The spring of 2007 brought Ukraine a political surprise, with early parliamentary elections for the second time becoming a burning issue. Only time can tell whether Ukraine will prove ready for new elections and whether the new Verkhovna Rada really has a chance of becoming better than its predecessor. One can however already say that Ukraine’s electoral system, regardless of the disruption to its traditional timetable, is itself in a state of crisis. If a just cause can only be achieved through decent means, then it would be difficult, if not impossible, to overcome the political crisis without having eradicated the main shortcomings of the country’s electoral system.

It has so turned out that in attempting to determine the real state of Ukraine’s electoral legislation and how it is applied, this commentary and main warnings have organically emerged as ten relatively autonomous theses.

1.  First and foremost, one must note that the principles of the Ukrainian electoral system are set out in Articles 69-74 of the Ukrainian Constitution which make up Chapter III “Elections, Referendum”. According to Article 155, this Section, together with Chapter I “General Principles,”, and Chapter XIII — “Introducing Amendments to the Constitution of Ukraine,” are subject to heightened protection. What this means is that any attempt to remove or modify constitutional articles about elections and referendums must be affirmed via a referendum as a form of direct democracy. Chapters 1, III and XIII are amended according to particular regulations requiring complex juridical procedure.

At the same time, despite this protection of the principles of the Ukrainian electoral system by juridical guarantees at the highest level, in practice nothing in domestic public law changes as quickly and as often as current electoral laws. Almost every election to the Verkhovna Rada and local councils since Ukraine became independent has been held on the basis of new or significantly updated electoral laws. The same must be said about presidential elections.

Aside from the Constitution, Ukrainian electoral system is made up of the following laws:

“On the Ukrainian Presidential Elections” № 474 – XIV from 05.03.99 in the version of Law № 1630-IV from18.03.04;

“On specific aspects of the application of the Law of Ukraine “On the Ukrainian Presidential Elections” during the re-run of the voting on 26 December 2004”, № 2221-IV from 8.12.04;

“On the elections of National Deputies of Ukraine” № 1665-IV from 25.03.04 in the version of Law № 2777-IV from 07.07.05 and “On the elections of Deputies to the Parliament of the Autonomous Republic of the Crimea, local councils and village, settlement and city mayors” № 1667-IV from 06.04.04, with relevant amendments introduced to the Code of Administrative Justice № 2747-IV from 06.07.05, as well as laws № 3253-IV from 21.12.05. № 3368-IV from 19.01.06, № 3437-IV from 09.02.06, № 3519-IV from 14.03.06

In addition, after the adoption of Law No. 2766 from 18.10.01 “On the elections of National Deputies of Ukraine”, the Constitutional Court issued judgments with regard to the constitutionality of various provisions. These were CCU Judgment № 1-18/2002 from 30.01.02 and CCU Judgment № 13-рп/2003 from 03.07.03 which should also be considered part of electoral legislation.

In terms of the development of the national electoral system Ukraine first had a majority system for all councils without exception. This was changed to a majority – proportional system for parliamentary elections, and majority for local council elections. Finally, under the pressure of the best expectations and hopes, as well as due to the “political reform” [constitutional amendments] of 2004, the mixed system of parliamentary and majority system of local elections was replaced by an entirely proportional system.

The initiative was brought to its logical conclusion on a wave of enthusiasm. Henceforth only village and settlement councils are not elected accorded to party lists. As a result, the stability of the electoral system proclaimed in the Constitution has in practice turned into unprecedented fluidity of current electoral laws, reminiscent in dynamic to that of mercury.

In 2004 the Law “On the Ukrainian Presidential Elections” was adjusted before the last round of voting by a law on special aspects of the application of that law. It is known that the early elections to the Verkhovna Rada in 2007 are to be held on the basis of a package of legislative amendments. These involve, for example, the expediency of abolishing the right to vote using absentee ballot papers.

2. Electoral systems used in today’s world are not only majority, proportional or mixed. Aside from the traditional classification, they can also be defined as relatively simply or relatively complicated. Even if elections take place through postal voting (Europe) or pressing buttons or levers on an electronic device (USA), they can be placed in the first or second group. For example, the Ukrainian elections held with the use of ballot papers may be considered relatively simple.

In mathematical language the Ukrainian system of the expression of the people’s will could be called “arithmetic”, in contrast to those systems which can be considered “algebraic”, i.e. not entirely simple. It can be noted that Ukraine has from the outset been modifying a simple system for counting votes although specialists in constitutional law and electoral systems know that the more complicated an electoral system is, the closer the outcome is to the mood and preferences of the electorate. This is of course when the complexity is in line with the level of preparation of the voters and the electoral commissions.

However if at the elections consideration of individual preferences (the change in position of candidates on the candidate lists) is ensured, or other mathematically or organizationally complex systems are used, this demands an educated corps of specially trained electoral commissions. In this case volunteers need to be specially selected, encouraged and trained. It is possibly for this reason that in Ukraine technologies demanding the use of complicated electoral formulae are avoided.

