Wednesday, October 14, 2009

Venice Commission: In review

Review on Law of Presidential Elections

The Venice Commission has published its "Joint Opinion on the Law on Amending some legislative acts on the election of the President of Ukraine adopted by the Verkhovna Rada of Ukraine on 24 July 2009"

A. Nomination and Candidate Registration

14. Articles 9.4 and 56.5 include a restriction on candidacy based upon criminal conviction for any “intentional crime.”

The Venice Commission has rightly criticised the Legislation in its application.  A common criteria in assessing a persons rights to nominate for public office and the seriousness of any offence is to restrict anyone who has been convicted of a criminal offence resulting in a five-year term of imprisonment.  Someone who has committed a serious felony.  As the law stands it could be used to unfairly prevent a candidate who has a minor conviction  from standing or worst still the conviction could be politically motivated.  A minimum five year prison term is generally applied to only serious offenses and is a good means of classification in applying any prohibition in seeking office.  In the end it is the will of the people that decides who should represent them. Article 103 of Ukraine's constitution defines who can stand of public office.

The President of Ukraine is elected by the citizens of Ukraine for a five-year term, on the basis of universal, equal and direct suffrage, by secret ballot.

A citizen of Ukraine who has attained the age of thirty-five, has the right to vote, has resided in Ukraine for the past ten years prior to the day of elections, and has command of the sate language, may be elected as the President of Ukraine. One and the same person shall not be the President of Ukraine for more the two consecutive terms.

The President of Ukraine shall not have another representative mandate, hold office in bodies of state power or in associations of citizens, and also perform any other paid or entrepreneurial activity, or be a member of an administrative body or board of supervisors of an enterprise that is aimed at making profit. Regular elections of the President of Ukraine are held on the last Sunday of the last month of the fifth year of the term of authority of the President of Ukraine. In the event of pre-term termination of authority of the President of Ukraine, elections of t he President of Ukraine are held within ninety days from the day of termination of the authority.

The procedure for conducting elections of the President of Ukraine is established by law.

15. Article 44.2 Political parties be registered for at least one year prior to election day

This is not such a major issue.  As it only restricts the right of Party registration.  A candidate can still run as an independent in the absence of Party registration.  The one year limitation is reasonable but could be reduced to six months.  Fly by the night Party registration should be limited. This is not a point of law, more of an administrative policy.

16. Articles 45 and 51 set out requirements on the procedures to be followed by political parties (and election blocs) when they nominate candidates.

The above articles are reasonable as they provide an outline of a procedure to ensure that any decision of a Party are properly administered and complied with,  the task are not onerous.  More guidelines should be published so as to not allow for any misunderstandings and refusal based on a minor technicality. 

17. Article 49 Electoral Nomination deposit.

The provisions of a high deposit rate (2.5 million hryvina ~ US$0.01 per voter) does not infringe on the democratic rights of citizens or candidates. The requirement for a high deposit is justifiable.  Ukraine has adopted a two-round first-past-the-post voting system,  if no candidate has 50% or more votes then the two highest candidates progress to a second round run-off election. The potential for technical candidates (also referred to as "Spoiler Candidates") running in order to effect the outcome of the poll is considerable.  A high deposit is not unreasonable under the circumstances as it seeks to limit the number of candidates that do not have a serious chance of being elected but never the less  could affect the outcome of the two highest polling candidates. 

The current legislation provides that only candidates that progress into the second round of voting or who win in the first round are refunded their deposit.  Whilst this may be seen as rather high (Some counties have a 15% to 20% criterion) the refund provision is also not unreasonable.  If a candidate sincerely believes that they have a chance of winning the election then this is their choice and assessment. The deposit is designed to try and prevent misuse and abuse of presidential nominations. 

A better alternative would be for Ukraine to adopt a preferential "Instant Run-Off voting (IRV) system” Under a IRV system minor candidates do not detract from other candidates chances of winning the election. Minor candidates can play a positive as opposed to a negative role in that they can advocate a second choice preference. With a singe-round preferential election than a lower nomination deposit and return policy could be adopted. 

The requirement to pay a nomination deposit does not breach fundamental human right guaranteed by international and European human rights instruments. 

