On November 17, the Ukrainian parliament adopted a new electoral law for the conducting of the next parliamentary elections in October 2012 http://portal.rada.gov.ua/rada/control/en/publish/article/info_left?art_id=290355&cat_id=105995. So far, its draft is available only in Ukrainian http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=41814 . Besides some novelties and modifications, the law essentially reestablishes the mixed system under which half of the deputies are elected through first-past-the-post elections in single-member districts, and half through proportional representation in nationwide multi-member districts. Such a system had been employed in Ukraine until the Orange revolution but was replaced eventually with a purely proportional system of elections from the nationwide party lists.
Back in 2004, the reason for change was two-fold. First, it intended to encourage the development of the party system, promote coalition building in the parliament and in line with amendments to the constitution render the government more dependent on the specific parties and the parties more responsible for the government. The second goal was even of greater importance. The earlier mixed system, especially its “majoritarian” part, employed in Ukraine until 2004, turned out to be highly susceptible to all sorts of manipulation and abuse of power by unscrupulous authorities. The proportional system, instead, was to reduce corruption both in electoral districts where government-connected oligarchs bribed voters, and in the parliament where the “independents” (typically local officials or businessmen) became easy prey for governmental blackmail and bribery.
The 2002 parliamentary elections provide a graphic example of how the majoritarian system benefited the authoritarian government of Leonid Kuchma. Then, despite all the dirty tricks, the pro-presidential parties made up only 20% of votes in the nationwide district, whereas their opponents, Viktor Yushchenko’s and Yulia Tymoshenko’s blocs, won 30%. Yet, the second half of the parliament was made up of the “independents” from single-member districts, so, predictably, most of them succumbed to the multiple arguments provided by the omnipotent presidential administration, and joined the incumbents.
To make bad things worse, the Ukrainian version of the majoritarian system does not require the winner to get 50+ per cent of votes in his/her district. In the first-past-the-post elections reintroduced in Ukraine, victory can be secured by sheer plurality, not necessarily a majority of votes. It means that pro-governmental candidates, however unpopular, can win elections with 20% of votes and less if they manage successfully to split opposition (and votes), produce as many fake competitors as possible, and eliminate the most dangerous rivals by decisions of fully obedient courts subservient to the authorities.
This is exactly what happened in last year’s local elections where the government carried out a dry run of the new-old system. For instance, in the proportional representation part of the election to the Kyiv Regional Council, the Party of Regions got 26 percent of the vote. Yet, in the first-past-the-post contests, almost all of the party’s candidates won. As a result it controls 65.5 percent of the regional council http://www.tol.org/client/article/22303-blocking-out-its-rivals.html.
One may argue, of course, that the first-past-the-post system should not be a big problem for opposition if they manage to unite against the incumbents or at least to agree on a common single candidate in each district. There are two hurdles, however, of both an objective and subjective nature. First, democratic forces are never as consolidated and monolithic as authoritarians who care little for ideological subtleties and principled debates but do care a lot about mafia-style discipline supported by enormous resources, patronage networks, elaborate blackmail, and coercion. And secondly, even if the democrats manage to unite, the authoritarian incumbents are skilful in splitting them, multiplying the bogus alternatives and, in some cases, eliminating the potential or even actual winners by courts under the most ridiculous pretexts.
To further undermine the opposition’s ability to unite, the new electoral law bars electoral blocs from participation in elections. This brings an additional advantage to the authoritarian Party of Regions and delivers, in particular, a serious blow against the political force of Yulia Tymoshenko that is broadly known as her eponymous bloc, while her specific political party “Batkivshchyna” (Fatherland), even though the strongest within the bloc, is largely unknown. The increase of the electoral threshold from 3 to 5 percent also targets the opposition, which, unlike the incumbents, consists of many small parties unable to surpass that total. As a result, all the votes of the opposition parties that fail to reach the threshold will be distributed proportionally among the parties that manage to do it. In other words, the Party of Regions will get a significant share of opposition votes that otherwise would never go to them.
Remarkably, the Party of Regions in opposition was fairly satisfied with the proportional electoral system as well as all other amendments to the constitution http://www.pravda.com.ua/articles/2011/11/17/6760394/. It is not that the system was perfect. Its major flaw was voters’ inability to influence the sequence of candidates on party slates. This made parties akin to closed political clubs where the leaders had too much power and were prone to arrange the electoral party lists in a voluntaristic fashion, evaluating prospective candidates by their financial contribution rather than moral, political, or professional merits. But the problem was not insurmountable, as the experience of many consolidated democracies, e.g. neighboring Poland, graphically demonstrates. To improve the proportional system, both Ukrainian and international experts suggested the so-called “open lists,” which would provide people with an opportunity to vote not only for a specific party but also for the preferred candidate on the party’s list.
