3% Barrier to democratic reform

Ukraine's 3% representation barrier has disenfranchised millions of Ukrainians and is not only undemocratic it's unnecessary.

Roman Marchenko, (Kyiv post) raises a valid concern about Ukraine's electoral system and the barrier to democratic representation.

The problem with the 3% barrier is that the votes are discarded and, as correctly pointed out by Roman Marchenko, millions of citizens disenfranchised in the process.

The preferred alternative is to create smaller localised electorates with each electorate returning nine members of parliament elected on a 10% quota by a system of preferential proportional representation (Meeks method). With this model there is no need for artificial representation barriers and supporters of minor candidates are not disenfranchised as their vote would be redistributed in order of their nominated preference. 40 (or 50) by 9 member local electorates would provide a good workable representational model whilst maintaining democratic values.

The introduction of a single transferable vote (STV) system and smaller localised electorates (each electorate MUST be equal in the number of representatives elected and within +/- 5% in the number of constituents) gives those Ukrainians the right to be represented by someone of their choosing. The Meeks method of counting further adds to the democratic representation. The key being equality and workability. Proportional representation at its purest and most effective.

Lower the 3 percent barrier

By law, parliamentarians are elected on the basis of a proportional system. At the same time, only those parties (blocs) that get at least 3 percent of votes can participate in the distribution of deputies’ mandates.

In the last election we watched a desperate struggle among some political parties for the “cherished” three percent threshold. The Socialists gained 2.86 percent of votes, while the Progressive Socialists got 1.86 percent. These figures mean that more than one and a half million Ukrainians voted for these political forces that are unrepresented in the Verkhovna Rada.

Their votes were distributed among parties which overcame the 3 percent barrier and implemented political ideas that did not correspond to the wishes of hundreds of thousands of Ukrainians – and sometimes even contradicted those wishes. In the 2007 parliamentary election, about 7 percent of electors voted for parties that didn’t gain 3 percent. In 2006, the opinion of 18 percent of electors wasn’t taken into account!

There are great doubts that the 3 percent access barrier is democratic. One of the fundamental principles of democracy is political pluralism – a government that takes into account the will of the majority and to the will of minority. Practically, it means that the political minority can be represented in different state bodies as well as in the parliament.

The rights of the minority can’t be annulled by the votes of majority. But we have a strange situation. The state declares democratic principles in the Constitution, but introduces the high access barrier. This devalues the role of citizens in ruling the country.

In my opinion, even a 1 percent barrier would be undemocratic. I can appeal to the following logic. If 450 deputies of Verkhovna Rada represent 100 percent of electors, then one deputy represents approximately 0.22 percent. Thus, we have come to the very percent of access barrier (0.2 percent) which would mathematically meet the Constitution.

A lower access barrier will entail the Rada splitting into a greater number of parties and the appearance of parties with only a few members. But it will be a fair price for making the Rada more representative and for establishing a real people’s parliament.

Unfortunately, we can hardly expect support for the proposal from the parliament in force. Deputies (from major parties and blocs) want to raise the barrier to higher than 3 percent. Representatives of the Party of Regions and Bloc of Yulia Tymoshenko take great inspiration from the practice of the northern neighbor. In Russia, the 7 percent barrier was introduced to secure victory of the pro-presidential power. Thus, the only chance to save the situation now is to appeal to the Constitutional Court.

In Feb. 26, 1998, the Constitutional Court tried a case on this point. The dispute was over an article of the law that stated: “The lists of candidates to deputies from political parties and electoral blocs of parties which gained less than 4 percent of electors’ votes do not get the right to participate in the distribution of deputies’ mandates. In the opinion of some people’s deputies of Ukraine, this statement contradicted the constitutional principles of the electoral right.”

The Constitutional Court came to rather a paradoxical conclusion: “Deprivation of the lists of candidates to deputies from political parties and electoral blocs of parties which gained less than 4 percents of electors’ votes … is the question of political reasonability, and it is to be settled by the Verkhovna Rada of Ukraine.”

Unfortunately, such a decision cannot be explained any other way than by “political reasonability.”

At the same time, Mykola Savenko, a judge with the Ukrainian Constitutional Court, dissented: “As a consequence of such kind of distribution, political parties and electoral blocs of parties have a greater number of deputies’ mandates than they actually gained from electors.” Such a system, Savenko wrote, “distorts results of voting and [the] expression of electors’ will”.

The only thing we can hope for is another trial in the Constitutional Court, which should be initiated before the next election. Probably new judges will make their decisions not according to the principle of “political reasonability,” as their predecessors of the President Leonid Kuchma era did, but according to the Constitution. In this case, we can really hope that in the future, an unconstitutionally high barrier will not deprive many Ukrainians of their right to elect their representatives.

Roman Marchenko is chairman of the arbitration court at the Ukrainian Law Firms Association, vice president of the Ukrainian Law Firms Association, and a senior partner of Ilyashev & Partners law firm. He can be reached at marchenko@attorneys.com.ua