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Preliminary Comments on the Draft Parliamentary Election Law

Submitted to the Verkhovna Rada on October 10, 2011

IFES Ukraine, 14/10/2011

I. Background

On October 10, 2011, a revised draft Law On the Election of People’s Deputies of Ukraine was registered with the Verkhovna Rada under registration number 9265-1 (the “revised draft”). The revised draft is based largely on the draft law developed by the Presidential Working Group on Reform of Election Legislation under the leadership of Minister of Justice Lavrynovych that was recently the subject of reviews by IFES and the Venice Commission/OSCE/ODHIR (the “previous draft”).

Interestingly, the revised draft was registered not by the President, as one might have expected given that the Working Group was created by Presidential Order, but by a group pro-government members of parliament.

This document identifies the changes in the revised draft compared to the previous draft and gives some preliminary comments on their implications. It was prepared quickly without the benefit of a quality translation and so cannot be considered comprehensive.

II. Major Changes in the Revised Draft

The following are the changes that we have identified as most important in the revised draft. Some of the changes follow on from the discussions that took place at the meeting of the Presidential Working Group on September 27, 2011. Others have not previously been discussed publically to our knowledge.

1. Articles 2.10 and 3.2 of the revised draft, among others, have been amended to eliminate the right of voters abroad to participate in elections in a single mandate district. Such voters will be able to vote only in the nationwide proportional representation constituency. Elections in precincts abroad will be conducted by PEC’s appointed by and operating under the supervision of the CEC. This approach has the advantage of avoiding the problems associated with assigning voters abroad to a single member district, including:

a) assignment of the roughly 400,000 voters abroad to a single member district would create a constituency with more than twice as many voters as any other, which would raise concern for equality of the vote; and

b) selection of a single member district would be difficult politically. The CEC could be accused of bias in its selection.

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While the approach taken in the revised draft is a rational response to these problems, it may be open to challenge on constitutional grounds because it treats gives voters different levels of participation. This issue was discussed in the September 27 working group meeting but no consensus was reached. At the conclusion of the discussion, Minister Lavrynovych said that he would put the question to the President.

2. Article 18.2 of the previous draft has been deleted and replaced with the following provision in the revised draft:

18.2 Single-seat constituencies are created within the boundaries of oblasts, Administrative Region of Crimea, Kyiv and Sevastopol with approximately equal numbers of voters. Boundaries of a single-seat constituency should be contiguous.

The introduction of requirements that the boundaries for single member districts follow existing administrative boundaries and be contiguous are positive changes that were recommended by IFES and the Venice Commission. The rule that districts should be of “approximately equal number of votes” is an improvement from the 10% standard in the previous draft in that it would seem to reduce the scope for inequality of voting power between districts. However, it is unclear how much deviation between districts will be allowed under this new wording.

3. Article 18.3 of the revised draft changes the deadline by which the CEC must publish district boundaries from 90 days before the election to 110 days. Both IFES and the VC criticized the 90 day rule in the previous draft, which left insufficient time for candidates to plan their campaigns or for legal challenges to the proposed districts to be brought. While 110 days is an improvement, it would be preferable for the drawing and updating of district boundaries to be decoupled from the electoral cycle so that the chances of politicization are minimized and candidates and the public are given as much advance notice as possible.

4. The revised draft includes a new Article 7.3 in the Transitional and Final Provisions that requires the CEC to make a decision on boundaries of single member districts based on a joint proposal from the State Executive Authorities (local executive bodies, the heads of which are appointed by the President and Government) and the local self-government bodies (elected). The joint proposals are to be delivered to the CEC no later than 120 days before the election.

While the provision does not specify the degree to which the CEC is to be bound by the joint proposal, or the way in which the local bodies are to develop their proposals, this provision introduces an unwelcome political element to a districting process. Especially in a context of low trust between political actors, districting should be principled, non-partisan and transparent. This new provision appears to runs counter to those values. It is also worth noting that, since the 2010 local elections, local self-government bodies have been dominated by the Party of Regions and its allies in much of the country. To our knowledge, this provision has never been raised publically.

5. The Transitional and Final Provisions in the revised draft include new rules relating to the formation of election commissions for the 2012 elections. As in the previous draft, each parliamentary faction will be entitled to an equal number of commission members, regardless of the number of parties in the faction. In the current convocation of the Verkhovna Rada, the Party of Regions and the Communist Party each comprise a single faction. Three other factions are comprised of groupings of parties that ran together as a bloc in the 2007 elections. However, instead of 1 commissioner, as proposed in the previous draft law, each faction will now nominate 3 commissioners.

