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Viche 2015 19

19, 2015

Problem of the legislative regulation of elections to the Verkhovna Rada of Ukraine: realities and prospects

The article is devoted to the search of optimum model of elections to the Verkhovna Rada of Ukraine and its establishment at the legislative level. It is emphasized that it is necessary to introduce the electoral system with the open lists as such, which will let the electors give preference to particular candidates for folk deputies. The arguments are given in favor of the mixed electoral system which removes the lacks of majority and proportional election systems. The author offers to bring concrete amendments to the Constitution of Ukraine and to the election legislation, namely to the Law On elections of folk deputies of Ukraine.r
Keywords: election system, mixed election system, proportional election system, election legislation.

The problem of improvement of Ukraine's legislation on parliamentary elections originates from the 90s of the XX century and it did not lose its relevance even now. The question of the parliamentary electoral system remains open on the background considerations on what such a system should be.

As you know, the Decree of the President of Ukraine from November 2, 2010 "On the Working Group on Improving the Electoral Legislation" sets a task to bring electoral legislation into accordance with generally accepted democratic international standards in order to accelerate its codification [6].

The Working Group has developed a draft law on elections of people's deputies of Ukraine, which took into account comments and recommendations of the Venice Commission and OSCE/ODIHR. It should be noted that these international expert organizations offered to introduce in Ukraine a proportional electoral system based on open lists and multiple regional constituencies. However, this proposal has been rejected on the grounds that "the Code of Good Practice in Electoral Matters adopted by the Venice Commission at its 52nd plenary session (Venice, 18-19 October 2002), contains no reservations concerning the procedure to nominate candidates for the elections and the type of electoral system. Therefore this is an internal matter of the country" [3].

In our opinion, the idea of introducing multiple constituencies and proportional electoral system with open lists deserves support, but needs specification. Today a similar electoral system has been introduced in elections to local authorities. However, the proposed electoral model does not provide for favoring a particular candidate in the electoral list.

Going back to the law on elections of people's deputies of Ukraine of 2011, we can say that it wasnt positively evaluated by international experts, who said: introduced electoral system facilitates the passage to the Parliament of the ruling parties through the use of administrative resources [4]. The main argument against such electoral system was ignoring recommendations of international organizations regarding the need for introduction in Ukraine of proportional system based on open lists [3].

Except for the position of international law institutions that insist on the introduction of a proportional electoral system with open lists, scientists are working on this issue who also argue in favor of the introduction of open electoral lists in Ukraine. First through application of proportional system with closed lists there has appeared a contravention of the principle of electoral and regional representation. For example, according to the results of snap elections to the Parliament in 2007 almost 61 per cent of the total number of deputies was occupied by people from Kiev, while the share of the population of Kiev in Ukraine is only about 6 percent. Therefore, the said electoral system greatly reduces the connection of voters with their representatives that eliminates the element of personal responsibility of deputies to the citizens, and it should be otherwise. The next argument against the use of closed electoral lists is that the role of leaders of parliamentary factions is unjustifiably enhanced while "ordinary" mandates are being impaired. This is not conducive to the formation of political parties with internal partner relationships, where party members are united by common ideological and moral and ethical views. They are formed primarily as parties of a leader-centric type that affects negatively the quality of the party system. Finally, due to the lack of quality of personalized deputys selection its professional level has been  dramatically reduced, and therefore - reduced rates and, most importantly, the quality of law-making [5].

However, in our opinion, the introduction of the proportional electoral system exclusively with open lists will not ensure passage of self-nominated candidates to the parliament because the system does not provide for self-nomination. But self-nomination is a fundamental principle of international electoral law and it must be implemented at the level of legislation.

Therefore, the assumption can be made that one of the reasons of introduction of a mixed electoral system in 2011 was that the chosen system neutralizes the shortcomings of majoritarian and proportional electoral systems and allows ensuring formation of a stable parliamentary majority with the highest regard to the interests of small social groups. We agree with U. Shveda: introduction of a mixed electoral system in our country was the result of seeking compromise between the principle of parliamentary representation of different political forces and stability of the government formed by them [7, p. 346]. However, the search for an optimal model of elections to the Verkhovna Rada of Ukraine is not only to be limited to a change in the method of distribution of seats; it is necessary to determine the level of legislative regulation of this issue, for example, at the level of election code. According to O. Voloshchuk, it is in process of codification when duplication and contradictions between the four main electoral laws in Ukraine can be eliminated [2, p. 77].

