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30.05.2012

Andriy Mahera: Without changes to electoral law, the results may be challenged in court

   

The Deputy Head of the Central Election Commission [CEC] has told Radio Svoboda that if certain amendments to the Law on the Parliamentary Elections are not made, the results could be questioned in the courts. He says that none of the changes which the CEC is insisting on touch the elements of the political compromise reached between the ruling majority and opposition.

Mr Mahera did not wish to comment on the suggestion made by the Speaker of Parliament, Volodymyr Lytvyn, that the Verkhovna Rada be dissolved and early elections held.  Lytvyn was speaking after parliament was blocked after the fight on Thursday between members of the ruling majority and opposition over a highly contentious bill seen by many as effectively giving Russian State language status at local level, and the opposition’s blocking of parliament on Friday. Mr Mahera simply pointed out that it is only the President who can dissolve parliament and only if no plenary session has been possible for 30 days.

When should the elections for Kyiv’s Mayor take place?

Mr Mahera explained that the situation is complex.  The last early elections took place in 2008, when under the Constitution then in place the Mayor was elected for 4 years, deputies (members of the Council) for 5. The changes made to the Constitution on 1 February 2011 increased the terms of the heads of city and other councils stipulating that the elections are held on the last Sunday in October during the 5th year of their term.  However, he stresses, the amendments are about those elected at scheduled, not early elections.

“At the present time, unfortunately, there will not be a purely legal decision regarding the date of the elections in Kyiv”.

The last scheduled elections were in 2006…  Mr Mahera gives more detail about the details making it difficult to actually say when the elections should have taken place or should.

He is convinced that the elections should take place this year since Kyiv residents are entitled to legal clarity and have the right to local self-government.  It is parliament who must set a date, he says, and this should be done as soon as possible.

Amendments to the Law on the Parliamentary Elections

Andriy Mahera believes the law, which was passed without the second reading stage, is too rough in places, with gaps needing to be filled, and there are also others following two Constitutional Court judgements.  He says that even if one assumes that the CEC tries to resolve these by issuing its resolutions, he has serous doubts as to the courts supporting the CEC if somebody challenges such resolutions in court.

The Constitutional Court judgements found that a candidate cannot simultaneously stand for election on the party list and in a single-mandate electoral district, and that Ukrainian voters abroad may only vote according to party lists.

Mr Mahera says that with regard to the first CCU Judgement regarding not being about to stand for election according to party lists and in single-mandate electoral districts, if the law is not amended, then each Ukrainian citizen able to vote will be entitled to vote simultaneously in all 450 electoral districts, as well as according to the list of political parties. And the CEC will have no grounds for refusing to register them.

With regard to voters abroad, he says that he has not unfortunately heard words in defence of these 400 thousand voters either from the government, or the opposition. At present there is no mechanism for counting the votes of Ukrainians voting abroad. What is more, the law does not envisage the existence of an electoral district abroad.  This needs to be created and he is emphatic that it cannot be done simply by a CEC decision.

“The Central Election Commission will, to put it mildly have problems establishing the results of the parliamentary elections without lawfully considering the results at foreign electoral districts.”  The situation is obvious, he explains, that even if we imagine elections running smoothly with no complaints, any party that loses will be able to place the results in question, lodging an appeal with the High Administrative Court against the CEC. The actions of the latter will be found unlawful which will end up in a legal conundrum without any way out.

There are thus a number of issues which must be resolved.  He stresses that all legislative proposals were passed unanimously by the CEC members and none affects the specific points of the political compromise between the ruling majority and opposition.

On the creation of single-mandate electoral districts and criticism regarding the way regions have been carved up

Mr Mahera says that he and four other members of the CEC did not vote for the Resolution.  It was passed by 10 members with the other five abstaining.  He clearly has problems speaking on this subject as a member of the CEC, but acknowledges with regret that there are regions where there are cases of electoral districts created out of separate areas not adjacent to one another. He points out though that the law clearly stipulates only one requirement, regarding the number of voters – that in a particular district this cannot be more than 12% higher or lower than the average for the country. He asserts that “this is yet again an issue of the quality of the electoral law which we passed and of the situation when at the meeting of the parliamentary special commission some members of the commission did not allow either representatives of the President’s Administration or the CEC to fully express their point of view, nor representatives of the other institutions invited.

He asserts also that one need not seek a political element in each decision, and that formally the Resolution did not contain violations of the law on the elections. He says, however, that he personally would have chosen another way of creating the electoral districts.

Mass scale handing out of benefits and goods by potential candidates now even before the official start of the election campaign

Mr Mahera stresses that bribing voters is unlawful carrying with it liability. He says that the enforcement bodies should be involved but cannot call them law enforcement (in Ukrainian protecting the law – translator) since they are doing nothing to protect the law. It is they who should be taking on this function, and not the CEC.

The role of registering candidates has this time been taken from individual districts and passed to the CEC. While acknowledging problems due to the ensuing increase in workload, Mr Mahera believes that the move is one of the positive elements of the law.

Abridged from an interview here

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