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IFES Ukraine

The International Foundation for Electoral Systems

President Zelenskyy issues a soft veto to the Election Code

On September 14, 2019, the President of Ukraine vetoed the Election Code, which was adopted by the previous convocation of the Verkhovna Rada on July 11. After it was signed by now ex-speaker of the Parliament Parubii on August 27, the President had 15 days to review the code and either promulgate (sign) or veto it. He opted for the latter. In an explanatory note, President Zelenskyy provided the reasoning for his veto, stating that some portions of the Election Code contradict the Constitution of Ukraine and that the Code, in his opinion, was adopted in violation of the Parliament’s own Rules of Procedure. The Code will now go back the Parliamentary Committee for State Power, Local Self-Government and Regional and Urban Development for rework based on the President’s explanatory note. The Committee has 30 days to revise the text of the Code.

The Election Code was drafted over several years and intends to harmonize procedures for all electoral events – presidential, parliamentary and local elections – as recommended by the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) and the Council of Europe’s Venice Commission. On July 11, less than two weeks before parliamentary election day, it was repeatedly put on vote in the outgoing parliament and only managed to gain support from enough MPs to pass in the 17th vote following amendments to the Code that substantially changed the nature of the electoral system for parliamentary elections, as previously reported by IFES.

The explanatory note attached to the veto is quite detailed and outlines what amendments the President would like to see introduced in the Election Code. Commenting on the proposed electoral systems, the President explains that the regional open-list proportional system with top-10 reserved seats for all party lists that surpass a five percent threshold in the nationwide constituency for parliamentary elections is more akin to a closed-list proportional system and does not give voters full right to choose who will represent them in parliament. He also criticizes the Election Code for not sufficiently protecting the electoral rights of internally displaced persons and persons with disabilities.

IFES welcomes the President’s take on the Election Code and his intention to improve it. The set of amendments to the Code outlined in his explanatory note contain important provisions that IFES and its Ukrainian civil society partners have long recommended as part of electoral legal reform in Ukraine. These include: a rule that requires parties that replace candidates and MPs to appoint a candidate or MP of the same gender to guarantee a robust gender quota; enfranchisement of IDPs in all types of elections including local elections; accessibility of the elections for people with disabilities; and simplification of the public procurement rules for CEC in the election process.

Olha Ayvazovska from Civil Network OPORA publicly welcomed the President’s veto. She agrees with the President that the Election Codes needs significant improvements for full-fledged protection of citizens’ electoral rights and adaptation of some election procedures to the challenges of a modern society.

It can be expected that the parliamentary committee will now establish a working group under its subcommittee on electoral reform to elaborate on the proposals contained in the explanatory note to the President’s veto. IFES hopes the process of introducing amendments to the Code will be transparent and inclusive. IFES stands ready to take a leading role in ensuring that the final Election Code is well designed, in line with democratic standards and best practices and considers recommendations of international and domestic observer organizations.

Among potentially controversial issues not addressed in the President’s explanatory vote is his position on making the number of parliamentary seats to be allocated to each of the 27 envisaged subnational constituencies dependent on voter turnout. The international practice used by most European countries is to base the number of seats on the size of the population or the number of voters in the constituency. The President has also not stated if he wants to change the Code’s date of coming into force, which is currently set at December 1, 2023. If Ukraine is to avoid another local election in October 2020 with council members elected under the unpredictable St. Petersburg electoral system, parliament must act swiftly. The Venice Commission recommends that substantial changes to the election law should not take place during the year before the election it applies to takes place.*

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