Editor’s Note: The Kyiv Post tracks the progress made by Ukraine’s post-EuroMaidan 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 the main issues in focus from Nov. 3-10.
Summary
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 EuroMaidan 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.
