Ukraine

Election Code changes: Need to prioritize amendments on local elections and have parliamentary expert dialogue

The Verkhovna Rada of Ukraine (VRU) Committee on Organization of State Government, Regional Development, Local Self-Government and Urban Planning has returned to the improvement of the Election Code before 2020 regular local elections.

On May 12, the Subcommittee on Elections and Referendums held an online discussion of critical changes to the Election Code, drafted by MPs. The Parliament didn't manage to eliminate all the drawbacks and gaps in the Election Code procedures when it was considered before. To do this, MPs of Ukraine should discuss it and take immediate decisions. Thus, we welcome the start of dialog on the Election Code yet before MPs are back to regular work after quarantine. OPORA believes that Ukrainian Parliament should pass final decisions on amendments to the Election Code by the end of May-beginning of June, and secure good preparation of state bodies, political parties and potential candidates to local elections. The state should also guarantee readiness for elections by allocating realistic financing for the organization and conduct of voting.

Ukrainian MPs are currently discussing draft comprehensive amendments to the Election Code, which not only cover local elections, but also change the regulation of national elections, activities of the CEC and the State Register of Voters, and the withdrawal of local council members. As the VRU committee is aimed to find an integrated approach to elimination of drawbacks in electoral legislation, one should consider the need to give MPs and groups need enough time to discuss and improve the suggested amendments. While the legislation on local elections is currently a top priority, it's necessary to avoid making unprepared and undiscussed amendments to procedures of national elections. Thus, MPs should set priority to the stages of electoral reform.

A big part of amendments to the Election Code, elaborated by MPs of Ukraine from the competent VRU committee, is aimed at elimination of drawbacks and gaps in the legislation. In particular, the competent VRU committee took into account the progressive positions of the CEC concerning unification and simplification of electoral procedures, making clear requirements for the completion of electoral documents and the vote count process, some aspects in formation and activities of election commissions, submission of documents by candidates etc. There was an attempt to clearly regulate the simultaneous nomination of candidates in local elections. In general, MPs and the CEC have made significant efforts to eliminate gaps and unbalanced provisions in the Election Code and improve the quality of its procedures.

However, previous suggestions contain questionable or even hazardous regulations, which must be discussed by a wide circle of experts and MPs. According to OPORA, parliamentary factions and groups should promptly decide on top-priority amendments to the Code and avoid potential risks to democratic elections in an open and transparent manner and with the involvement of stakeholders.

Initiatives involving the improvement of the Election Code's section on local elections are the most resonant in regard to politics. It the view of adherence to the standards of democratic elections, a number of the developed amendments are problematic.

OPORA believes that the suggested amendments not only fail to eliminate obstacles to a complete realisation of passive electoral rights by Ukrainian citizens, but also create new challenges for democratic elections and their compliance with the election process.

Obstacles to the exercise of passive suffrage by citizens of Ukraine

- In addition to an already existing problem related to the lack of independent nomination of council members in big cities (with 90 thousand and more voters), the draft amendment bans independent nomination of council members in even more cities (with 15 thousand and more voters). Such suggested amendment to the Election Code will Ukrainian legislation even more contradictory to the OSCE Copenhagen Document, which calls the states to guarantee independent nomination of candidates in all local elections. This opportunity can be provided, in particular, by nomination of independent candidates in lists.

- The draft amendments to the Elections Code suggests to introduce a deposit in amount of two salaries per each 10 thousand of voters for cities holding elections under the proportional system. The current version of the Code requires parties to make a deposit in amount of 4 salaries per each 10 thousand of voters. Although the cash deposit for local party cells has been decreased in two times, it's still excessive. In large cities, the size of the cash deposit will de facto limit the ability of local political party cells to nominate candidates due to the lack of funds and, consequently, what will also affect a political competition.

- It was suggested to introduce a cash deposit for independent candidates and local party cells, which will participate in election of members to village, settlement and city councils (having less than 15 thousand voters) under the majoritarian election system in multi-member districts.

