Application of the new electoral framework provokes broad discussion on the level of election administration bodies and expert community. Due to legal ambiguity, the issues arose about the scheduling of the first elections of deputies to district councils and the first local elections in the amalgamated territorial communities (hromadas). OPORA prepared a brief explanation for the most resonant aspects of scheduling the first local elections in 2020.
Scheduling of the first local elections of the deputies to rayon councils
On August, 8, 2020, the CEC filed a request to the Committee of Verkhovna Rada on the Organization of State Power, Regional Development, and Local Self-Governance for explanations on the scheduling of the first elections to district (rayon) councils. The Commission asks the Committee to explain the following two questions:
- Who is authorized to request from the CEC the scheduling of the first local elections to district councils;
- Has the decision been made on the formation of such councils due to the approval by Verkhovna Rada of the Ruling “On Establishment and Liquidation of Rayons”.
Central Election Commission motivated the impossibility to schedule the first local elections to district (rayon) councils with the lack of mandatory legal requirement for their scheduling, such as the request from an authorized body on the grounds of a decision on the formation of oblast and rayon councils.
As of today, the CEC has not received any requests from the competent authority about the scheduled first elections of deputies to district councils. Provisions of the Electoral Code do not offer any definitive answers to the question about which specific authority may be considered in this case as the authorized body to file the request to the CEC. The request, according to the Code, shall be filed in accordance with the decision about the establishment of district councils. Instead, no establishment of district councils has ever been approved by any decision. The Ruling on the Establishment and Liquidation of Rayons was approved by the Verkhovna Rada, not by the Cabinet of Ministers or the Ministry for the Development of Hromadas and Territories of Ukraine.
Provisions of the Electoral Code on approving the decision on the establishment of district councils does not correspond to the provisions of the Constitution of Ukraine. The latter does not provide for the need to approve the decision on the establishment of district councils. The Basic Law only stipulates the procedures for their formation by voters of the respective territorial hromadas. In addition, the adoption of the decision is not envisaged, since the institute of district councils as such is established on the grounds of Constitutional provisions.
The CEC confirmed the fact of legal uncertainty, and applied for the dedicated parliamentary committee to request explanations to the question about which authority shall be considered authorized to make a decision about the establishment of district councils in the interpretation of the Electoral Code, and which authority shall be empowered to file a request about the scheduling of the first elections of deputies to district councils.
Part 4 of Article 140 of the Constitution of Ukraine enshrines the functioning of district councils, along with oblast concils, as local self-government bodies that represent joint interests of territorial hromadas of villages, townships, and cities, and empowers them with the constitutional authority (part 2 of Art. 143 of the Constitution of Ukraine). In this respect, rayon councils cannot be treated beyond the system of local self-government. On the level of principles of the constitutional order in Ukraine, local self-government is enshrined and guaranteed (Art. 7 of the Basic Law). It shall be exercised through local self-government bodies. Representative bodies of local self-government are the village, township, city, rayon (district), and oblast councils, which formation shall be done upon the results of popular vote through elections; which under Article 69 of the Constitution of Ukraine is a form of direct democracy. Thereat, the will of the people shall be secured through fixing the term of office for officials on the constitutional level.
Pursuant to part 1 of Article 141 of the Constitution, rayon councils shall include deputies elected by the rayon citizens on the basis of the universal, equal, direct suffrage through the secret ballot. The term of office of rayon councils, which deputies were elected at the regular elections, shall be five years. Termination of authority of a rayon council shall result into the termination of office of deputies of the respective council.
The respective provision of the Constitution was interpreted by the Constitutional Court of Ukraine (Ruling of the Constitutional Court of Ukraine on the case under the Constitutional submission from the Kyiv City Council about the official interpretation of provisions of parts one and two of Article 141 of the Constitution of Ukraine dated June, 4, 2009, No 13-рп/2009). The Constitutional Court concluded that the Constitution enshrines the principle of regularity for having elections, which application is an important element of their democracy, according to international acts. Moreover, the Court stated that upon the results of regular and extraordinary elections, the legitimate composition of village, township, city, rayon and oblast councils shall be formed, and the head of a village, a township, or a city shall be elected. Provisions of par. 30, of part one, of Article 85 of the Basic Law of Ukraine empower the Verkhovna Rada of Ukraine to schedule regular and extraordinary elections to local self-governments. On the basis thereof and with account for the legal nature of elections to local self-government as one of the key forms of direct democracy, the Constitutional Court of Ukraine believes that their scheduling, upon the available legal grounds, shall be binding for the Verkhovna Rada of Ukraine, except for cases provided by the constitution and the laws of Ukraine.
