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Ukraine: PACE co-rapporteurs express concern about electoral reform

02.06.2011    source:
"The authorities do not seem to be very serious about entering into a dialogue with all political forces on the drafting of a new election code, and instead seem only to be willing to discuss the details of a code they have already drafted in private,"

In an Information note on a fact-finding visit to Kyiv and Kviv the Parliamentary Assembly of the Council of Europe write that “developments with regard to electoral reform are of serious concern”, especially in the context of the upcoming parliamentary elections in 2012. 

"The authorities do not seem to be very serious about entering into a dialogue with all political forces on the drafting of a new election code, and instead seem only to be willing to discuss the details of a code they have already drafted in private, " - Marietta de Pourbaix-Lundin (Sweden
EPP/CD), co-rapporteur for the monitoring of Ukraine

The following is from the report at the PACE website  (Severely edited only because it is from a PDF document, and the original is easy to download)

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Information note by the co-rapporteurs on the fact-finding visit to Kyiv and Lviv (5-8 April 2011)

Co-rapporteurs: Mrs Mailis REPS, Estonia, Alliance of Liberals and Democrats for Europe, and Mrs Marietta de POURBAIX-LUNDIN, Sweden, Group of the European People's PartyI. Introduction

The visit to Ukraine took place from 5 to 8 April 2011.

The main topics for this visit were the constitutional situation in Ukraine and the measures to be taken to bring the new constitutional framework in line with European standards and norms and the elaboration of a new legal framework for elections, especially in the perspective of next year's parliamentary elections.

In addition, as mentioned above, the visit also aimed to gain a better understanding of the different regional perspectives in Ukraine, as well as to check the state of implementation of reforms with a view to strengthening local and regional self-government in the country. The statement issued at the end of the visit is attached in Appendix 1.

II. Constitutional reform

On 1 October 2010, the Constitutional Court of Ukraine, following an appeal by 252 MPs from the ruling coalition, ruled that the procedures for the adoption of the 2004 Constitutional Amendments had violated the Constitution and therefore declared these amendments unconstitutional. Furthermore, it ordered the Parliament to bring the current legislation back in line with the previous Constitution of 1996. This decision raised a series of questions in the Assembly, which therefore, in Resolution 1755 (2010), adopted on 5 October 2011, considered that "... this decision should now prompt the Verkhovna Rada to initiate acomprehensive constitutional reform process with a view to bringing Ukraine's constitution fully in line withEuropean standards". In addition, the Monitoring Committee decided to request an opinion of the EuropeanCommission for Democracy through Law (Venice Commission) on the new constitutional situation in Ukraine and on what measures would be needed to bring this constitutional framework in line with Council of Europe standards. This opinion[2] was adopted by the Venice Commission on 18 December 2010.

In its opinion, the Venice Commission recalled its criticism of the 1996 constitution -which is now again fully in force- which concentrated the powers in the hands of the President and resulted in a constant clash between the executive and legislative branches of power. For that reason, the Venice Commission and PACE, at that time, advocated constitutional reform to strengthen the powers of the Parliament. The constitutional changes of 2004 introduced a mixed Presidential-Parliamentarian system which, while strengthening nominally the powers of the Parliament, did not resolve the systemic conflict between the different branches of power and has hindered the democratic development of the country over the recent years. However, with the return to the 1996 Constitution these systemic weaknesses have not been resolved in the Constitution and a comprehensive reform of the political system, with a view to strengthening the role of the Parliament, is still necessary. As noted by the Venice Commission: "The fundamental problems withUkraine have been dysfunctional institutions, lack of checks and balances especially with respect to the president and constant clashes between the state organs". Therefore, in the current political context, the "excessive strengthening of the President's powers can become an obstacle for building genuinelydemocratic structures and may eventually lead to an excessively authoritarian system".  <>

III. Electoral reform

As underscored in Resolution 1755 (2010), as well as in several of our previous reports, the reform of the electoral system, and the adoption of a Unified Election Code, is essential for the consolidation of democracy in Ukraine. These reforms, and the need for a Unified Election Code, have become all the more important in the perspective of the upcoming parliamentary elections that will take place next year. The questionable state of the legal framework for elections in Ukraine, and the risk this entails for the electoral process in a country that has a habit for playing with the electoral rules for short-term electoral gain, was highlighted during the local elections in October 2010, which where widely criticised for their shortcomings and considered a step backwards in comparison with previous elections.

