Bohdan A. Futey
U.S. Court of Federal Claims
March 7th, 2012
UKRAINE AT THE CROSSROADS
NEW ELECTION LAW AND THE
2012 PARLIAMENTARY ELECTIONS
University of Ottawa, Canada
March 7-8, 2012
Comments by Judge Bohdan A. Futey
This is the fourth time that the election law is undergoing change in Ukraine since its independence in 1991. At first the law provided for election of Deputies to Parliament by district (Majoritarian); then mixed one-half majoritarian and one-half by party lists (proportional). Then party lists only, and now back to a mixed system of elections. The new law was adopted November 17, 2011 and signed by the President in December of 2011. It provides for 450 members in parliament: 225 elected by party lists and 225 in single mandate districts. The vote in Parliament on this law was 366 voted for the law, 6 against, and 5 abstained.
During the draft period, the Venice Commission and IFES experts cautioned against such frequent changes of the electoral system.
Lack of transparency provoked NGO’s like NDI, and later IRI to withdraw from the President’s draft law working group. (Groups of experts are invited to participate to give advice, but then no one listens to them and it looks like they have been participating.)
The elimination of Former Prime Minister Tymoshenko and now Minister Lutsenko from the 2012 elections has been construed by many, here and in Europe, to dismiss the upcoming parliamentary elections as undemocratic. Time will only tell.
The law contains the same problem as previously concerning party lists. Only the first five are known to the people. The rest of the candidates are unknown. Elections in single mandate districts now could be a problem because of recent discussions to change this provision in the law. The argument goes, if a candidate runs on a party list, he or she cannot run in a district or vice versa. (See Constitutional Court decision 1998). The Chairman of the Central Election Commission (CEC) Mr. Shapoval, who was on the Constitutional Court at the time of the decision, however, has recently made some comments that if the 1998 decision is not followed, the election could be invalidated. According to some deputies there are two requests before the Constitutional Court to determine this matter prior to the elections. Pending on the Court’s decision, the election legislation may be amended.
If the Court, however, does not act, there are two possible scenarios: The Party of Regions does not get the desired number of deputies in Parliament (a majority), it could then ask the Constitutional Court to review the legality of the election based on the 1998 decision of the Constitutional Court. I am inclined to think, based on recent decisions of that Court, that it will agree with the Party of Regions and new elections will have to take place. The other view – the Party of Regions gets the majority of deputies in Parliament, the opposition will then file a case with the Constitutional Court based on the 1998 decision. The Constitutional Court could then decide that the 1998 decision pertains to a different election law and not to the present law.
Also, it is the responsibility of the Central Election Commission (CEC) to draw the boundaries for the single mandate district. Before the CEC can decide on this matter, it must make a decision as to how many of the 225 single mandate district seats will be allocated to each administrative region. Given that the law allows the number of voters in any district to vary by 12%, it is possible for these seats to be allocated by a formula that provides advantages to some administrative regions over others. So we will have to wait and see how this will be accomplished in the very near future.
Some analysts claim that single mandate districts in past elections, including the recent 2010 local elections are vulnerable to election manipulation where vote buying is rampant and administrative government resources are used to favor particular candidates, including court decisions. Therefore, the presence of the international observers during the 2012 elections should not be under estimated.
- Observers from non-governmental organizations can be registered on the same terms as observers from political parties and candidates.
- Official observers from other states and international organizations are registered by the CEC and have broad rights in observing the process of elections.
- Two or more international observer groups wishing to coordinate their activities must inform the CEC, but they do not need to seek prior approval of the CEC.
- Official observers can file complaints with election commissions.
With the majority in Parliament, the deputies of the Party of Regions will be able to amend the Constitution and extend their power, the power of the Donetsk clan, for a long time. This brings in the issue of how should the Constitution be amended. See provision of the Constitution adopted on June 28, 1996. Articles 154-159 clearly provide for any changes to take place. Some work to amend the Constitution has already commenced by the Commission headed by the former President Kravchuk. (Amending Constitution Must Be Lawful, Kyiv Post).
Furthermore, the new election law does not decide the problem of dividing jurisdiction over electoral disputes between election commissions and the courts. (Administrative Courts)
It shall be noted that the provisions in the legislation do not completely eliminate risks of duplication of proceedings and risks of inconsistent decisions as it may happen that somewhat related matters will be still heard simultaneously by relevant commission and administrative court. There is still a possibility that complainants will strategically choose the venue where to submit their complaint or engage in so-called “forum-shopping”. As stated by the Venice Commission, neither the appellants nor the authorities should be able to choose the appeal body. Although it is necessary that election commissions preserve the power to decide certain election disputes, the new law does not decide the problem of dividing jurisdiction over electoral disputes between election commissions and the courts. On the contrary, it has to be clear for all the participants and other subjects of the electoral process where a particular complaint is to be filed.
