Weekly analytics for 14 – 20 December 2021
Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combating corruption, criminal justice, etc.
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The President once again appointed judges who did not complete the qualification assessment to a permanent tenure
On December 16, the President signed Decrees № 664/2021 and 665/2021 appointing 20 judges who did not complete the qualification assessment to a permanent tenure, despite the Public Integrity Council approving opinions on their non-compliance with the criteria of integrity and professional ethics.
In June 2020, the Law No. 679-IX came into force which, in the absence of authorized composition of the High Qualifications Commission of Judges, allowed the High Council of Justice (HCJ), without relevant recommendations, to submit to the President petitions for the appointment of judges for the initial five-year term, based on the decisions of the HQCJ finding those judges as being in compliance with their position’s requirements, until the entry into force of this Law.
Indeed, the HCJ used the provisions of this law to submit to the President petitions for the appointment of judges who did not complete the qualification assessment procedure to a permanent tenure, which contradicts not only the purpose of this law but also the legal procedure for appointing such judges.
On December 2, 2020, the public called on the HCJ to stop submitting nominations for appointments of judges who have not completed the qualification assessment. However, this did not stop the HCJ, and according to our estimates, the Council has submitted to the President 95 petitions for the appointment of such judges to permanent tenure since the entry into force of Law No. 679-IX. Furthermore, the HCJ recommended the President to appoint one judge who never pass the qualification assessment.
For a long time, the President disregarded the HCJ’s submissions. However, in early December this year, he began to appoint judges based on the HCJ’s petitions. As of December 17, the President accepted 44 HCJ submissions that were filed in violation of the law.
The appointment of the mentoned judges in violation of the procedure defined by the law may call into doubt the legitimacy of their decisions and subsequently lead to the finding of violation of Article 6 of Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights (in regards to violation of the right to a fair trial by a court established by law).
Draft law to restore a mixed electoral system was registered in the Parliament
On December 17, a draft law to restore the mixed (majoritarian-proportional) electoral system for parliamentary elections was registered in the Parliament (Reg. № 6444). This draft law allows the postponement of a proportional electoral system introduction for parliamentary elections until January 1, 2027, by the temporary resumption of the Law of Ukraine “On Elections of Peoples’ Deputies of Ukraine”, providing a mixed electoral system.
The current version of the Constitution of Ukraine does not specify the type of electoral system to be used for parliamentary elections. Analysis of Articles 76, 81-83 and 90 of the Constitution of Ukraine brings us to two opposite conclusions: (1) The Constitution stands exclusively for the proportional electoral system (i.e., the provisions on the coalition of parliamentary factions and the imperative mandate); 2) The Constitution stands exclusively for the majoritarian electoral system (i.e., the provisions on legally constituted Parliament if at least two-thirds of its constitutional membership has been elected). In fact, from a legal point of view, both conclusions are not definitive and mutually exclusive, as the Constitution most likely allows for the possibility of combining and applying each of these electoral systems in practice.
Article 77(3) of the Constitution stipulates that the procedure for holding parliamentary elections shall be established by law. Today, such a law is the Electoral Code, which made the Law of Ukraine “On Elections of Peoples’ Deputies of Ukraine” expired in 2019. The latter, according to CPLR experts, provided for a combination of the two worst-case electoral systems in parliamentary elections: half of the Verkhovna Rada is elected by a proportional system with closed party list in the national multi-member constituency, and the other half – by a majoritarian system in single-member constituency districts. The election of MPs using the closed party list stimulated political corruption, hampered the real party-political competition, and significantly limited the electoral will of voters. The election of deputies in single-member constituencies encouraged bribery of voters and members of election commissions and administrative pressure on opposition candidates from the part of authorities. In addition, such a combined electoral system left the Verkhovna Rada beyond the constitutional composition (450 MPs) since it is impossible to hold majoritarian system elections in the constituencies located in the temporarily occupied territory (the current composition of the Verkhovna Rada elected in 2019 consists of 423 MPs).
That is why civil society has long advocated a decision to eliminate the above problems – introducing a proportional preference-based electoral system with regional electoral lists of candidates. The first part of Article 133 of the Electoral Code provides a version of this system that should be applied for the first time in the next regular parliamentary elections in 2023 (or in the early parliamentary elections if it is a case).
It seems that the mid-term elections in single-member districts in 2020-2021 have created among the authorities a strong belief that they can win most single-member districts in the next parliamentary elections if the introduction of a proportional system under the Electoral Code is delayed. Moreover, a fundamental amending of the text of a draft law “On Amendments to the Law of Ukraine ‘On Local State Administrations’ and some other legislative acts of Ukraine on reforming the territorial organization of executive power in Ukraine” (Reg. № 4298), which deprives the head of the local state administration of the public servant status, only confirms the concern that the authorities want to use the mixed electoral system and their administrative resources to retain their power. Given this, the idea of postponing the introduction of a proportional electoral system for parliamentary elections is a harmful and politically irresponsible step that undermines confidence in Ukrainian parliamentarism, creates instability in electoral legislation, and poses potential risks to the usurpation of power.
CPLR experts see no need to delay introducing a proportional system for parliamentary elections. It is worth mentioning that in the 2020 local elections, according to the decision of the parliamentary majority ensured by the “Servant of the People” party, the proportional electoral system was applied to elections of small community councils (up to 10,000 voters), where the majority system should be applied instead. Therefore, it would be more appropriate to review the electoral system in local elections and hold the next parliamentary elections using the proportional system provided by the Electoral Code.