As mentioned in our last report[3], the Verkhovna Rada had established a special working group to draft a new unified election code. This cross party working group, which was composed of representatives of most political forces as well as experts and representatives of civil society, collaborated closely with the Venice Commission as well as other international actors, such as the OSCE/ODIHR. Regrettably, the work of this group was, for the most part, boycotted by the Party of Regions. The working group finalised its work and tabled a draft Unified Election Code for adoption in the Verkhovna Rada at the end of 2010. However, this draft Unified Election Code would not appear to be on the agenda anymore and President Yanukovich has announced that his administration will draft its own proposal for a new electoral code. He subsequently established a special working group, composed of a wide range of representatives and experts, to draft his administration's proposal for a new election code.

This Presidential working group was initially given support by the international community. However, its
working methods have recently raised serious concerns. As a result of the non-transparent working methods of this group, the National Democratic Institute (NDI) and the International Republican Institute (IRI) have suspended their participation in its work. In our meetings with them, NDI and IRI underscored their concerns about the lack of transparency and accountability in the group and their clear impression that the real drafting of -and all relevant decision-making with regard to- the new election code takes place behind closed doors outside the framework of the working group. In addition, they lamented the lack of balance between the different political forces in this group.

Several other interlocutors echoed the same concerns as NDI and IRI, which gives us the impression that the authorities are not very serious about entering into a dialogue with all political forces on the drafting of a new election code. Instead, the process would appear mostly aimed at giving legitimacy to a draft election code that has already been drawn up in private. In this respect, we would like to stress that a wide consensus on, and trust in, the new election code, is essential for the conduct of genuinely democratic elections in Ukraine next year.

Two further developments with regard to the electoral reform process are of concern. Firstly, the Assembly and the Venice Commission, as well as other actors, have been recommending for quite some time that the country should adopt a Unified Election Code to replace the current situation where each type of election is governed by its own separate legal framework. The provisions of these legal frameworks are often incompatible and in contradiction with each other. The recommendation to adopt a Unified Election Code was reiterated in Assembly Resolution 1755 (2010) of October last year. Until recently, the authorities fully and publicly supported the Assembly's recommendation However, to our great regret, the Minister of Justice, who is responsible for the co-ordination of the electoral reform, told us during the last visit that the authorities are no longer interested in an unified election code and only intend to propose a new draft for an electoral framework for parliamentary elections. He stated that this was reflected in the mandate of the Presidential working group on electoral reform. Given that recent polls show a clear decrease in popularity of the authorities, many interlocutors interpreted this change of heart as a sign that the authorities are considering the possibility to play with the electoral rules, if needed, for election related strategic reasons.

Secondly, the Assembly, as well as a number of other international institutions, has recommended that a new election system be agreed upon as part of the electoral reform The fully proportional closed list system, which was in use until the reinstatement of the 1996 Constitution, was not considered to be beneficial for democratic consolidation in Ukraine as, de facto, it concentrates the political power in the country in the hands of a few individuals. Similar criticisms can be made about the mixed proportional- majoritarian system that was re-introduced with the reinstatement of the 1996 Constitution. For its part, the Assembly has recommended that an electoral system be adopted that consists of a proportional system based on open lists in multiple regional constituencies. The introduction of open lists and multiple regional constituencies would, inter alia, increase party democracy and voter transparency, while ensuring regional representation. This model has also been supported by other international organisations and bodies.
In addition, during previous visits, all political parties informed us that they favoured a system that would include the key tenets of the system proposed by the Assembly. However, during this visit, the Minister of Justice informed us that the mixed proportional-majoritarian election system that has now once again come into force is non-negotiable for the ruling majority and will be maintained. We would like to highlight that, irrespective of the election system that the country chooses, this system should be acceptable to, and trusted by, all electoral stakeholders in order to ensure the conduct of genuinely democratic elections.

