On May, 20, a plenary session of the Grand Chamber of the Constitutional Court of Ukraine took place on the motion from 45 people’s deputies who qualified as unconstitutional the lack of majoritarian election system at parliamentary elections. During the open part of the session, the members of the proceedings took the floor, followed by the involved participants – people’s deputies, representatives of the Central Election Commission, and experts from dedicated NGOs. Olha Aivazovska, Chair of the Board at the Civil Network OPORA, was among them. She presented the organization’s stance on that matter.

Find below the full text of her address:

Book Three of Electoral Code does not contradict the Constitution of Ukraine, while the method and timeline of adopting changes create proper conditions for legal certainty and the building of legitimate expectations about the consequences of proportional system with open lists. Please, be reminded that the next regular elections are due in 2023. The Code of Good Practices of the Venice Commission stipulates that certain formula in organization of election process shall remain unchanged, such as election system, territorial organization of elections, methods of building election commissions – and the limitation refers to one year. The motion includes certain arguments that copy the full text of the version of the Code of Good Practices in this part. In my view, it is about the conservation of election system, which cannot be acceptable as the political context is changing. Certain global trends speak of the compliance of proportional election system, at least in electing national authorities, the legislative branch in order to build the effective Government to fully operate in the future. The Constitutional Court has upheld a consistent legal position on election system throughout its history; its design lies within the political doctrine, and it is within the competence of Ukrainian parliament.

We do not agree with the fact that the suggested formula of single regional election lists contains elements of the usurpation of power. In fact, since the Code provision does not undermine the exclusive right of Ukraine’s citizens to build representative authorities, the freedom of elections has been maintained. On the other hand, the concept of usurpation implies forced illegal approach of obtaining or keeping powers of authority. That is why it is rather a politological term, in this case.

Election system shall ensure conditions for political pluralism, and candidates do not need to become members of parties. With the variety of parties and democratic governance system, citizens can exercise their active and passive suffrage to full extent and in equal conditions, even compared with the parallel election system that was last applied in 2019. Let me recapitulate that Democracy Index of The Economist 2020 identified Ukraine as a full open developed democracy, specifically in the context of election process because it is totally competitive. The Index accounted for the recent local elections that were mostly run under the proportional election system with open lists.

In terms of parallel system and equal conditions, or direct suffrage and its exercise, it actually questions the standards, rather than the proportional system with open lists, as applied in Book Three of the Electoral Code. It is because citizens vote differently for a candidate standing for elections in a majoritarian district and under a proportional system. Some citizens who live or stay abroad on election day do not have any options to elect the majoritarian deputy to represent them. Furthermore, the links with the constituency under the majoritarian system and the proportional system are different. Therefore, I believe, the parallel election system more heavily infringes on the principle of equality and the standards in this part, including the direct suffrage. Because when a voter votes for closed lists, under the proportional system (also applied in 2019), they vote for the entire list as a whole, with no individual direct vote for a certain candidate. On the other hand, Book Three of Electoral Code sets the conditions for individual voting and for expression of civic position but sets equal conditions, both for candidates (as everyone is in equal legal conditions) and for voters (as everyone receives equal number of ballot papers).

It is our belief that election system derives from the clearly defined public interest in favour of proportional system with open lists, according to the data of representative surveys run by the “Democratic Initiatives” Fund. The public interest cannot go secondary compared with the individual political interests of the so-called political actors, that are also acceptable, but we need to strike a social balance. If 37% of citizens support proportional system with open lists, then the following most highly ranking system in the representative survey is the majoritarian one. In Ukraine, it enjoys support only among 13% of citizens. On the other hand, the formula of electing a majoritarian deputy has multiple times showed in practice that in Ukrainian political context it was inefficient. Ukrainian state and society have been maintaining the dialogue for 10 years now; they discussed the introduction of proportional system with open lists. The motivation behind the idea is in the need to reject the majoritarian system as corruption-genic and less fit for fair and free elections, which has been multiple times evidenced in practice.

Legal certainty and legitimate expectations have been also confirmed by the fact that the Electoral Code, including Book Three, was developed during two terms of the Ukrainian Parliament. Two separate working groups were established. By the way, the second WG is now replicated in the parliament after the recent local elections, and continues its work to improve the electoral framework. Over 50 public meetings were conducted of these working groups. That is why legitimate expectations, also confirmed by sociological data, have been built by Ukrainian society. Both legal and juridical certainty is also a response to the demand and processes that have been covered rather extensively for the public during the two convocations of the Ukrainian parliament.

