DRI Legal News | Issue 4, by Dmytro Koval, Associate Professor in International Law
In 2015 the Speaker of Parliament and two MPs registered a draft Electoral Code with the Verkhovna Rada but until November 2017 it only collected dust. Only after a wave of protests and appeal for reforms, Parliament put the draft law to vote and it was adopted in the first reading with 226 votes out of 450, a narrow lead of one vote. However, the chances of the law being adopted appear to be limited. An absurd number of 4400 amendment proposals have been submitted, likely an attempt to derail a second reading of the code in parliament. Even if a second vote was scheduled, it is unlikely that the minimum 226 votes would be reached again, because many MPs would have less chances of re-election under the new vote. The only hope for the reform to pass is significant public pressure.
Why a new Electoral Code?
The long awaited electoral reform in Ukraine seems to approach its dénouement. The ‘Coalition Agreement’ concluded by the government parties after the last Parliamentary elections included a commitment to electoral reform, which was supposed to be adopted in 2015[1]. The speaker of Parliament Andriy Parubiy, and the MPs Oleksandr Chernenko and Leonid Yemets submitted a draft Electoral Code on 2 October 2015, that in line with the coalition promises and key demands of the Revolution of Dignity proposes to change the current mixed electoral system.
It took over two years and a wave of protests to put the Electoral Code to its first reading on 7 November when it garnered the minimum of 226 votes. It should be voted in the second reading once the 4400 amendments will be processed by the legal policy committee of Verkhovna Rada. Some believe that it would be in late April-May 2018[2]. If adopted, the Electoral Code would significantly change the legislation related to national and local elections. The most significant changes are related to the elections of the Ukrainian Parliament. The new code includes a new electoral system. Currently MPs are elected based on a mixed majoritarian - proportional electoral system with closed party list. The draft proposes a purely proportional system based on 27 regional constituencies and an open list (voters can mark a preference for one specific candidate).
The main changes of the Electoral Code
The new Electoral Code proposes a lot of changes to the electoral system in Ukraine. Many analysts expect that large pan-Ukrainian parties and those with developed regional structures will benefit most from the change of the electoral rules[3]. At the same time, it is noteworthy that these parties did well under the current system too, based on majoritarian constituencies[4]. MPs may see the new law as reducing their chances of re-election.
The draft code does not include provision about lists of independent candidates, only political parties will be able to endorse candidates for elections. This provision is not in line with the 1990 OSCE Copenhagen Document[5].
Even though only political parties can nominate candidates, analysts expect that the open list system would force parties to be more transparent and more sensitive to public opinion when putting up candidate lists.[6]
Many of the Ukrainian civil society representatives support adoption of the new code[7]. They believe that an open-list proportional system will reduce problems of earlier elections, in particular the role of big money. Besides the change of the electoral system, the code would introduce several other significant novelties. It would provide measures which may lead to greater gender equality and representation in the Parliament, including a 40% gender quota and a requirement that at least two persons amongst every five candidates on the national and regional lists must be of the opposite sex[8].
Furthermore, the code would allow to allocate all the 450 seats in Verkhovna Rada to the winners of elections, compared to the present situation where only 423 places are filled due to the inability of Ukraine to organise elections in the majoritarian constituencies in Crimea and parts of Donbass.[9] Donetsk and Luhansk regional constituencies will delegate candidates, even if only one polling station opens on election day, it will be enough to consider the elections in the constituency as valid. A similar principle will be applicable to the Crimea which is included in the Kherson regional constituency[10].
What are the alternatives to the proposed code?
The MP Valeriy Pysarenko of the political party “Vidrodzhennia”[11] submitted another draft, which only received 102 votes in the first reading in November 2017.
Pysarenko’s draft largely safeguards the status quo and the existing challenges. According to his proposal, the parties that receive more than three percent in the elections will get into the parliament. Pysarenko proposes to create 450 constituencies in Ukraine, and parties’ nominees that receive the largest support in their constituencies will get seat as well a seat in the parliament. In fact, the project aims to preserve the parties’ monopoly on the selection of the candidates for each constituency.
