Comments on the law on Election of People’s Deputies of Ukraine adopted by the Verkhovna Rada on November 17, 2011 This document was jointly prepared by The International Foundation for Electoral Systems (IFES) and the Agency for Legislative Initiatives (ALI)
November 29, 2011
I. Background On November 17, 2011, opposition members of Ukraine’s legislature joined government members in voting for a bill on elections to Ukraine’s parliament. The bill was developed by a Temporary Special Commission convened in early November to find a compromise between the various draft parliamentary election laws that had been registered with the legislature (in this document, we refer to the proposed law that was approved as the “TSC Bill”). This briefing comments on the key provisions on the TSC Bill and especially on the ways in which it differs from earlier proposals. This briefing refers frequently to a draft parliamentary election law that was prepared as a result of the work of a Presidential Working Group (the “Working Group Draft”). Earlier this year, at the request of the Ministry of Justice, both the Venice Commission/OSCE/ODIHR and IFES reviewed and commented on the Working Group Draft and its consistency with international standards. As the TSC Bill contains many of the same provisions as the Working Group Draft, both the Venice Commission opinion and the IFES Review are useful references. This briefing also refers to a draft election law that largely followed the Working Group Draft that was introduced by members of the governing party on October 10, 2011 under registration number 9265-1 (the “Majority Draft”). II. Key Provisions The TSC Bill is based on and is largely similar to the Working Group Draft. As such, it includes some of the flaws in that document that were identified in the Opinion of the Venice Commission/OSCE/ODIHR and the IFES Review. However, it also includes a number of changes, many of which strengthen electoral procedures or increase the transparency. It also differs in a number of key respects from the Majority Draft, which included some provisions of which both IFES and Ukrainian civil society groups were highly critical. The most significant provisions in the TSC Bill are as follows:
Electoral System 1.
The TSC Bill follows the Working Group Draft with respect to the electoral system. In particular, it: · Changes the way deputies are elected. Currently, all 450 seats in parliament are allocated through closed list proportional representation (“PR”) in a single nationwide constituency. The TSC Bill calls for the election of 225 seats through first-past-the-post contests in singlemandate constituencies, with the remaining 225 seats being elected through closed list PR in a nationwide constituency. · Eliminates electoral blocs as a vehicle for participation in the PR component. Parties will have now have to submit their own candidate lists rather than banding together to issue a joint list. · Increases the electoral threshold for the nationwide PR constituency to 5%. Parties that win less than 5% of the vote in the nationwide constituency will not win any of the PR seats. As is discussed more fully elsewhere, these changes strongly favour more popular parties and parties with strong regional bases at the expense of less popular parties.1 For this reason, the new system can be expected eventually to force a consolidation within Ukraine’s political party system, which is currently highly fragmented.
Electoral Constituencies 2.
The TSC Bill includes a new provisions relating to the drawing of boundaries of single member districts (“SMDs”): a) Districts will be announced 175 days before voting day. This is a significant improvement over the 90 days proposed in the Working Group Draft, as it will allow more time for parties and candidates to plan their campaigns and for the CEC to prepare for the election. However, we note that, on this timeline, decisions regarding district boundaries in the 2012 parliamentary elections will need to be made by mid-April. As is discussed further below, this leaves very little time for the government to introduce further legislation governing the creation of electoral districts. b) The number of voters in a district may not deviate by more than 12% from the average number of votes across all districts. This compares with a 10% variance in the Working Group Draft. While this level of variance remains within international standards, it would helpful for the law to provide guidance on when the CEC may or should deviate from the average (for example, to accommodate communities of interest). Rules of that kind would make districting more transparent and reduce the risk that the number of voters in a district could be manipulated for partisan advantage. This issue could be addressed in the law on territorial organization of elections.