The deposit for independent candidates will be 1.5 minimum wages, while a party cell will have to make a deposit in amount of two minimum wages per each candidate in multi-mandate district. The cash deposit in previous local elections in Ukraine was established only for mayoral candidates and local party cells in elections under the proportional system. We believe that it is reasonable to increase or introduce a cash deposit for the lowest-level communities only if there are real hazards for the election process related to abuse of passive suffrage. 

The experience of local elections in small communities, on the other hand, shows low motivation of citizens to participate in elections. Thus, the introduction of a cash deposit in small communities is not justified. We would like to emphasise that the draft amendments suggest to decrease the number of members in city councils in small communities (minimum 22 councillors for the smallest communities). Combined with a cash deposit, this regulation burdens local party cells with financially to ensure their participation in elections at the basic level of local self-government.

During the public discussion, members of the Committee on Organization of State Government, Regional Development, Local Self-Government and Urban Planning said they were ready to significantly reduce the cash deposit, but its feasibility at the level of villages, settlements and small towns is still in question. For example, even a small cash deposit may become excessive for local party cells, which will have to pay it for many candidates. Independent candidates, for their part, face difficulties in logistics when making cash deposit, as the motivation to vote is low.

Another challenge for realisation of passive suffrage is a widened list of grounds for taking a cash deposit of candidate or party to the State Budget of Ukraine.

The amendments suggest that a cash deposit is not returned to a citizen in case the terms of its submission are violated or the amount of payment is incomplete. Thus, according to the suggested wording, new sanction may include not only candidates who violate the procedure intentionally, but also erroneous transactions. The innovation should be at least very detailed to avoid excessive or unjustified penalties. Besides that, OPORA calls on the Verkhovna Rada of Ukraine to legally guarantee that cash deposit is returned not only to elected parties and candidates, but also to electoral subjects who receive a certain percentage of votes.

Violation of democratic standards for the formation and functioning of election administration bodies in local elections

Another proposition in draft amendments is the right of local party cells who conclude a cooperation contract with a group of MPs to submit candidates TECs and PECs that are mandatory for inclusion. In our opinion, this proposal violates the standards of commission formation, and may facilitate unfair political technologies and political corruption.

Democratic election standards provide some benefits to parliamentary parties in commission formation to make their functioning more stable. This practice is based on the assumption that parliamentary parties are more stable and capable, with the political weight of the parties being a criterion for selecting proposals from a large number of political forces. However, we emphasize that it's about participation of parties in commission formation, but not group of MPs. A group of MPs is an association of individual MPs, and it's not a faction of a party that has won the previous race, and can participate in all the next election campaigns. Giving unstable, non-partisan and ideologically unformed parliamentary groups the right to influence the formation of election commissions destroys the logic of the election administration process and brings a threat of mass political and corruption abuses. If the initiative is realised, the number of vacant seats in election commissions will decrease and the rights of non-parliamentary parties in the process of their formation will be limited. Besides that, the legitimacy of legal form of such an agreement and the legal consequences of its implementation will be in question.

Weakening intra-party democracy in nomination of candidates and formation of election commissions

Initiators of amendments to the Election Code suggested to restore a procedure of candidate approval for city heads and electoral lists, nominated by local cells by party leaders. Without such an approval, the electoral list and candidates cannot be registered.

Current wording of the Code doesn't require the approval of nominated candidates by governing bodies of parties, but amendments suggest to restore the procedures of 2015 electoral legislation. OPORA believes that the suggested regulation will affect inter-party democracy practices that are still weak, and create extra hazards in a form of a centralised political corruption while all candidates for important positions in local self-government bodies shall be approved.

Besides approval of candidates on the central level, it was suggested to give oblast party cells the right to nominate candidates in local elections in cities, what will demotivate parties to create local cells.

They can obtain this right if there are no registered local party organizations in the community. OPORA is convinced that creation of legislative preconditions for the formation of centralised and non-democratic political parties is inexpedient while some parties are still being formed.

Oblast party cells may also receive the right to submit candidates for members of TECs and PECs instead of city and rain organisation, if the latter are not present in party structure.

This regulation creates additional legal preconditions for internal party centralisation and no need for creation and development of local cells.