The latest developments with regard to electoral reform are of serious concern, especially taking into account the October 2010 local elections, during which significant shortcomings were noted and considered as a step backwards in comparison with the last Presidential elections. We would like to reiterate that the conduct of genuinely democratic elections, together with clear respect for personal freedoms and human rights, were key achievements of the country over the last years. We consider any regression in that regard unacceptable.

An element of tension and political controversy in Ukraine has been the status of the Russian language. This is an issue that should be treated with the utmost caution as it could potentially affect negatively the East-West divide in the country. This underscores the sensitive nature of the Draft Law on Languages, which was sent for opinion to the Venice Commission by the Speaker of the Verkhovna Rada on 27 November 2010. In its opinion[4] on this draft law, the Venice Commission concluded that the draft fails to provide a balanced legal framework for the use and protection of Ukraine's languages. Moreover, the Venice Commission noted that, in practice, this law would constitute a step towards official bilingualism, in contradiction with the Constitution of Ukraine. It would indeed appear that this draft law mostly aims at protecting the Russian language at the cost of other languages in the country.

During our visit, we understood that the authorities no longer wish to pursue this draft law for adoption and that, given its sensitivity, this issue is, for the moment, no longer on the agenda. However, this position is criticised within the Party of Regions. The authorities have confirmed that, in its current format, the draft is no longer on the agenda for adoption by the Verkhovna Rada. Moreover, they assured us that the opinion of the Venice Commission will be fully taken into account when redrafting this law at a non-specified future date. Given the importance of this subject, we intend to return to issues of languages, education and national identities during one of our next visits to the country.


Strasbourg, 08.04.2011 - "I am convinced that Ukraine's rightful place is in Europe, and welcome its willingness to live up to European ideals and standards, " said Marietta de Pourbaix-Lundin (Sweden EPP/CD), co-rapporteur for the monitoring of Ukraine by the Parliamentary Assembly of the Council of Europe (PACE), following a visit to Kyiv and Lviv. She welcomed the continuing efforts of the authorities to meet Ukraine's commitments to the Council of Europe and to respond to Assembly recommendations.

However, at the same time she also stressed that some recent developments gave rise to concern.

"The authorities do not seem to be very serious about entering into a dialogue with all political forces on the drafting of a new election code, and instead seem only to be willing to discuss the details of a code they have already drafted in private, " said Ms de Pourbaix-Lundin. She underscored that consensus on, and trust in, the new election code by all political forces would be essential to ensure genuinely democratic elections in Ukraine next year.

In addition, Ms de Pourbaix-Lundin expressed her disappointment with the fact that the authorities were willing to discuss a new election code for parliamentary elections only, and not the establishment of a unified election code that would apply to all elections, as strongly recommended by, inter alia, the Venice Commission and the Assembly.

With regard to constitutional reform, the co-rapporteur underscored that the return to the 1996 Constitution had not removed the obstacles to fulfilling Ukraine's commitments to the Council of Europe that were highlighted in the recent resolution of the Assembly. "This is understood by the authorities and in that respect
I applaud their initiative to set up a Constitutional Assembly to guide the constitutional reform process, " said.  Ms de Pourbaix-Lundin. In that respect she also urged the authorities to ensure that the different co-ordination and consultation structures that were recently established work hand in hand to avoid confusion about the direction of the reform process.

In addition to holding meetings with the authorities in Kyiv, Ms de Pourbaix-Lundin visited Lviv to gain a
better understanding of the regional perspective on the reforms and political developments. At the end of her visit there, Ms de Pourbaix-Lundin welcomed the young and dynamic political scene in Lviv and stressed that more profound reforms were needed to ensure genuine self-government at the regional and local level.

The next report on the honouring of obligations and commitments of Ukraine is foreseen for the first half of 2012.



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