1
See IFES Review and Analysis of the Draft Law on the Election of People’s Deputies of Ukraine, International foundation for Electoral Systems (IFES), September 2011, p.10.
c) Districts will be created within the boundaries of oblasts, the Crimea AR and Kyiv and Stevastopol administrative regions. The use of existing administrative boundaries in creating electoral districts is a common practice that helps promote representation of communities of interest. Unlike the Majority Draft, the TSC Bill does not make any reference to the need for contiguity of electoral districts. A requirement for contiguity can help ensure districts that are rational and limit the scope for partisan gerrymandering in the creation of district boundaries. This issue could be addressed in the law on territorial organization of elections. We also note that the TSC Bill does not follow the Majority Draft in creating a role for local authorities in drawing up district boundaries. This choice is to be welcomed. The involvement of political bodies in creating district boundaries would have been a step away from the transparent, principled and nonpartisan districting that should be Ukraine’s goal. 3.
Unlike the Majority Draft, the TSC Bill allows voters abroad to participate in elections in SMDs. Article 22.2 requires that each voter abroad be assigned to one of the SMDs created within the Kyiv administrative region. Overseas voters are to be distributed evenly among all the districts in Kyiv, although no guidance is given as to how any particular voter will be assigned to a particular district. It would be helpful for the law on territorial organization of elections to establish procedures that ensure that the allocation of overseas voters to particular districts is done in a way that eliminates the possibility of partisan manipulation. It is also worth noting that, given the requirement that the number of voters in a district may vary by no more than 12%, the inclusion of more than 400,000 voters abroad could result in a relatively high number seats being created in the Kyiv administrative region.
4.
The TSC Bill does not include an equivalent to Article 5 of the Transitional Provisions in the Working Group Draft, which called for the Cabinet of Ministers of Ukraine to pass a Law on the Territorial Organization of Ukraine within 3 months of the Law on Election of People’s Deputies of Ukraine coming into force. It also does not include an equivalent of article 7 of the Transitional Provisions, which called on the CEC to regulate territorial organization of elections by its own actions until the law was passed. The removal of these provisions could be read as suggesting a lack of intent to proceed with further legislation relating to the territorial organization of elections. That would be unfortunate. The provisions contained in Article 18 of the TSC Bill provide very little guidance to the CEC as to how the district boundaries are to be drawn. We strongly encourage the government to pass legislation establishing clear principles and procedures for the creation of district boundaries to ensure that the process is transparent and nonpartisan. As mentioned above, the TSC Bill calls for finalization of district boundaries for the 2012 parliamentary elections by April 2012. If the government is to legislate further on the creation of district boundaries in time to influence the creation of boundaries for the 2012 parliamentary elections, then it must act quickly.
Election Precincts 5.
Article 22.3 removes a provision from the Working Group Draft that allowed temporary election precincts overseas to be established outside diplomatic posts. This change increases the transparency and predictability of voting abroad and eliminates the possibility that the establishment of election precincts abroad could be influenced by partisan considerations. Restricting voting to diplomatic posts will, however,
reduce the ability of the CEC to provide voting facilities to some voters. 6.
According to Article 7.4 of Transitional Provisions of the TSC Bill, the CEC has to ensure the establishment of the permanent election precincts 190 days before the day of election, 10 days longer than under the Working Group Draft. This new timeline will ensure that election precincts are established before the boundaries of the SMDs.
7.
Under Articles 29.3 and 29.4 of the TSC Bill, the number of voters at the election precinct (except for election precincts abroad) cannot exceed 2,500 voters. The Working Group Draft allowed the number of voters to exceed 2500 in certain cases. International experts and observers have repeatedly recommended that the size of electoral precincts be reduced to facilitate the efficient administration of elections and prevent overcrowding. However, the hard limit proposed in the TSC draft may not be the best way of achieving this goal as it will reduce the flexibility open to the CEC in exceptional circumstances. A better approach would be to reduce the maximum number of voters in an electoral precinct to a lower number (perhaps 1800), but to allow exceptions in defined circumstances.
Election Commissions 8.
