There is now a chance that the political deadlock around the law on parliamentary election will be solved. Parliament earlier this month found rare consensus to vote to create a temporary special commission to draft a new law on elections.
The Venice Commission and other international experts have repeatedly told Ukraine that the rules for elections have to be created openly, and based on public debate, and have wide political support to guarantee public trust in the election and its result.
As a presidential adviser and a member of the Venice Commission, I have been making this point for the last year while the law was being drafted.
Parliament will make a final decision on the election system, and the president agrees with this point. Therefore, the fact that several competing drafts have been submitted is also positive.
The 2012 parliamentary election can potentially be based on one of three systems: a new mixed system; a proportional system based on the current election legislation as recommended by the International Foundation for Electoral Systems; and the proportional system based on open regional lists as recommended by a resolution of the Parliamentary Assembly of the Council of Europe, the Venice Commission and the Organization for Security and Cooperation in Europe’s election body, ODIHR.
The latter is clearly the best option for Ukraine. This system gives us a chance to minimize the flaws of proportional representation with closed party lists which Ukraine had in 2006 and 2007, and leave behind the flaws of the majority system that were evident in the 1998 and 2002 elections and the 2010 local elections.
It will contribute to structuring political forces (and later parliament itself), will personalize the choice, and allow for the most adequate representation. We can even say that there will be less corruption during the election.
Understandably, like any new idea, this one is accepted with difficulties both in society and among politicians. Yet a national expert poll conducted by the Civic Consortium of Election Initiatives has shown that it has the greatest number of supporters among election experts.
However, the political preferences are different. The majority of parliament favors a mixed election system, where half of parliament is elected in majority constituencies, and half through proportional representation. At the same time, the opposition insists on closed lists.
I have to note that the elections of 2006 and 2007 were recognized as democratic not thanks to, but despite the use of this system. Its flaws have been consistently criticized both at home and abroad.
The parliamentary majority’s draft law has the greatest chance to become the basis of a new law. If that turns out to be the case, then parliament’s main task is a thorough analysis and improvement of the procedural part of the draft that would take into account the conclusions if the Venice Commission and IFES, as well as our own experience.
What not to do
In its better times the Constitutional Court set the principles of good elections. Hence the opposition’s drafts, which contain deliberately unconstitutional proposals, are unacceptable.
This includes the right of candidates to run in both a majority constituency and on the party list; deprivation of voters living abroad to elect deputies in majority constituencies; establishing different deadlines for nomination and registration of candidates in the single mandate and majority constituencies. The Constitutional Court ruled such practices to be illegal in 1998.
Also, Ukraine’s Constitution guarantees free elections, therefore none of the drafts should contain clauses to the contrary. Therefore the proposal in the majority’s draft to set zero financing for election campaign, in my opinion, significantly reduces chances that election will be free. Reducing the levels of protection of ballots and opportunities to challenge the results can also lead to violations.
It’s also inadmissible to leave some electoral issues and procedures unregulated by the new law, proposing instead to either draft other laws to supplement it or to leave it up to the Central Election Commission. This primarily concerns the formation of election districts and polling stations.
It’s also unjustified (to say the least) to make a law on election while conducting the 2012 election on the basis of transitional clauses of the same law – the majority’s draft suggests such a scheme for formation of election commissions.
The new election law should not regress from the achieved level of legislative regulation of the election process and the generally accepted practice. It should instead be a step forward toward international standards.
In this context I would like to point out a number of European tendencies in election legislation. One of these issues is guarantees for women to stand in the election, which are usually achieved by regulating the quota to increase their presence in party lists.
There are studies that indicate that failing to stimulate women’s representation in parliament will cause a slide in their number from the current 8.2 percent to around 6 percent if a mixed election system is used.
I would also like to stress that as many remarks and recommendations made by the Venice Commission and IFES as possible should be taken into account during the upgrade of the draft.
Ukraine’s president has pointed out that he will personally take this issue under his control, and I hope that the parliament treats these recommendations with full responsibility.
Both the quality of the new election law and the assessment of the election by the international community are dependent on that. We need to do our best to make sure the next parliamentary election is transparent and legitimate, and are accepted by the Ukrainian society and the international community.
At the moment the process of approval and the quality of this law are one of the issues in closing down the association agreement between Ukraine and the European Union. Politicians have to rise above personal interests and take steps towards the nation’s European dream.
Maryna Stavniychuk is an adviser to President Viktor Yanukovych and head of the office for modernization of law and constitution. She is also a member of the Venice Commission.