Changes to the Electoral Code provide for having the regular local elections only for local self-government bodies elected at the previous elections. Presently, the scheduled elections are conducted simultaneously for all local self-government bodies, regardless of their term in office. According to OPORA, it is important to avoid any contradiction with the Constitution of Ukraine when reforming the electoral law.

Local elections are not the only problematic aspect of the future legal reform. No less important is the task to improve the general provisions of Electoral Code, chapters on elections of the people’s deputies of Ukraine, and on the President of Ukraine. However, the parliament will have to allocate sufficient time therefor, and provide for the fully-featured discussion on the level of MPs, national and international experts.

Currently, the people’s deputies of Ukraine are considering a series of proposals that might affect the government’s compliance with the electoral process standards. Therefore, the Parliament shall take a comprehensive approach to consider them all.

Firstly, OPORA hereby reiterates the importance of abiding by the rights of electoral subjects to appeal against the decisions, actions, or inactivity of election commissions, or against other breaches of electoral law. Specifically, the suggested amendments reduce the terms for possible appeals against decisions, actions, or inactivity of election commissions from 2 to 5 days from the day of the event or the decision making. The draft obliges the candidates to object only to the violations committed by election commissions connected with the electoral district or region where it had been registered. Many proposals to the Electoral Code largely expand the list of violations, decisions, actions, or inactivity that might be challenged in the court only, and cannot be challenged to election commissions. In the settings of incomplete provision of principles of a rule-of-law state, it is unreasonable to reduce the possibilities for legal protection of citizens.

Secondly, it is important to prevent the aggravation of legal certainty of the grounds to reject candidates’ registration, and to prevent the complications in the registration process of candidates in this respect. In particular, the draft amendments suggest the possibility for election commissions to reject candidate’s registration due to lack of data in the documents stipulated by the Code. Legislative proposals fail to specifically list the data which absence in the candidate’s documents disables the registration, thus leaving a broad field for interpretations by election commissions. The Supreme Court of Ukraine, on the other hand, has multiple times drawn the election commissions’ attention to the importance to avoid excessive formalism when considering candidates’ documents. OPORA emphasizes that irresponsibility or breach of law by certain candidates shall not be deemed as the justification to aggravate the situation of law-abiding election participants.

Thirdly, the Parliament shall rather take a comprehensive approach to consider the proposals on improving the process of composition and operations of election commissions. Any hasty decisions shall be avoided, to prevent any disruption for election administration system. The draft amendments provide for the possibility to establish secretariats for district and territorial election commissions, upon the CEC decision, and on the basis of its territorial offices. District election commissions may be established without the legal entity status, in case the functions for their material and technical equipment are delegated to the CEC territorial units. The new proposals to the Code also provide for the possibility to include candidates for DECs and PECs positions of heads, deputy heads, and secretaries upon nomination by the CEC territorial offices. It is proposed not to restrict the numerical composition of election commissions that are additionally stuffed upon nomination of the higher level commissions. There is also a suggested possibility to fail on the principle of proportionate distribution of managerial positions in the commissions, in case their membership is changed. In the event regional and territorial offices of the CEC are established, they shall assume the powers to publish the decisions of election commissions and other data on elections.

OPORA supports the consistent position of the CEC on professionalization of election commissions. However, the systemic changes can only be adopted with a fully featured discussion on the parliamentary level, and with due simulation for all consequences that certain proposals may cause for democratic nature of elections, and for the due balance of the election administration system.

Fourthly, the Electoral Code shall keep the previously approved standards for citizens’ access to information on elections, such as in an open data format. At the same time, the CEC shall receive the realistic funding and the necessary time to expand the list of open electoral data accessible to the public. However, in our opinion, it would be reasonable to discard the idea to exclude the legal guarantees for the openness of electoral data from the general provisions of the Code, since it would be difficult to reach the new standards in this field without them. Election commissions are obliged to act only on the grounds, within the powers, and in a manner provided by the Constitution and laws of Ukraine. That is why deletion of the legal provisions from the Code would deprive the state from the prospects of systemic opening of electoral data.