The TSC Bill follows the formula for the composition of election commission members set out in the Working Group Draft. Each party represented in the parliament will be entitled to nominate one member on each commission. The remaining seats on the CEC and District Election Commissions (DECs) will be filled with nominees of parties participating in elections chosen by lot. The remaining seats on PECs will be filled with nominees of participating parties and self-nominated candidates chosen by lot. Under article 5.1 of the transitional provisions, the right to nominate election commission members during the 2012 elections is given not to parties but to each of the five parliamentary fractions. Nominations of a fraction are to be signed by the head of the fraction. Given that some fractions are made up of a number of parties whose interests do not necessarily coincide, choosing a single nominee for each election commission may prove challenging.
9.
Article 37.3(2) of the TSC Bill allows for the replacement of election commission members by the party or candidate that nominated them. No reason need be given for such replacement. A similar rule is included in Ukraine’s current parliamentary election law, but was removed in the Working Group Draft. Both IFES and the Venice Commission praised this removal as a step towards the independence and professionalization of election commissions. While some in Ukraine have called for a right of recall to address circumstances in which individual election commission are subject to bribery or intimidation, international standards clearly call for election commissioners to be independent of the parties that appoint them.2 Over the long term, the integrity of the election system will be best served by greater professionalization of election commissions and less, not more, influence by politicians on their work.
10.
Under Article 33.10, DEC and PEC decisions made before election day require the support of a majority of commission members, not a majority of those present as in the Working Group Draft. Decisions made on or after election day require a majority of those present, unless less than 2/3 of members a represent, in which case a decision may be made by 2/3 of those present. These provisions will help ensure that
2
Venice Commission. Code of Good Practice in Electoral Matters. October 2002. II.3.1.f.
decisions are not made by a minority of commissioners, while ensuring that commissions can be effective on election day. 11.
Article 35.5 Calls for decisions of DECs to be published on the CEC website. This is a welcome increase in the transparency of election processes.
Candidate Registration 12.
Under Article 55, Candidates in SMDs will be registered by the Central Election Commission (“CEC”), not by DECs as contemplated in previous drafts. All candidates will now be required to submit their registration documents directly to the CEC by no later than 75 days before the election. While this change will significantly increase the burden on the CEC, it avoids the problems associated with the very short timelines that would have applied if the DECs had been responsible for registering candidates in SMDs.
13.
The TSC Bill does not include provisions that were included in the Majority Draft that allowed for the cancellation of candidate registrations by election commissions based on violations of electoral rules. Given the vagueness of those provisions, and the potential that they might be misused for partisan purposes, their exclusion from the TSC Bill is to be welcomed.
14.
Article 52.4 allows a person to contest an election both as a candidate in an SMD and in the nationwide constituency on a party list. The Working Group Draft required candidates to choose one from of candidacy or the other. Under Article 98.10, if a candidate is elected in both an SMD and the nationwide constituency, then the candidate is elected in the SMD and the next candidate on the party list is elected in the nationwide constituency. This provision may be especially important in the 2012 parliamentary election, during which a number of parties may be unsure of passing the threshold. The rule allowing dual candidacies will allow party leaders to run in SMDs while still appearing on their party lists. It should be noted that a similar provision relating to the election of People's Deputies was found to be unconstitutional by the Constitutional Court of Ukraine (Decision № 1-рп/98 of 26 February 1998). In that case, the Constitutional Court concluded that that a provision allowing a candidate to contest an election both as a candidate in an SMD and in the nationwide constituency violated the principle of equal suffrage. It is quite possible that the provision in the TSC Bill would be struck down on the same basis.
15.