In accordance with the author, codification should take place through the adoption of the Electoral Code of Ukraine, which may remove a lot of problems and inconsistencies in the electoral legislation from the agenda. However, this proposal should be supplemented, namely by offering amendments to the Constitution of Ukraine and the Law "On Elections of People's Deputies of Ukraine". Adding relevant proposals to the current legislation should stabilize a permanent process of changing in the electoral system. The argument in favor of such changes, namely to the Constitution of Ukraine is the fact that almost all the constitutions of the EU Member States enshrined major, international electoral standards. Thus, constitutions of 16 of the 25 EU Member States enshrined the electoral system to higher representative bodies of state power [1, p. 6]. In the case of amending the Constitution of Ukraine, taking into account the proposals of the Venice Commission and the International Foundation for Electoral Systems (IFES) to consolidate the positive and negative aspects of the proportional and majoritarian electoral systems at the level of electoral legislation also amendments to the Law "On Elections of People's Deputies of Ukraine" are being proposed. This bill, in particular introduces a mixed electoral system.

Majoritarian component in the law will be reflected in conducting elections in single-member constituencies. Elections will be held in one round, the winner will be the candidate who receives the most votes. This is one-tour majority system of relative plurality. The proportional part will have the following character: political parties form the national electoral lists, the names of candidates are fixed in alphabetical order, and five candidates are fixed in each territorial electoral district. Voters will have right to vote for one candidate out of the five candidates fixed in the territorial election district.

After the voting and counting of votes, the Central Electoral Commission will establish the total number of votes received in favor of a particular political party, will determine which parties have crossed the 5-percent electoral threshold. CEC allocates seats among parties that crossed specified threshold, as follows: first mandate will go to the candidate enshrined in the territorial constituency who won the most votes, a second mandate - to the candidate who won the second largest number of votes, the third to the third one, the fourth to the fourth and so on. The Central Electoral Commission will determine the number of single-member and regional constituencies, which by their territorial basis should be identical. Total number of single and territorial election districts must correspond to 50 percent of the deputy seats specified by the Constitution of Ukraine.

Thus, we can conclude that, first, the amendments to the Constitution of Ukraine regarding the introduction of the type of electoral system will ensure stability of the system, and, secondly, the proportional component of the proposed mixed electoral system with open lists will allow voters to vote for a particular candidate in election list, while the majority component will allow parliamentary candidates to be self-nominated.

References:

Vybory v Yevropeiskomu Soiuzi [Elections in European Union ]  / [Bezpiatchuk Zh., Yevhenieva A., Kovrizhenko D. etc.]; in D. S. Kovrishenko (ed); Lab.zakonodav.initsiatyv. .: FADA: LTD, 2006. 155 p.: pictures, tables. Bibliohr.: P. 147155.

Voloshchuk O. (2010), Do pytannia obhovorennia proektu Vyborchoho Kodeksu Ukrainy [Discussion of the Election Code of Ukraine], Vistnyk tsentralnoi vyborchoi komisii. 2 (19): 7782.

Propozytsii Robochoi hrupy z pytann udoskonalennia zakonodavstva pro vybory shchodo rekomendatsii Venetsianskoi komisii ta OBSIE/BDIPL u proekti Zakonu Pro vyboru narodnykh deputativ Ukrainy [Offers of the Working Group on improving the electoral legislation regarding the recommendations of the Venice Commission and OSCE / ODIHR on the draft law "On Elections of People's Deputies of Ukraine"]. Available at: http://electioninfo.org.ua/1.php?i=317.

Skidina I. Otsinka efektyvnosti suchasnoi zmishanoi vyborchoi systemy na vyborakh do Verkhovnoi Rady Ukrainy [Evaluating the effectiveness of current mixed electoral system for elections to the Verkhovna Rada of Ukraine]. Available at: http://naub.oa.edu.ua/2012/otsinka-efektyvnosti-suchasnoji-zmishanoji-vyborchoji-systemy-na-vyborah-do-verhovnoji-rady-ukrajiny.

Stavniichuk M. I. (2009), Zakryta vyborcha systema vycherpala sebe ["Closed" electoral system has exhausted itself], Dzerkalo tyzhnia, March 28 April 3, 11: 4.

Ukaz Prezydenta Ukrainy Pro Robochu hrupu z pytann udoskonalennia zakonodavstva pro vybory: 1004/2010 vid 2 lystopada 2010r. [Decree of the President of Ukraine On the Working Group on improving the electoral legislation: No. 1004/2010, 2 November 2010]. Available at:  http://www.president.gov.ua/documents/12434.html.

Shveda Yu. R. (2010) Vybory ta vyborchi systemy. Yevropeiski standarty ta dosvid dlia utverdzhennia demokratii v Ukraini [Elections and electoral systems. European standards and practices for the establishment of democracy in Ukraine]. Lviv: 462.

Serhii BATURA