Therefore, on the basis of the term of office for rayon councils set in the Constitution, other binding documents for the Central Election Commission may also be the rulings on the scheduling of the first elections to rayon councils on October, 25, 2020, pursuant to par. 2 of part 7 of Art. 194 of the Electoral Code.
Proceeding from the obligation to provide for the exercise and protection of voting rights for the citizens of Ukraine enshrined in par. 1 of part 1 of Art. 17 of the Law of Ukraine “On Central Election Commission” and in the text of the oath of the CEC members (part 1 of Art. 8), the CEC shall take all the measures provided by the law, including also to immediately file a request to the President of Ukraine, the Verkhovna Rada and the Cabinet of Minister of Ukraine to provide for the legislative regulation of the issue, and to schedule the first elections to rayon councils, under the law, by August, 15.
On scheduling the first elections of deputies to local councils, and of village and city heads
On August, 8, 2020, the Central Election Commission approved the Ruling No 160 “On the First Elections of Deputies of Village, Township, and City Councils of Territorial Hromadas, and the Respective Village, Township, and City Heads for October, 25, 2020.” The Commission scheduled the first elections in all territorial hromadas, without exception, even where the elections have already taken place under the decentralization action.
The decision to schedule the first local elections in all hromadas caused a serious discussion in the expert community. There is no uniform attitude to the scheduling of the first elections to councils of village, township, and city hromadas which administrative boundaries have not changed, and where the first elections have already taken place. On the one hand, the Central Election Commission motivated their decision by the fact that the hromadas are formally the newly established administrative-territorial units.
According to par. 1 of part 7 of Art. 194 of the Electoral Code, the first elections of deputies to village, township and city ocuncils, and heads of villages, townships, and cities shall be scheduled by the Central Election Commissions upon the respective request from the authorized body.
The Central Election Comission received the Resolution of the Verkhovna Rada of Ukraine dated July, 17, 2020, No 807-ІХ “On Establishment and Liquidation of Rayons” and the ruling from the Cabinet of Ministers of UkraineNo 707-730 on setting administrative centers and the areas of territorial hromadas in certain oblasts, as well as the information from the Ministry for the Development of Hromadas and Territories of Ukraine with the list of village, township, and city councils.
Pursuant to the Law of Ukraine “On Introducing Changes to Certain Laws of Ukraine on Identifying Territories and Administrative Centers of Territorial Hromadas,” the Cabinet of Ministers of Ukraine shall submit decisions on idenitfying administrative centers of territorial hromadas and setting areas for territorial hromadas to the Central Election Commission so that it could approve a decision on scheduling the first local elections of deputies to village, township, and city councils and heads of village, township, and city heads of the respective territorial hromadas. At the same time, according to part 9 of Article 194 of the Code, the central executive authority that provides for policy making and exercises the government’s regional policy, and the state policy in the field of local self-government, territorial organization of power and administrative-territorial order (currently, it is the Ministry for the Development of Hromadas and Territories of Ukraine) shall provide information to the CEC with the list of local councils detailing the administrative-territorial units they include at the regular local elections.
To the relevant requests of the CEC, they sent the list of all territorial communities, including those that have already had the first or additional elections, according to the Law of Ukraine “On Voluntary Amalgamation of Territorial Hromadas,” which territory remained unchanged.
The CEC approached the requests as such that have been managed by the authorized body, and thus approved the Resolution on scheduling the first elections with account for all villages, townships, and cities. However, since the territory of the hromadas has not changed, and also because their preliminary amalgamation was only repeatedly confirmed in 2020, by the relevant ruling of the Cabinet of Ministers of Ukraine, the expert community voices the need to have the regular elections in these hromadas, rather than the repeated first elections.
OPORA hereby urges the relevant authorities to invest maximum effort into securing voting rights for citizens and to create due conditions for local communities to exercise their right for local self-governance.
In order to provide for transparency of decisions in the area of voting rights of citizens, OPORA hereby recommends the following:
For the Central Election Commission
- To request from the legislative initiative subjects the development of the relevant changes to the Electoral Code that would enable local elections to rayon councils.
For the Committee of Verkhovna Rada on the Organization of State Power, Regional Development, Local Self-Government, and Urban Planning
- To immediately initiate the expert discussion of options for legislative regulation of the process of scheduling local elections to rayon councils; on the basis of the conclusions, to develop the draft law on introducing changes to Electoral Code that would enable local elections to rayon councils.
- To refrain from actions that are not covered by the authorty of the dedicated Committee, specifically in part of interpreting the Code provisions.
For the Verkhovna Rada of Ukraine
- To approve the draft law on introducing changes to the Electoral Code that would enable local elections to rayon councils.