However, even with simplified models for calculation, virtually each election in Ukraine is reminiscent of a political rush-job. It is quite often the case that people are chosen for working at electoral commissions at the last minute. It is not surprising that such people receive insufficient instruction. They also receive inadequate incentive, not commensurate with their actual role, level of responsibility and efforts given. No wonder that at the last parliamentary elections independent observers noted a huge number of mistakes when preparing electoral protocols.

3. A separate problem of the Ukrainian electoral system is the use of a proportional model at local level. With the exception of the majority elections to village and settlement councils, the other local authorities and bodies of local self-government are elected according to a proportional system on the basis of party lists.  At the same time all parties and blocs registered with the Ministry of Justice and the Central Election Commission function on the basis of nationwide programmes. This is the standard requirement of the Law “On political parties in Ukraine” № 2365-III from 05.04.01.

According to legislation, party programmes and charters in Ukraine must reflect the national interest. This in turn means that at elections for bodies of local self-government a centralized political view is effectively transplanted to the local level. Yet the interests of local areas and the regions often fail to coincide with the interests of the centre. They therefore are far from best suited to fit into the constraints of party programmes.

Such discrepancies arise and are exacerbated by the fact also that Ukraine recognizes and actually applies a civic theory of local self-government according to which the first participants in self-government are considered to be the territorial community – an autonomous source of public power which does not belong to the State but is independent (municipal). Under such a system local self-government and its bodies only deal with issues of local importance, while the functions of local authorities are implemented by the local State administrations.

Article 140 § 1 of the Constitution states that “Local self-government is the right of a territorial community — residents of a village or a voluntary association of residents of several villages into one village community, residents of a settlement, and of a city — to independently resolve issues of local character within the limits of the Constitution and the laws of Ukraine”.

The party imperative mandate at local level manifestly runs counter to such a system. As a result, deputy factions in regional and district councils are under double pressure. On the one hand they are governed by a political centre which is little aware of the real situation at local level. On the other, even non-party affiliated deputies of local councils find themselves under the pressure of faction discipline. This has on occasion already led to the formation of truly authoritarian sects – self-sufficient structures which are not however especially constructive from the point of view of implementing local policy.

We thus see that the transfer of political centralization and factional discipline to the local level does not create a constructive working atmosphere in regional and district councils. Voting which is excessively concentrated on party allegiance and the formation of irreconcilable political groupings among deputies result from the flawed structure of the Ukrainian electoral system.

4. Furthermore, the local imperative mandate has distanced individuals with independent thinking and their own political position from taking part in running State and civic matters. Under current electoral legislation, there is simply no place for such people in local representative bodies and in the Ukrainian parliament. As a result by no means all politically substantial individuals are able to fully enter the public sphere and gain access to the media.

As soon as an intellectually developed and self-sufficient individual wants to serve his or her community, s/he has to defer to a local party functionary. This is despite the fact that the person’s stature is often incomparably greater than that of the party activist. The official leader’s ambition conflicts with the “egoism” of the newcomer leaving the latter outside the political process. One way or another, individualism, as a typical attribute of liberal society has absolutely failed to find root in Ukraine. Instead we have a new version of Ukraine “democratic centralism”.

It is not clear what remains for autonomous individuals to do under such a system. Their intellectual and organizational potential is not being channelled which significantly increases the level of political frustration in society. It is galling that in today’s Ukraine, not only the leader of the opposition Yulia Tymoshenko, but also the President Viktor Yushchenko, support the idea of an imperative mandate. Despite the fact that the Parliamentary Assembly of the Council of Europe has tried to steer Ukrainian politicians away from excessive administration, the national electoral system stubbornly thrusts people who think for themselves in a straightjacket of party programmes and plans. The situation continues where parties and factions do not boast of their individual members, but rather where belonging to the clan ensures public attention for a “cog” in the system.

5. The move from a majority electoral to a mixed system and from there to one which is proportional with closed candidate lists has turned Ukrainian elections into voting according to party labels. From the outside it looks as though the “political reform” of 2004 introduced the universal slogan: vote for the party, the party will sort it all out.

The latter has resulted not only in excessive political influence from the centre on the local authorities. Quite often the image of young parties is discredited by the lack of experience or small numbers of their provincial elite. This in turn leads voters to suspect that at the national level the party has no future.

Elections entirely on the basis of party lists at the local level means that voters need to understand the nuances of the political game. Yet this understanding at present in Ukraine, except in Kyiv, is lacking. A proportional system thus requires proper political education in the provinces. Such education in turn demands a level of material wellbeing which people do not at present have in rural areas and small towns.

The inability of the average voter to come to grips with the processes going on behind the party scenes has already led to a revival in Ukraine of a kind of census (limited) suffrage system of democracy. State governance and local self-government are becoming more and more reminiscent of government by the owners on behalf of the owners and in the interests of the owners.