Article 53 of the TSC Bill requires that candidates be nominated by parties in accordance with party statutes, while the Working Group Draft required that nominations had to be made in accordance not only with the party statutes but also with the laws. In addition, Article 60 of the TSC Bill does not include a provision of Article 60 of the Working Group Draft that allowed the CEC to reject registration of MP candidates in case of violation of the laws during the candidates’ nomination. These changes will exclude the possibility of arbitrary rejection of candidate registrations on the basis of flaws in the nomination process. However, as neither the CEC nor the courts will have the power to assess whether the nominations were made in accordance with party statutes/laws, the above provisions in the TSC Bill may limit the options available to party members who feel that party procedures were not followed by party leadership during the nomination process.
16.
Article 55.3 of the TSC Bill requires candidates in SMDs to submit written election programs with their
registration documents. Civil society groups have long called for such a change as a way of fostering accountability of MPs to their constituencies, and allowing civil society, the media and voters to monitor the performance of deputies. Observers 17.
The TSC Bill follows the Working Group draft in elimination any differential treatment of observers from civil society organizations. While this is to be welcomed, it should also be noted that both the TSC Bill and the Working Group Draft appear to remove the capacity of any observers to file complaints with election commissions.
Campaign finance 18.
Unlike the Working Group Draft, the TSC Bill provides for state funding of election campaigns, including: a) Free printing and display of party and candidate information posters at Precinct Election Commissions (PECs) (Article 69); b) Television air time for electoral campaigns paid out of the state budget (Articles 72(4) to (9)); and c) Publication of election programs of political party and candidate election programs in print media paid for out of the state budget (Article 73). These provisions are similar to those that have applied in previous Ukrainian elections.
19.
As in previous drafts, the TSC Bill requires the CEC to make candidate declarations of property, income, and liabilities public on the CEC website. However, Article 57.2 of the TSC Bill includes a new provision that such disclosure should not include “confidential information,” which is not defined. While an exception for irrelevant personal details (personal contact information, for example) is justified, the law should define “confidential information” narrowly so that the purpose of public disclosure is not undermined.
20.
Article 49.7 follows wording in the Majority Draft that gives the CEC the mandate to review campaign financial reports submitted after the election and to report to refer any evidence of violations of the rules to the relevant law enforcement authorities. The Working Group Draft, like the existing law, merely required the CEC to receive the reports and post them on its website. This change is a positive step towards creation of a real system of financial disclosure and oversight, although the impact of the provision will depend on the extent to which the CEC is provided with the resources needed to fulfill its new mandate.
Regulation of Media 21.
Article 68 of the TSC Bill does not include provisions from the Working Group Draft that required print media to provide equal space to all candidates and parties contesting an election. This change seems sensible as the provision would have been difficult to apply in practice. However, it is not clear whether the remaining provisions will be sufficient to prevent well financed contestants from buying a dominant share of print media and excluding other voices.
22.
Article 74.19 exempts the media from liability for printing libelous material if they were unaware of the
court order establishing the libelous nature of the material. This change will help protect journalists who report on elections and who may not have access to all court decisions. Such protection will be particularly important as recently adopted changes to the Law on Access to Court Judgements may increase the number of secret judgements. Voter Lists 23.
Article 39.5 calls for preliminary voter’s lists to be sent by the state voter register management body directly to PEC’s, rather than to DECs for distribution to the PECS as in previous drafts and the current law. This approach seems sensible, as the DECs did nothing with the lists other than distribute them to the PECs. This change will reduce the workload on the DECs and allow more time for the State Voter Registry to allow the VR to be more developed.
24.
Article 40.3 makes it clear that voters have the right to review and correct the preliminary voters list, which was not clear in the Working Group draft. Review and correction of the voters list is an important means of ensuring transparency and fairness of elections.
Voting and Results 25.
Article 80 introduces new provisions relating to ballot design. Under Article 80.2, the ballots for the SMD elections are to be a different colour than the ballots for the nationwide constituency. Under Article 80.3 ballots are to be pre-printed with precinct numbers (under the Working Group Draft, the precinct numbers were to be written in by hand by the PEC member who issued the ballot). These provisions are practical and, in the case of the precinct numbers, useful as an anti-fraud measure. However, Article 82.10 still calls for a PEC member to hand write the precinct information onto the ballot. That Article should be updated to reflect the new approach.