The merit behind the Venice Commission's assessment on the nomination deposit issue needs to be seriously questioned and one wonders if this is a political decision more then a point of law. Many Western democracies have required nomination deposits to be made/forfeited in order to try and limit the number of un-realistic nominations - Ukraine should be no different.

18. Provisions for nomination Signatures.

The law has rightly removed this provision as highlighted by the Venice Commission's report.  The issue of a high nomination deposit removes the need for a signatory requirement as they are both designed to try and limit frivolous candidatures (candidates that have no real prospect of being elected to office).  Again this is an issue mainly associated with the first-past-the-post two-round voting system. (See comments above on nomination deposits)

B. Election Administration

21. Article 17.3 Election period reduced from 120 to 90 days.

Again questions arise as to the merit of the Venice commissions assessment in what appears very much to be a political comment not a point of law, Ukraine's Constitution (Article 103) provides for a 90 day election period.  Parliamentary elections have a 60 day window as do many western democracies. The 90 days time line is an administrative time line and more then reasonable.

28. Article 20.9 establishes polling stations of three sizes: small, medium, and large.

3000 is not too large a number for a large polling place that is well managed and staffed. Ukraine also has over 14 hours of voting (8:00AM to 10:00PM) The main concern here is that the elections will be held in the midst of Ukraine's bitter cold winter. The parliament tried to convene the election to take place in late October but was opposed by Viktor Yushchenko. This is an issue that should have been address long ago and Ukraine should look at setting a fixed date for elections as is the case in the USA.

H. Voting Procedures

59. Article 71.4 requires that candidates are listed on the ballot in alphabetical order.

The order of the ballot paper can provide a significant advantage to those candidates located at the top of the ballot paper. Consideration should be given to printing ballot papers in random or rotated order as opposed to a random draw. So as to assist in the counting of the vote, given that this is a national election, each polling place could have a random ordered set of ballot papers that differ from other polling districts. This is a technical issue not of high importance for a National single electorate elections, but if Ukraine adopts local electorates for the Parliament then this should be considered further.

60. The option to vote “against all

The OSCE/ODIHR recommended in their 2004 Election Observation Mission Final Report that “The option to vote “against all” candidates be removed from the ballot.” The final report states that, as a matter of principle, voters should be encouraged to vote for their preferred candidate or party, and thereby take responsibility for the body which is being elected. Therefore, Article 71.4, which requires election ballots to include the option of checking a box indicating “I do not support any candidate to the post of President of Ukraine” should be reconsidered and potentially removed. - Full endorsement What happens if 5% vote "against all"  and the highest polling candidate receives 48% of the vote and the second highest 47%?  

J. Election Disputes

General comment

It is incumbent on any person or oganisation challenging the legality of an election to prove that the overall result and outcome would have change had the error not occurred before the results of the election can be declared invalid.

Mistakes in administration do happen.
It is commonly recognised and accepted that any challenge to the elections results MUST establish that the overall results would have been effected and that the outcome of the election would have changed as a result of any errors in the administration and or count of the ballot. 

It would be unacceptable to invalidate an entire election due to any technical breach or mistake that would not have effected the overall result. i.e. If one polling place was found to have been reported in error but the number of ballot papers recorded would not have effected the overall result of the election then this should not be allowed to invalidate the election as a whole. 

To avoid a court overruling an election on a technicality legislation is required.  An example of this was the decision of the Constitutional court to rule unconstitutional legislation based on the date registered in the proclamation publication. 

The Constitution and laws of Ukraine place time limitations and constraints on the declaration of the election.  Similar constraints applied in the 2000 US presidential election which enabled US Republicans to avoid judicial review of GW bush election in the State of Florida. 

This only becomes problematic, if the results of the election are close and in dispute.  

The conduct of the 2004 Presidential elections failed to establish that the errors identified in the conduct of the election would have changed the overall results.  Statistically a re-run elections produces a swing of 4%  to 6%  to the opposition.   Ukraine's incumbent President, Victor Yushchenko won the re-run ballot with 52% of the vote, which is not under dispute. but the outcome of the second round ballot and the voters intention is still undetermined.