Re­form Watch

Ed­i­tor’s Note: The Kyiv Post tracks the progress made by Ukraine’s post-Euro-Maidan Revo­lu­tion lead­ers in mak­ing struc­tural changes in the pub­lic in­ter­est in a broad range of ar­eas, from the de­fense and en­ergy sec­tors, to tax­a­tion and pen­sions. Be­low are

Kyiv Post - - National - Pro­test­ers out­side Ukraine's par­lia­ment in Kyiv on Oct. 17 de­mand the cre­ation of an anti-cor­rup­tion court. (Volodymyr Petrov)


Time is run­ning out for more ma­jor re­form this year in Ukraine. Ukrainian Pres­i­dent Petro Poroshenko, after be­ing forced to sup­port the cre­ation of anti-cor­rup­tion court on Oct. 4, is stalling for time.

On Nov. 8, a month after the Euro­pean Com­mis­sion for Democ­racy Through Law (bet­ter known as the Coun­cil of Europe's Venice Com­mis­sion) pro­vided rec­om­men­da­tions for the anti-cor­rup­tion bill, Poroshenko asked the Rada to form a work­ing group to draft the bill on an anti-cor­rup­tion court.

The op­po­si­tion vowed to call off their own bill on anti-cor­rup­tion court, fol­low­ing the Venice Com­mis­sion’s rec­om­men­da­tion that the pres­i­dent should sub­mit the bill him­self, and ex­pect­ing for the pres­i­dent to use their draft. But now that Poroshenko wants to de­velop one from scratch, the op­po­si­tion law­mak­ers ac­cuse him of play­ing for time.

Mean­while the cre­ation of an agri­cul­tural land mar­ket in Ukraine is stalled, and Ukraine’s fi­nan­cial back­ers ap­pear to be re­signed to the fact that no progress will be made un­til next year at the ear­li­est.

The is­sue of the with­drawal of im­mu­nity from crim­i­nal pros­e­cu­tion from law­mak­ers is also shelved for now, law­mak­ers hav­ing voted on Oct. 19 to send two bills on this for scru­tiny by the cur­rently non-func­tion­ing Con­sti­tu­tional Court.

But there is still a glim­mer of hope for progress on elec­toral re­form: Law­mak­ers on Nov. 7 voted at first read­ing for a bill that would over­haul Ukraine elec­toral sys­tem — one of the de­mands of the pro­test­ers who have re­mained camped out­side the Rada since Oct. 17.

Elec­toral re­form

The par­lia­men­tary elec­tions are to take place on Oct. 27, 2019, the last Sun­day of the last month of the fifth year since the pre­vi­ous elec­tions, ac­cord­ing to Ar­ti­cle 77 of the con­sti­tu­tion.

The pres­i­den­tial elec­tion is on March 31, 2019, only 17 months away, while par­lia­men­tary elec­tions are nearly two years away.

Still, the ques­tion of over­haul­ing the elec­toral sys­tem is al­ready be­com­ing more ur­gent.

The cur­rent elec­toral leg­is­la­tion, in­tro­duced in 2011 and used to elect par­lia­ment in 2012 and 2014, is a mixed one.

Ac­cord­ing to it, half of the par­lia­ment’s 450 seats are awarded to the law­mak­ers elected in in­di­vid­ual sim­ple-ma­jor­ity con­stituen­cies, while the other half of the seats are di­vided be­tween the can­di­dates on the party tick­ets that got more than 5 per­cent of the votes in the gen­eral vot­ing.

The sim­ple-ma­jor­ity part of the sys­tem has been heav­ily crit­i­cized for its vul­ner­a­bil­ity to cor­rup­tion. Ma­jor po­lit­i­cal par­ties have been sus­pected of tak­ing bribes to al­low un­known can­di­dates to run un­der their brand.

Since the Euro-Maidan Revo­lu­tion, the can­ce­la­tion of the sim­ple-ma­jor­ity sys­tem has been among the main de­mands of the pub­lic and re­formist law­mak­ers.

On Nov. 7, the Verkhovna Rada un­ex­pect­edly ap­proved the first read­ing of a new draft of the elec­toral code that en­vis­ages a pro­por­tional elec­tion sys­tem with open party lists. If fully adopted, it would be Ukraine's most pro­gres­sive sys­tem yet.

What will change

Un­der the pro­posed sys­tem, not only would the num­ber of seats held in par­lia­ment by a party be in di­rect pro­por­tion to its share of the pop­u­lar vote, the open list sys­tem would mean that the or­der of names on the party lists of can­di­dates would be de­ter­mined by vot­ers rather than party bosses (the more votes a can­di­date won from the pub­lic, the higher their place on the party list.)

Un­der such sys­tem, Ukraine will have just 27 con­stituen­cies. In each of them, ev­ery party presents a list of five to 12 can­di­dates from its ticket. The vot­ers vote twice: once, for the party, and then for a can­di­date from its lo­cal list. Vot­ing for a can­di­date won’t be oblig­a­tory: this part of the bal­lot can be left blank.