Ironically, Viktor Yanukovych himself supported this change during his 2010 presidential campaign but eventually backtracked to his current position of support for a mixed electoral system. The reason for this volte-face was allegedly a lack of support for the “open lists” system in the parliament.However, this argument is as preposterous as the president’s claims that Ukrainian courts are impartial and independent and he has no leverage to influence them. Even more laughable is the assumption that the president has no influence over his own Minister of Justice Oleksandr Lavrynovych, who dares today to ridicule his boss’ project from 2009: “Imposing open lists is a mockery of law, common sense, and citizens. It’s lobbied for by the opposition, while we offer a better mechanism, whereby people choose their own members of parliament” http://www.tol.org/client/article/22303-blocking-out-its-rivals.html.
All those who remember Yanukovych’s U-turn on the issue of Ukraine’s NATO membership (in 2002-2004, when he was Prime-Minister, he had no objections to it), should not be surprised by his latest opportunistic move. Neither the president nor his Party of Regions has ever had any political principles or ideology besides strong commitment to absolute power that can be converted into wealth and, in turn, more secure absolute power. They have no strategy, and all their moves are determined by short-term political-cum-business expediency. In this case, the ultimate goal of the Regionnaires is clear: not to improve the existing electoral law but, rather, to introduce a new law that offers them benefits and disadvantages the opposition.
As early as March 2011, the American experts from the National Democratic Institute and the International Republican Institute suspended their cooperation with the Lavrynovych-led working group created back in 2010 by the president with the stated task to amend the elections law, and make it more coherent, transparent and acceptable for the both government and opposition. The Americans discovered that they were simply manipulated by the Ukrainian authorities, which were intent on legitimizing, with a help of reputable foreigners, their quasi-legalistic machinations.
More recently, the European Commission for Democracy through Law (Venice Commission) and OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) submitted their detailed and rather critical analysis of Lavrynovych’s project, which contained a remarkable passage regarding the card-sharp tactics of the Ukrainian lawmakers: “The electoral system chosen in the draft law is not the one discussed by the Venice Commission representatives during their meetings with the Ukrainian authorities and not the one recommended by the Resolution 1755 (2010) of the Parliamentary Assembly of the Council of Europe” http://www.venice.coe.int/docs/2011/CDL%282011%29059prov-e.pdf.
And finally, the International Foundation of Electoral Systems (IFES) sent an equally strong message to the Ukrainian authorities in its own expert analysis of proposed changes: “IFES notes that the draft law was developed in an atmosphere of considerable uncertainty and mistrust between the Government of Ukraine, political parties and civil society. Numerous concerns regarding the draft law, and the process by which it was created, were raised to IFES by members of opposition parties, civil society, electoral experts and the international community… IFES shares the concerns expressed by many Ukrainian and international stakeholders regarding the government’s decision to change the electoral system in the present political climate. Electoral systems can always be improved for the better, but given the lack of consensus in the country; the significant impact of the proposed changes on the political landscape; and relatively short timeline for implementing these changes, it is highly questionable whether it makes sense to change the system at the present time. While the newly proposed system may be a legitimate one, there is no major flaw in the current system that would require an immediate change without further discussion” http://ifes.org/Content/Publications/Papers/2011/Review-and-Analysis-of-the-Draft-Law-on-the-Election-of-Peoples-Deputies-of-Ukraine.aspx.
Even more surprising is that the new law was approved ultimately by 366 MPs (of 450 in the Ukrainian parliament), i. e., not only by the ruling majority but also a major part of the opposition. It seems that supported the lesser of two evils–-the draft law with some minor concessions for the opposition instead of the genuine, much more discriminatory draft that would have been passed by the Party of Regions anyway. This is probably true since the President and his allies have enough votes in the parliament to pass any decision they need. Yet, the reality is that the Party of Regions can muster a pro-presidential majority in the next parliament with or without the insignificant concessions they have made to their opponents. It is just a matter of a few seats they may not get in elections and a few extra millions they would have to spend eventually in the parliament to buy the needed number of “independents.” But this is quite a reasonable price to pay for the legitimization the new law, both domestically and internationally, with the precious help of the opposition.
Once again, the Ukrainian democrats “shot themselves in the foot,” helping the Regionnaires to dismantle the last achievement of the Orange revolution: the election system that precluded, more or less successfully, large-scale falsifications and vote buying. Now they may lay bets only on whether the Regionnaires can muster a simple majority (226+) in the future parliament or the qualified majority (300+) that would enable them to change the Constitution and, in 2015, to elect the president, with all his enormous powers, by a simple parliamentary vote. My bet is that this is exactly the main goal of Viktor Yanukovych and the major rationale of virtually all his policies to date.