Comments and Proposals of Civil Society Organizations for Improvement of Electoral Legislation
Improvement of electoral legislation remains an important issue of political agenda. Making changes to the electoral legislation is an integral part of Ukraine’s preparations for signing EU-Ukraine Association Agreement.
In February 2013, the Cabinet of Ministers of Ukraine approved the Plan of priority measures for Ukraine’s integration into EU for 2013.
Within the framework of implementation of the Plan for priority measures for Ukraine’s integration into EU, the Ministry of Justice of Ukraine (hereinafter MOJ) prepared the draft Law “On amendments to certain legislative acts of Ukraine aimed to improve electoral legislation” (hereinafter – Draft Law). On 11 April 2013, this Draft Law was published on the MOJ website, while on May 21 the MOJ made public additional amendments to this draft related to improvement of election campaign finance regulation.
The abovementioned draft laws to a significant extent address the OSCE/ODIHR recommendations listed in the Final Election Observation Report on Parliamentary Elections held on 28 October 2012. However, civil society organizations specializing on the electoral issues, protection of human rights and media consider the changes put forward by the Ministry of Justice to be only a first step toward meaningful electoral law reform.
Therefore we recommend:
1. That the Government of Ukraine restart work towards the preparation and adoption of a unified Electoral Code. The need to consolidate the electoral legal framework is highlighted in the OSCE/ODIHR Election Mission Observation reports prepared after 2002, 2006, 2007 and 2010 elections. We believe that the draft Electoral Code, which received generally positive response from the Venice Commission, can constitute a sound basis for implementation of this recommendation, at least with regard to election procedures.
2. Inthe short-term, draft changes to the Local Election Law should be prepared and adopted. Such changes should unify the provisions of the Local Election Law, Parliamentary Election Law and Presidential Election Law. In particular, the provision on possibility of deregistration of candidate for elections based on repeated warnings issued to the candidate by territorial election commission should be removed from the Local Election Law as it deprives the voter of the constitutional right to be elected, thus violating Art. 64 of the Ukraine’s Constitution.
3. The provisions in the Draft Law related to establishment of the election commissions in parliamentary elections should be supported, in particular, as regards nomination of the candidates for membership on the DECs and PECs by political parties which nominated candidates in the nationwide election district and separate lots to be drawn to select members for each DEC.
4. Before submission of the Draft Law to the Parliament, consideration should be given to introducing separate lotteries to select PEC members, which is currently not foreseen in the Draft Law.
5. The powers to register MP candidates, to control campaign expenses by parties and candidates, to approve the for, text, color and content of the ballot papers, to print the ballot papers, to announce warnings to parties and single mandate district candidates should be vested in the Central Election Commission. Such an approach will ensure unified implementation of the Parliamentary Election Law throughout the country.
6. However, we believe that the provision in the Draft Law empowering the DECs to register authorized persons and MP candidate proxies in single mandate election districts should be supported.
7. The provisions in the Draft Law that extend the list of requirements for establishment of the election districts and provide for periodic review of their boundaries and centers are reasonable. In particular, granting the CEC the right to review the district boundaries and centers will allow the public and local communities to demand correction of mistakes occurred in boundary delimitation in previous elections. Three-month term for review of the election district boundaries by the CEC will help to avoid excessive politicization of the boundary delimitation process.
8. The transformation of the National TV Company of Ukraine and regional state television and radio companies into independent public service broadcasters should be accelerated. In particular, the Parliament should, before the end of the second session, consider and adopt at least in the first reading either the draft Law “On Public Service Broadcasting” (registration No 1076) or the draft Law on amendments to the Law on System of Public Service Broadcasting (registration No 1076-1).
9. The provisions in the Draft Law on media coverage of the elections should be further improved. The provisions aimed to prevent publicly important information on elections from being concealed or twisted, as well as provisions requiring that such information be obtained from at least two sources are reasonable. However, inclusion of debates and discussions within the definitions of both information coverage of the elections and election campaigning could make the news media reluctant to participate in the election process. The sanctions applicable to media for violations should be also reviewed, since the sanctions currently available (i.e announcement of a warning to media, and suspension of the media license or publication of printed media) cannot be considered effective and proportionate sanctions, as required by international standards.
10. Despite OSCE/ODIHR recommendation to the National Broadcasting Council to use monitoring reports produced by NGOs while considering the possibility of sanctioning the media for violations, we believe that implementation of this recommendation may result in selective enforcement of the legislation. Therefore, we suggest this provision be eliminated from the Draft Law.
11. The MOJ proposal to limit election campaign expenses for parties and MP candidates generally complies with the international standards. However, the purpose of the spending limits differs from the purposes pursued in other countries. In particular, reasonable election campaign spending limits can be justified if they aimed to ensure that free expression of the voter will is not violated and that the democratic nature of the electoral process is not distorted by disproportional funding to support a specific party or candidate. The Ukrainian Parliamentary Election Laws, which governed the 1994-1998 and 2002 elections provided for election campaign spending limits. However, these limits merely resulted in the growth of so-called “shadow” funding of elections, which were not disclosed. For this reason, in our opinion, election campaign spending should be subject to limits only if counterweighted by introduction of public funding of political parties.
12. The OSCE/ODIHR recommendation to restrict certain types of election campaigning in media should be supported. In addition, the possibility of outdoor advertising should be limited or excluded entirely during the election process.
13. The MOJ proposal to limit a certain category of voters to only one vote under the proportional system in the nationwide election district should be reviewed, even though such a proposal addresses the respective OSCE/ODIHR recommendation. Restriction of the right to vote under one of the components of the electoral system for a certain category of voters should be viewed as unconstitutional measure violating the principle of equal suffrage. The Constitution of Ukraine does not provide for the possibility of the right to vote in parliamentary elections based on place of residence or place of citizen’s stay, while Article 24 of the Constitution explicitly prohibits restriction of citizen rights on these grounds. Introduction of such restrictions will also result in wrong understanding of the nature of the representative mandate of MP. In European countries and in Ukraine representative mandate is free, i.e. MP represents the people rather than voters of election district where he/she was elected.
14. The provision in the Draft Law that deprives official observers the right to observe the actions of the election commissioners from any distance at the election precinct should be reviewed. In practice, this proposal, if implemented, might have a negative impact on observers’ ability to exercise their rights with regard to observation. It also fails to comply with international standards for observation of elections.
15. While we generally support the OSCE/ODIHR recommendation that the law be made more specific with regard to the procedure for receipt of the PEC election-related documents by DECs and the tabulation of voting results, with respect to repeat vote counting, we are of the opinion that the possibility of splitting the DEC commissioners into several groups to receive election documents should be eliminated, since such division into groups might undermine the collective nature of DEC decision-making and would not ensure impartiality of actions of group members.
OPORA Civic Network
Electoral Law Institute
Committee of Voters of Ukraine
Agency for Legislative Initiatives
Ukrainian Independent Center for Political Research
Center for Political and Legal Reforms