The Cen­tral Elec­tion Com­mis­sion will cal­cu­late the num­ber of votes re­quired to get one seat in par­lia­ment — so-called “elec­toral quota.” A party’s re­sult in each of the 27 con­stituen­cies is then di­vided by this quota to get the num­ber of seats won from each of the re­gions. The seats won then go to the can­di­dates from the lo­cal list that got the most votes on the sec­ond part of the bal­lot.

This would rep­re­sent an im­prove­ment on the cur­rent, mixed-vot­ing sys­tem which has deep flaws.

What’s wrong now

There are three main prob­lems with the cur­rent sys­tem: Firstly, it pro­duces a non-pro­por­tional re­sult. For ex­am­ple, in the 2014 early elec­tions the party that gained the high­est share of the vote in party-list vot­ing was the Pop­u­lar Front, with 22.12 per­cent. Sec­ond was the pro-pres­i­den­tial Bloc of Petro Poroshenko, with 21.82 per­cent. How­ever, when the seats won in the sim­ple-ma­jor­ity con­stituen­cies were added in, the Pop­u­lar Front ended up with only 82 seats com­pared to the 123 won by the Bloc of Petro Poroshenko.

Sec­ondly, vot­ing in sim­ple-ma­jor­ity con­stituen­cies has al­most al­ways been plagued with ir­reg­u­lar­i­ties. The can­di­dates for th­ese seats are more of­ten than not pow­er­ful lo­cal po­lit­i­cal and busi­ness fig­ures, who are in turn con­nected to po­lit­i­cal and busi­ness fig­ures of the re­gional and na­tional level. They have the re­sources to run slick cam­paigns, and bribe or co­erce vot­ers (who might be their em­ploy­ees) into vot­ing for them, or to in­flu­ence the lo­cal state bu­reau­cracy so as to sway a re­sult in their fa­vor. This means that around half of the seats in par­lia­ment are oc­cu­pied by law­mak­ers in­flu­enced by na­tional po­lit­i­cal and busi­ness fig­ures — oli­garchs.

Thirdly, the present “closed-list” party list sys­tem en­cour­ages cor­rup­tion: Those high up on the list have the great­est chance of win­ning a seat in par­lia­ment, and the or­der of the list is de­cided by party bosses. Ac­cord­ing to An­driy Me­le­shevych, writ­ing in the Kyiv-Mo­hyla Law and Pol­i­tics Jour­nal 2 (2016): 147–170 in an ar­ti­cle en­ti­tled “The Cost of Par­lia­men­tary Pol­i­tics in Ukraine,” busi­ness­men who want a place on a party list (and the po­ten­tial im­mu­nity from pros­e­cu­tion and pro­tec­tion from cor­po­rate raid­ing that comes with a seat in the Rada) can ex­pect to “do­nate” from $3 mil­lion to $5 mil­lion to party cof­fers to get on the list. This can rise to $20 mil­lion in some cases, Me­le­shevych writes.

The sys­tem pro­posed in the new elec­toral code would thus ad­dress all three prob­lems by be­ing pro­por­tional, do­ing away with sim­ple-ma­jor­ity con­stituen­cies, and mak­ing party lists open rather than fixed.

More prob­lems

How­ever, prob­lems other than the ba­sic vot­ing sys­tem also have to be solved. For a start, Ukraine has to amend its crim­i­nal code, pro­ce­dure code and code of ad­min­is­tra­tive of­fences to im­pose stiffer penal­ties for elec­toral fraud, ac­cord­ing to po­lit­i­cal an­a­lyst Brian Mef­ford, writ­ing for the At­lantic Coun­cil on Oct. 4.

“Even one suc­cess­ful pros­e­cu­tion of a bla­tant act of elec­toral fraud would have a much-needed chill­ing ef­fect on oth­ers con­tem­plat­ing such il­le­gal ac­tions,” Mef­ford wrote. Hith­erto in Ukraine, even bla­tant vi­o­la­tions of elec­tion leg­is­la­tion have largely gone un­pun­ished.

A fur­ther prob­lem is that Ukraine’s Cen­tral Elec­tion Com­mis­sion, the body that has pow­ers to over­see the pres­i­den­tial, par­lia­men­tary, and lo­cal elec­tions, needs to be re-ap­pointed, as only 2 of its 15 mem­bers have a cur­rent man­date. If the com­mis­sion is not re-ap­pointed, the va­lid­ity of fu­ture elec­tions could be in ques­tion, ac­cord­ing to Mef­ford. The com­mis­sion mem­bers, nom­i­nated by the pres­i­dent and ap­proved by par­lia­ment, are ap­pointed for seven years.

How­ever, the pres­i­dent has shown no sign of nom­i­nat­ing any can­di­dates, and given the highly po­lit­i­cal na­ture of such ap­point­ments, agree­ing them with par­lia­ment could be a har­row­ing process for Poroshenko, who of­ten re­lies on fac­tions con­trolled by oli­garchs to pro­duce ma­jor­ity votes in par­lia­ment.

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