The final word for election disputes resolution will be in the hands of the specialized Administrative Court with the Higher Administrative Court at the top. The adoption in July 2010 of the new law on the Judiciary and the status of Judges, however, highlights a weakened, overly political judiciary. That law contemplates a system in which the President can liquidate courts, in which the Supreme Court has lost power to lower courts that decide whether or not to refer cases to the Supreme Court, in which the High Council of Justice exercises a politicized role, and in which the Constitution’s guarantee of a right to a jury trial continues to be ignored. The weakening of the judiciary and its growing subservience to the executive branch reduce the protections that the Constitution promises to all Ukrainians.
In the midst of these violations, one must ask where is Ukraine’s legal community? Where are the lawyers and jurists in Ukraine to stand up and be counted in the ongoing battle to protect the rule of law in Ukraine. In the United States, an array of non-governmental organizations, such as the American Bar Association, help to ensure that proper procedures are followed. Where are these neutral organizations in Ukraine? Furthermore, Ukraine’s attempts to integrate itself into the larger European community are extremely hampered by the taint of illegality.
Additional attention should be given to the attempts by the party in power to weaken the opposition. Actually it is diminished already because of lack of unity (no unified front). But an agreement was reached among several opposition parties on January 22, 2012. Mr. Yatseniuk called for parties that have a rating of at least 5% to run in these elections. Mr. Klitchko also argued that district candidates should be selected by rating or popularity and not by assignment of parties. Furthermore, the opposition parties formed the “Committee to Oppose Dictatorship” to coordinate the elections.
The law establishes 5% election threshold, an increase of 2% from the previous law. This change adversely affects the chances of some smaller parties to be elected to Parliament unless united.
The law provides for the manner of voting outside the polling places. A voter must submit an application to vote outside the polling place along with a certificate of health. The law establishes the manner of naming a candidate by party or citizen. Election campaigning to start 90 days before election day; last Sunday in October 2012. The provision to vote against all has been eliminated. (Deputy Miroshnechenko explained that this result of the vote is the lesser of two evils. Mr. Yatseniuk called it a positive step, especially concerning some procedural aspects.) Also, the law prohibits the participation of blocks of parties in the election.
In addition, majoritarian candidates will have no access to the National Register of Voters. Only parties have that access. Self-nominated candidates will be at a disadvantage.
Lately, there has been a lot of talk concerning possible sanctions by the European Union. If the election is determined to be fraudulent and in violation of international standards, what can be expected? Since 2000, sanctions against Ukraine have been mentioned by the Parliamentary Assembly of the Council of Europe, but never decided or implemented. In view of the trials against the opposition leaders, the negative publicity, and if the elections are declared to be fraudulent, will definite sanctions be implemented? It is still questionable. “GE Strategy” in analyzing this problem believes that the worst sanctions that could be implemented against Ukraine would be the suspension of working activities in the various committees of the Parliamentary Assembly by the Ukrainian delegation. This will affect just the activities of the delegation and not Ukraine’s membership in the Council of Europe.
With these recent events, Ukraine finds itself at the brink, at the crossroads, as this conference indicates, with its image diminished. Ukraine must ask itself, therefore, what exactly the Constitution means to the country. If the Constitution is what it says it is – “the highest legal force” of the country and the guarantor of a democratic state – then its words must be respected, its principles kept. If, however, the Constitution is something that can be abandoned when inconvenient, it is nothing more than words on paper and will do little to ensure the freedoms for which Ukrainians have fought. Without those freedoms, Ukraine’s future as a democratic nation, based on the rule of law, is imperiled.
I remain, nevertheless, confident in Ukraine and the Ukrainian people.
Bohdan A. Futey is a Judge on the United States Court of Federal Claims in Washington, DC, appointed by President Reagan in May 1987. Judge Futey has been active in various Rule of Law and Democratization Programs in Ukraine since 1991. He has participated in judicial exchange programs, seminars, and workshops and has been a consultant to the working group on Ukraine’s Constitution and Ukrainian Parliament. He also served as an official observer during the Parliamentary elections in 1994, 1998, 2002, and 2006, and Presidential elections in 1994, 1999, 2004, and 2010, and conducted briefings on Ukraine’s election Law and guidelines for international observers.