26.
Article 85.13 of the TSC Bill does not include a requirement from Article 84 of the Working Group Draft that required that the preliminary data reported by each PEC include number of voters who received home voting ballots. Instead, only the total number of voters who received ballots will be reported. This change will reduce the transparency of the election, and might make it more difficult to identify precinct in which a suspiciously large number of voters are voting at home.
27.
Article 86 introduces a requirement that voters who want to be added to the list of those eligible to vote at home because of temporary incapacity provide a certificate from a medical facility confirming their incapacity. This is a positive step that will help reduce the potential that the home voting system will be abused.
28.
Under Article 97.5, if DEC results protocols do not reach CEC within the required amount of time, then the CEC may tabulate the results for that district itself based on the PEC protocols. However, further detail is needed to see how this will work in practice. It is not clear, for example, how will the PEC protocols will get to the CEC.
29. Article 97.1 of the TSC Bill does not contain the provision in Article 96.1 of the Working Group Draft which required the announcement of the data of the tabulation protocols by the head or the deputy head of the DEC and the entry of the time of the receipt of the DEC protocols in the minutes of the CEC meeting. It is
unclear why these provisions, which are an established part of Ukrainian practice that contribute to the transparency of the tabulation process, have been removed. 30. Under Article 97.1, the CEC must establish the election results no later than on the 15th day following the day of the election. The Working Group Draft required the election results to be established no later than on the 10th day after the voting day. This increase seems sensible as the establishment of the election results under the mixed system may require more time than under the old pure PR system. Election complaints 31.
Article 108.2(4) expands the range of people against whom complaints may be brought to include official observers, authorized representatives of parties and candidates, but only in respect of violations that occur during voting. This expansion is sensible as election commissions will typically be able to resolve election day complaints more quickly than the administrative court. However, it is unclear whether such complaints may be filed in respect of violations committed outside of the election precincts while voting is taking place. There also seems to be no compelling reason to restrict the ability of election commissions to hear such complaints not just during voting, but at any time during the election process.
32.
Article 109.1 extends the period for filing a complaint from 2 days after the event occurred, as proposed in the Working Group Draft, to 5 days. This increase will help ensure that there is sufficient time for complainants to gather the information and supporting documents needed to file more complicated complaints. It will also harmonize the timeline for filing a complaint with the 5 day limit for bringing a claim under the Code of Administrative Procedure.
33.
As mentioned above, the TSC Bill follows the Working Group Draft in apparently eliminating the right of observers to file complaints with election commissions. This is regrettable as election observers will sometimes be in a position to identify possible violations of the electoral rules. Allowing observers to file complaints in such cases will help ensure that such problems are brought to the attention of election commissions in a timely way.
34.
Under Article 111.2, complaints that are filed on the day proceeding the day of election, on the day of election or on the day following the day of election are to be reviewed and returned immediately if they are incomplete or lacking key information. The Working Group Draft required immediate return only of complaints filed the day following the day of election. This change will help ensure the timely adjudication of complaints by election commissions.
III. Summary The TSC is a revised version of the Working Group Draft that was reviewed earlier this year by IFES and the Venice Commission/OSCE/ODIHR, and many of the criticisms made by those organizations, as well as by Ukrainian civil society groups, about the older document are equally applicable to the new. At the same time, the TSC Bill includes it includes a number of changes that increase the transparency of electoral operations and reduce the potential for fraud or abuse. While there is still room for improvement, the TSC Bill is a significant improvement on the Working Group Draft. TSC Bill also avoids problematic provisions that were included in the Majority Draft. It is also important that the TSC Bill has been able to attract the support of a wide majority of members of the legislature, including
members from opposition parties. As both the Venice Commission and IFES have pointed out, consensus on changes to the electoral law is an important element in the legitimacy of the elections themselves.