6. At present in Ukraine debate is raging as to whether the imperative mandate is expedient. What is meant here is not the classical form of imperative mandate (where deputies depend on the electorate, on the orders of their voters), but rather on strict party discipline, political centralism in its post-Soviet variant. Unfortunately, the electoral system in Ukraine has not yet managed to become democratic and open. What happened here was that the pyramid of central totalitarianism disintegrated into small pyramids of authoritarianism at the local level. Instead of one “governing and guiding” force, Ukrainians have around 150 parties, with the level of democracy of each remaining that seen during communist times. According to researchers, the right of decision in Ukrainian parties is held by a small elite comprising three or four people.

Such a system does not take into account the fact that in the modern world there are more and more often situations where each participant is right in their own way. On the other hand, the more complex a political problem, the smaller the number of people who are capable of resolving it. All of this suggests an urgent need to understand the value of the individual’s role combined with tolerance and pluralism. Unfortunately, individualized approaches to the assessment and resolution of problems in Ukraine are not encouraged and are seldom observed.

The Ukrainian political elite demonstrate a low level of willingness to understand that in the country’s development strategy there could be several equal variants. Politicians do not view the mosaic nature of Ukrainian society as something suited for practical application. Many of them continue to espouse a form of xenophobia in Soviet style.  It is precisely in Soviet historical features that one finds the roots of the imperative mandate: ostracism of dissident thinkers; electoral lists which were closed for the general public; ideological intractability combined with readiness to use blackmail in voting.

7. Real life is multi-faceted and flexible, yet the Ukrainian political system remains unyielding. One sees a strange mixture in Ukraine of political pluralism with harsh party ideology. And this is while the number of political parties in the country far exceeds the number of themes in world literature.

Many parties are marked by an exaggerated idea of their own significance. Although there are a fairly limited number of strategies for political development in the world (rightwing, leftwing, centrist, a radical wing, “greens”), the ambitions of the political elite in Ukraine bears little correlation to their popularity ratings. This is not surprising since even minimal legitimacy enables a Ukrainian politician to head the Verkhovna Rada. Furthermore, those parties boasting the names of the former Speaker of Parliament, the Head of the Supreme Court or the President, were not able to cross the vote threshold. The current preferences of the Ukrainian voters are in marked contrast with the self-assessment of the former leaders of the country. On the one hand the political tastes of the electorate undergo rapid change in Ukraine, on the other, in order to combat this the authorities resort to constant re-editing of the national electoral system.” Citizens have the right to participate in the administration of state affairs, in All-Ukrainian and local referendums, to freely elect and to be elected to bodies of state power and bodies of local self-government”.

In actual fact, under the new electoral system in Ukraine it is precisely this free access by citizens to passive electoral law which no longer exists. It is paradoxical, but in Ukraine we have a situation where one can stand for the office of President by paying a bond and putting oneself forward, yet one can only become a candidate for deputy of a district country by being included on a party list.

9.  The current version of the Law on the elections to the Verkhovna Rada was drawn up especially for the 2006 parliamentary elections. At that time the legislators aimed at dealing with the shortcomings of the previous law which had not, they believed, sufficiently envisaged legal guarantees against vote-rigging and to ensure transparency of the people’s expression of will. The updated law was marked by detailed regulation of the electoral process with, for example, a complicated structure for electoral commission protocols. Unfortunately in practice the procedural guarantees were unable to avert basis buying and selling of places on the candidate lists.

A no less important failing of the law was its excessive complexity. The legislators tried to ensure efficient elections, however in their wish for perfection they lost any sense of measure. As a result, the juridical attributes of this large-scale normative act have made it less a law, and more a manual on the ideal training of personnel, “Bureaucracy according to Max Weber”.

Yet it is precisely according to this law that electoral commissions were to be made up of volunteers who, for a number of objective and subjective reasons, were unable to fully master the complex procedural aspects of their regulations. This led to confusion in completing protocols and to unwarranted suspicions that commission staff had been corrupted, and it prompted appeals against the outcome in many electoral polling stations in the courts.

10.  In electoral systems the difference between beneficial and harmful is extremely often felt at the level of legal nuances. Elections must therefore have maximum balance of procedures, reasonable sequence of actions both those of voters and of the electoral commission personnel. This requirement moreover does not only apply to electoral commissions, but to the Central Election Commission itself.

If one looks at the Ukrainian electoral system from this viewpoint, it becomes clear that it remains constructed on the principle of mutual distrust between the participants in the electoral process. The system is for this reason doomed to failure.  Only confidence in “political individuals”, backed by the proper guarantees of freedom, is capable of uniting separate individuals into a political community.

At least it is on this axiom that the moral foundation of modern constitutionalism is constructed. For this reason not only democracy and freedom, but also trust must become the objective in the further development of Ukrainian electoral legislation.

Vsevolod Rechytsky,

constitutional expert for the Kharkiv Human Rights Protection Group