Elec­tion rules

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

The Ukrainian Week - - CONTENTS - An­driy Holub

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 swingout­side Par­lia­ment), to the more re­al­is­tic – Peo­ple's Deputies lost track of their own be­hind-the-scenes deals and ac­ci­den­tally cast more votes than nec­es­sary.

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.

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.

An eter­nal theme. Politi­cians promised elec­toral re­form be­fore all big cam­paigns, and as usual every­thing just ended up with for­mal changes

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