Please, consider a politological aspect. Of the 45 people’s deputies who signed the motion, there was only one person who voted against the adoption of the Electoral Code, including Book Three, both on December, 19, 2019, and during the vote about Book Four that also includes provisions of this election system. However, the MPs did not appeal to the honorable Court about Book Four in this motion. One person only – who voted against. At the same time, 67% of deputies signing the motion voted in favour. In other words, they realized the entire meaning of this election system and supported it, which looks not so much logical to me.

Since 2007, the Venice Commission has been suggesting introducing the proportional system for Ukraine based on several regional districts. It could help avoid the shortcomings in the proportional system in a single national constituency (i.e., closed lists), and also in the mixed parallel system in an individual majoritarian one. The Parliamentary Assembly of the Council of Europe issued a 2010 Resolution No 1755, where in para 7.1.1, they recommended the following: “electoral reform shall provide not only for the adoption of a new electoral code but also for the introduction of a new election system.” Furthermore, they repeated their recommendation mentioned before about the adoption of the election system that includes the proportional system based on open lists and several regional constituencies. Equal suffrage is thereby ensured, in my deep conviction, with account for Article 36 of the Constitution. 

In order to be nominated by a political party and registered as a candidate, you do not need to be the member of a political party. With regard to the context of Ukrainian government system and its current status, we must state that Ukraine has political variety, Ukraine has pluralism. Moreover, the parliament experiences the processes to simplify and liberalize the registration system for political parties. As of January, 1, 2021, the Ministry of Justice informed about 349 registered political parties. Upon adopting the new version of the law on political parties, I am deeply convinced, the number will keep growing because the objective is to liberalize the entire procedure.

European Court of Human Rights, in line with the provisions of the Human Convention for the Protection of Human Rights and Fundamental Freedoms, developed the practice that enables the state to use a rather broad freedom of judgment in the process of constructing election system, as soon as free expression of the will of the people is ensured in building a legislative body, regardless of the system type applied (case “Matthews v United Kingdom”). Later, the ECHR emphasized that in a modern democratic world, there are many approaches to organize and administer election systems, and many differences, also in historical development of a political culture of European states. That is why every state is entitled to build their own vision of democracy (case “Hirst v United Kingdom”).

The statements entail certain conclusions. When the international institutions and the Ukrainian society speak of corruption proneness of the majoritarian component, the issue of self-nomination may be regulated in a different way, such as through the lists of independent candidates, which is now under discussion in the respective Working Group of the Ukrainian parliament. And I cannot ignore the fact.

I am not going to reiterate what the honorable judges perfectly know such as the Decision of the Constitutional Court of Ukraine on similar topics and matters, related to the theme of this motion. It would suffice to say that the wording of provisions of the Electoral Code and any other regulatory act is important in terms of complying with legal certainty as a requirement, among others, for the rule of law. Upon the whole, as shown in many legal opinions of the Constitutional Court and the Venice Commission, legislators shall pursue clarity and understandable wording of legal provisions.

To conclude, I would like to say that in terms of evaluative judgements or statements of the honorable people’s deputy who represents the motion, and speaks of the concept of legitimacy of expectation or legal certainty through the prism of understanding the final results of elections. Whereas international reports and documents speak of the clear procedures that shall be understandable and formulated within the law. Democracy is certainly an unpredictable thing, that is why election results cannot be known in advance, in our democratic country, in contrast to authoritarian regimes, also next door to us.

Video from the address is available on YouTube channel of the Constitutional Court of Ukraine (from 3:11:04): 

You can find the full text of OPORA’s opinion on the motion at the link: https://www.oporaua.org/news/parliament/22996-ksu-publichno-rozgliane-podannia-45-nardepiv-shchodo-oskarzhennia-vidmini-mazhoritarki 

Please, be reminded that on  February, 12, 2021,  the Constitutional Court received a motion from 45 people’s deputies on the compliance of certain provisions of the Electoral Code with the Constitution of Ukraine. The authors of the motion requested to recognize Book Three “Elections of People’s Deputies of Ukraine” (Articles 133-191 of Parts ХХІІІ — ХХХІ), subpara 2 of para 2 of Part ХХХХII “Final and Transitional Provisions” of the Electoral Code of Ukraine as such that do not comply with the Basic Law. The motion said that it was signed mostly by majoritarian people’s deputies from the “For the Future” faction. Furthermore, the list included members of the “Servant of the People”, such as Olha Vasylevska-Smahliuk, Oleksandr Kunytskyi, Heorhiy Mazurashu, and Maksym Buzhanskyi.