Fifthly, it shall be legally provided that pilot projects to organize the machine assisted voting may be implemented only in case the election commissions simultaneously recreate the procedures provided by the Electoral Code.

People’s deputies are now discussing an initiative to assign to the CEC the powers to run pilot projects with new technologies implemented (such as machine assisted voting). At that, the procedure for vote count and transfer of data between the election commissions shall be stipulated on the by-law level, while the Code provisions shall not apply.

OPORA does support the idea to assign the CEC with powers to implement the pilot projects, but highlights the importance of staying committed to the legitimacy of all electoral procedures. It implies that the parameters of pilot projects shall not substitute the legitimate course of the voting process and vote count, while the by-laws shall not replace the Electoral Code. After running a pilot project or an experiment, the parliament shall have a possibility to evaluate the relevance of taking into account its findings for the legal regulation.

Sixthly, within the electoral reform, it is important to enhance the standards for financial transparency of election funds, while not reducing the scope of information on election funds of parties and candidates, as well as any data on sponsors of pre-election campaigns. The proposals developed by people’s deputies of Ukraine include a number of provisions that reduce the scope of information about persons contributing to election funds. According to OPORA, the initiatives shall be declined, while the legal reform shall continue to address party and election finance on the basis of internationally recognized standards and recommendations.

In the seventh place, it is important to avoid any unjustified sanctions for heads of political parties, their local organizations, candidates, or heads of local organizations, in case of detected facts of submitting  falsified applications from citizens giving their consent to act as election commission members, as proxies, or official observers. Liabilities shall be imposed on specific falsifiers, rather than on the basis of a formal affiliation of a party leader to the process of submitting certain nominations to election commissions. The sanctions shall be applied to specific actors in fault, rather than demotivate political and civil society leaders from undertaking responsibility in the election process. On the other hand, the problem of abuse of powers during elections can be tackled by introducing comprehensive,  proportionate, and effective sanctions, proposed in the joint recommendations of Ukrainian law-enforcement bodies and OPORA since 2017.

It shall be specifically emphasized that the issue of improving the proportionate electoral system, with voting for electoral lists at the parliamentary elections, calls for a more detailed discussion. The initiatives suggested to date, on reducing the number of constituencies and changing other parameters of electoral system at the parliamentary elections, have not been discussed, and shall not be adopted within the same package of local elections rules.

Key recommendations from OPORA to the Parliament on in-process changes to the Electoral Code

General recommendation:

- To prioritize amendments to the Electoral Code on local elections.

- To abort the significant review of the Electoral Code chapters on national elections, and on the general provisions, by providing due conditions for a fully featured parliamentary and expert dialogue.

- To approve a package of changes to the law to secure the irreversible punishment for electoral fraud, jointly developed by the Ministry of Internal Affairs of Ukraine, the National Police, and OPORA, with account for recommendations from the Chief Scientific and Expert Board of the Verkhovna Rada of Ukraine.

On local elections:

- To abort the initiative to introduce a monetary deposit at elections to village, township, and city councils run under a majoritarian electoral system in multi-mandate constituencies.

- To reduce the monetary deposit 5-9 times, at local elections run under a proportionate electoral system.

- To reject an initiative to empower a deputy group of the Verkhovna Rada of Ukraine to conclude agreements with local party organizations to nominate candidates for election commission members.

- Not to restrict the possibilities of submitting appeals for electoral subjects, to provide for due conditions to protect voting rights.

- Not to expand the grounds for non-returning a monetary deposit to candidates, but instead – to introduce a minimum threshold to return a deposit to candidates with the minimum number of votes.

On other elections and general provisions:

- To keep legal guarantees to provide citizens with access to open electoral data that enable the CEC to secure a realistic and consistent progress in this area.

- To keep and strengthen legal certainty of the candidate registration process or registration rejection.

- To provide for a fully-featured discussion on the level of a parliament on creating conditions for the professional enhancement of DECs, TECs, PECs, with no hasty decision making in order to prevent undermining of mutual control among electoral subjects.

- To provide a legislative regulation for pilot experiments with the application of new technologies, while they shall run parallel to procedures set by the Electoral Code.

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