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This change may have been made in response to the concerns by the (mostly opposition) parties that are part of factions composed of more than one party, which have expressed concerns that a single commissioner would not be able to represent their interests adequately. While the proposed change will provide additional members to such parties, it will not completely resolve the challenges that multi-party factions will face in selecting their nominees. It will also mean that independent candidates and parties not currently represented in the legislature will nominate comparatively few election commissioners. In most cases, such parties and candidates will be able to nominate no more than 3 commission members. Finally, the new rule ensures that election commissions will almost always be comprised of the maximum number of members (18). As IFES and the Venice Commission have pointed out, this number far exceeds what is operationally necessary.

6. A new provision has been added at Article 61.4.6 that allows the election commission that registered a candidate to cancel the registration of that candidate if he or she repeatedly committed acts for which he has already been formally warned, or if he or she receives two formal warnings. A similar provision is included in the current parliamentary election law, but was removed in the previous draft. It is not clear why this provision has been included in the revised draft. It was not discussed at the working group meeting on September 27.

Especially as regards warnings for violations of campaigning provisions, which need not be based on any finding of wrongdoing by a court, this provision is dangerously vague. It does not include procedural safeguards and evidentiary standards that one would expect to see in a provision that allows the imposition of such a serious sanction. Election commissions will have great latitude in determining whether violations have occurred and whether registrations should be cancelled. Furthermore, unlike the corresponding provision in the current law, which allows registrations to be cancelled by the CEC only, the revised draft contemplates cancelation of the registrations of single-member district candidates by DECs, the members of which will often be relatively less experienced and professional than their counterparts on the CEC. Given these concerns, and the experience of improper denial of candidate registrations during the 2010 local elections, the inclusion of this provision in the revised draft is a matter of great concern.

7. Article 107.1 in the previous draft has been changed to allow official observers from parties and candidates - but not NGO observers - to file complaints. At the same time, the revised draft has removed the ability of NGO observers to submit a formal notice of violation to an election commission under Article 77.9. In effect, these two changes return the draft to the approach in the current parliamentary election law, which gives party observers greater rights than NGO observers. This change was not discussed at the Working Group meeting on September 27. In its report, IFES recommended that all observers be given the right to file complaints.

8. Article 49.7 of the revised draft gives the CEC the authority to review and analyze financial reports submitted by parties and candidates that participate in an election and to refer any evidence of violations of the rules to the relevant law enforcement authorities. The previous draft simply 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 given resources to fulfill its new mandate. The CEC may also require technical assistance to put in place necessary procedures and develop the technical capacity required to review financial reports.

9. The revised draft changes a number of provisions relating to the Declarations of Property, Income, expenses and Financial Liabilities that candidates are required to submit under Article 57. Further study is needed to determine the effect of these changes.

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10. The revised draft makes a number of changes to the procedure for public review and correction of the voters list. It is unclear why these changes are being made or how they will impact formation of the voter list. Further research is needed on this point.

11. The revised draft makes a number of changes to the rules governing coverage of elections by media. At first glance, these changes seem to simplify and clarify the obligations of media, especially with respect to general obligations to obligations to be unbiased and stick to the facts. However, further research is needed to assess what, if any, practical impact these changes will have.

III. Summary Comments

The revised draft includes a number of changes that are intended to respond to issues raised by the Venice

Commission and IFES, including some significant positive changes (CEC to review financial statements, clarification of participation of voters abroad in single member district elections). However, the majority of the concerns raised by the International Community, including some of the more important ones, such as clear rules on districting, and clarification of the rules governing temporary changes to place of voting, have not been addressed.

More significantly, some important changes have been introduced without advance warning or discussion. Of particular concern are the provisions giving local authorities a role in drawing electoral boundary districts and the reintroduction of the rule allowing election commissions to cancel candidate registrations. For the reasons discussed above, both of those changes are highly problematic.

The International Foundation for Electoral Systems (IFES) is the global leader in election assistance and democracy promotion. IFES promotes democratic stability by providing technical assistance and applying field-based research to the electoral cycle in countries around the world to enhance citizen participation and strengthen civil societies, governance and transparency. The Ukrainian language version of this document was prepared with the assistance of Denys Kovryzhenko of the Agency for Legislative Initiatives.

Please direct any questions regarding this document to David Ennis (dennis@ifes.org) or Tanya Bibik (tbibk@ifes.org) or the IFES Ukraine Electoral Law Reform Program.