is not a politician, but the corrupt official with a political bias. Ukraine is a country of shareholders, and major shareholders are oligarchs. Obviously, an electoral system with open party lists would be the best. Let us finally give the right to make a choice to his Majesty Source of Power – the Ukrainian people, not to the leader. The responsibility of the voter, probably, won’t come with the first electoral experience, but with the second or the third time he will already feel it. This minimizes political corruption, encourages the emergence of ideological parties, not electoral projects, and activates civil society. The probability of the adoption of this Electoral Code is very high.”        

Ivan Zaiets (I-IV and VI convocations of the Verkhovna Rada):

“I support the majority system, where the nomination is carried out by the party. A system based on the existence of 450 districts. Then we get a small district, where the candidate is as close to the voters as possible. He can go to every house and show the qualities necessary for the exercise of power functions: service to the people, honesty, preparedness for political activity. At first, we can restrict ourselves with the nomination by the parties, and expand the sources of nomination later, for example, with self-nomination. Only in this case, we will get a new quality of the Ukrainian authorities. Those who claim that the majority system is corrupt, have to know – the proportional system with the closed lists is a lot more corrupt. Someone brings a “suitcase” to the leadership of the party – here’s the list and do not smear your head! If the party has ratings, then they pass to the Verkhovna Rada and do their black deeds.”

Oleksandr Myrnyi (VII convocation of the Verkhovna Rada):

“No, it’s the same majority system, but there will be a competition among party members – who will “sow” the most. Plus, the overall percentage will be needed. In general, this system is 2-3% better than the current majority one.”


Text by Viktor Tsvilikhovsky

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