It is worth noting that in October 2017 parliament voted down three other draft election codes. One of them envisaged a proportional electoral system with closed lists[12], while the other two included an open list system[13]. Since none of these three laws was even sent back for reworking to their authors, the proposals will not be considered by the Verkhovna Rada.
Is the new Electoral Code alive or dead?
Most experts and MPs do not believe that the Electoral Code will pass as it is in the second reading[14]. It is believed that many MPs who voted for it in the first reading would not support the code further[15], as it may weaken their chances for re-election.
The record number of amendments (4400 proposals) registered to the Code may be another indication of low chances of adoption, as they create a pretext to delay the second reading indefinitely.[16].
Nevertheless, civil society’s pressure can still influence the considerations of MPs, especially if international organisations join the chorus. As in most of Ukraine’s reforms in the last years, all will depend on the power of public pressure.
MPs votes for the new electoral code
Photo-courtesy: Sandro Weltin/©Council of Europe
[1] For details see the DRI Briefing paper 55 <http://democracy-reporting.org/dri_publications/briefing-paper-55-update-on-legislative-initiatives-and-debates-in-ukraine/>
[2] “It became known when the Electoral Code would be ready for the second reading”. Slovo I dilo (in Ukrainian) <https://www.slovoidilo.ua/2018/01/22/novyna/polityka/stalo-vidomo-koly-bude-hotovyj-druhoho-chytannya-vyborchyj-kodeks>
[3] See the media coverage of the voting (in Ukrainian) <https://prm.ua/pitannya-politichnoyi-vidpovidalnosti-deputati-obgovorili-na-pryamomu-perspektivu-priynyattya-viborchogo-kodeksu/>
[4] See the analytics on the Election Code (in Ukrainian) <http://tyzhden.ua/Society/203060>
[5] Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE <http://www.osce.org/odihr/elections/14304?download=true>; See also the DRI Briefing paper 55 <http://democracy-reporting.org/dri_publications/briefing-paper-55-update-on-legislative-initiatives-and-debates-in-ukraine/> P. 4
[6] See the media coverage of the voting (in Ukrainian) <https://prm.ua/pitannya-politichnoyi-vidpovidalnosti-deputati-obgovorili-na-pryamomu-perspektivu-priynyattya-viborchogo-kodeksu/>
[7] See for instance coverage of the issue (In Ukrainian) http://mymedia.org.ua/articles/shmzh/viborchiy_kodeks_potr_ben_ne_t_lki_zaradi_ugodi_pro_asoc_ac_yu.html see also the official site of the “Opora” (In Ukrainian) <https://www.oporaua.org/vybory/45110-udoskonalennia-systemy-vidkryti-dani-hendernyi-balans-reforma-tsvk-vyborchi-prava-hromadian-ta-zaborona-ahitatsii-na-telebachenni-u-vr-zareiestruvaly-178-popravok-do-vyborchoho-kodeksu>
[8] See the text of the law (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=56671> Art. 341 (6).
[9] See the text of the law (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=56671> Art. 375, 376.
[10] See the media coverage of the voting (in Ukrainian) <http://kordon.org.ua/vibortcha-revolyutsya-shto-take-golosuvannya-za-vdkritimi-spiskami-yak-tse-zmenshity-koruptsyu.html>
[11] See the text of the law (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=56490>
[12] See the text of the draft law (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=52481>
[13] See the text of the draft laws (in Ukrainian) <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=52598>, <http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=52880>
[14] See the media coverage of the voting (in Ukrainian) <https://prm.ua/pitannya-politichnoyi-vidpovidalnosti-deputati-obgovorili-na-pryamomu-perspektivu-priynyattya-viborchogo-kodeksu/>; <http://gordonua.com/ukr/news/politics/-rada-prijnjala-v-pershomu-chitanni-proekt-viborchogo-kodeksu-ukrajini-216083.html>
[15] See the media coverage of the voting (in Ukrainian) <https://prm.ua/pitannya-politichnoyi-vidpovidalnosti-deputati-obgovorili-na-pryamomu-perspektivu-priynyattya-viborchogo-kodeksu/>
[16] See the examples of the application of similar strategy (in Ukrainian) <https://politeka.net/ua/reading/525274-meditsinskaya-reforma-o-dengah-zakrytii-bolnits-i-gosudarstvennom-finansirovanii/>