Damning Venice Commission report on election draft law
The report notes that the choice of mixed system, raising of the threshold for gaining mandates and banning of electoral blocs are all unilateral moves by the majority without consultations with representatives of the other political parties and civil society
This by no means exhausts the areas of concern. The Joint Council of Europe - OSCE/ODIHR opinion on the draft parliamentary electoral law can be downloaded here: http://www.venice.coe.int/
Trust in fairness of electoral rules essential for democratic elections 19/10/2011
During its plenary session last week (14-15, 10, 2011), the Council of Europe's advisory body on constitutional matters – better known as the Venice Commission - adopted a joint OSCE/ODIHR opinion on the draft Law of Ukraine on Election of the People’s Deputies of Ukraine.
The opinion points out that the electoral system chosen in the draft law matches neither the one discussed by the Venice Commission representatives during their meetings with the Ukrainian authorities nor the one recommended by the Parliamentary Assembly of the Council of Europe in its Resolution 1755 (2010). In addition, the choice of the mixed system – raising of the threshold for gaining mandates from 3% to 5% and banning electoral blocs – all changes were made by the majority unilaterally and without consultations with the representatives of the other political parties and civil society. These different changes do not facilitate the access of different political forces to parliament.
The Venice Commission and OSCE/ODIHR reiterate that trust in the fairness of the electoral rules is essential for conducting democratic elections.
Although the draft law incorporates a number of previous recommendations of both OSCE/ODIHR and the Venice Commission, several recommendations remain unaddressed.
OSCE/ODIHR and the Venice Commission welcome the decision of the President of Ukraine not to introduce the draft law himself but rather to send it to the Verkhovna Rada so that different political factions can discuss and finalise this draft. This step could ensure a discussion open to all political forces. Moreover, this process should also involve civil society and thus help to build the trust of the Ukrainian society in the electoral process.
OSCE/ODIHR and the Venice Commission stand ready to assist the authorities, notably the Verkhovna Rada of Ukraine, in their efforts to create a legal framework for democratic elections in conformity with OSCE commitments, Council of Europe and other international standards for democratic elections.
16. However, a number of issues raised in prior OSCE/ODIHR reports and the Venice Commission and OSCE/ODIHR joint opinions remain unaddressed in the draft law.
Consideration should be given to addressing these recommendations in the draft before it is submitted to parliament. These issues include:
Limitation on the right to stand for anyone convicted of a deliberate crime, regardless of the severity of the crime committed, which is contrary to OSCE commitments, numerous recommendations of OSCE/ODIHR and the Venice Commission in the electoral field, good practice and other international standards. The Venice Commission and OSCE/ODIHR are aware that such limitation is based on the Article 76 of the Constitution of Ukraine and hope that
this problem will be considered when the Constitution is revised;
Lack of clear criteria and deadlines for defining boundaries of electoral districts;
Lack of clarity on the possibility of challenging election results;
Lack of full disclosure, before and after elections, of sources and amounts of financial contributions and the types and amounts of campaign expenditures, as well as independent monitoring of the funding of political parties and electoral campaigns. The draft also lacks effective, proportionate and dissuasive sanctions for violation of campaign funding provisions;
Deadlines for registration of candidates in the constituencies;
Removal of the right of parties to form electoral blocs;
Certain provisions limiting the right to freedom of expression that are contrary to
OSCE commitments, recommendations and opinions of OSCE/ODIHR and
Venice Commission and other international standards;
The maximum number of voters allowed per precinct is maintained at 2, 500;
Observers are allowed to "take all necessary measures to stop illegal actions
during voting and vote counting at the PEC";
Two or more international observer groups wishing to co-ordinate their activities
must seek prior approval of the CEC;
PEC members have to sign the ballot before giving it to the voter in order for it to
The draft contains provisions allowing the PECs to declare the results invalid
based on arbitrary standards of impermissible abuse, which may establish an
acceptable level of fraud.
The main concern expressed during the visit is the lack of consultation with
opposition parties and civil society on the change of the electoral system, the setting
of the threshold for gaining mandates and the banning of blocs. Making these
fundamental changes in the electoral system without broad public discussions and
consultations can compromise the legitimacy of the draft law regardless of how it is
implemented (see paragraph 9 above).
In the framework of this joint opinion, the Venice Commission and OSCE/ODIHR are
pleased to offer recommendations for consideration by the authorities of Ukraine in
support of their efforts to improve election-related legislation and bring it more closely
in line with OSCE commitments and international standards. However, it must be
emphasised that, in addition to further amendments to the legislative framework, full
and effective implementation of the law is necessary in order to ensure conduct of
elections in line with international standards.
“The draft law represents a return to the mixed electoral system in use in Ukraine in 1998 and 2002. The draft law provides for a mixed proportional-plurality (majoritarian) electoral system, whereby half of the members of parliament are elected on political party lists in a single nationwide constituency and the other half are elected in single mandate constituencies (first past the post, one round). Such frequent changes of the electoral system do not contribute to the stability of the electoral legal framework and electoral system. The choice of an electoral system is the sovereign right of each state; however it should be decided and agreed upon through broad and open discussions in the parliament with the participation of all political forces. Since the draft law re-introduces the system used in the 1998 and 2002 parliamentary elections, it should take account of the shortcomings of the electoral process identified by the national and international experts and observers during those elections The change of the system should not be understood in such a way as to undermine the confidence of the voters, political parties and civil society in the electoral process.”