Yesterday, on April, 8, the Constitutional Court of Ukraine held they would consider in full session and in oral argument the claim from 45 people’s deputies on the constitutionality of the cancellation of self-nomination and the majoritarian electoral system. The hearing date will be informed further.
Thus, on February, 12, 2021, the Constitutional Court received a claim from 45 people’s deputies as to the compliance of certain provisions of the Electoral Code with the Constitution of Ukraine. The claimants requested to recognize Book Three on “Elections of People’s Deputies of Ukraine” (Articles 133-191 of Parts ХХІІІ — ХХХІ), subclause 2 of clause 2 of part ХХХХII “Final and Transitional Provisions” of the Electoral Code of Ukraine per se that do not comply with the Fundamental Law. The claim stated that it had been signed mostly by the majoritarian deputies from the “For the Future” party. Furthermore, the list of signatories includes the members from the “Servant of the People, such as Olha Vasylevska-Smahliuk, Oleksandr Kunytskyi, Heorhiy Mazurashu, and Maksym Nuzhanskyi. The authorized claimant of this constitutional claim is Anton Yatsenko elected in constituency No 200 in Cherkasy Oblast.
On March, 18, Civil Network OPORA received a letter signed by Volodymyr Moysyk, a reporting judge for the constitutional claim, requesting to express the organization’s position on matters covered in the constitutional claim.
On April, 6, OPORA wrote and sent to the Constitutional Court their legal opinion stating that the proportional electoral system as a type does not contradict the Constitution of Ukraine. The analysis of the constitutional claim shows the lack of justified evidence behind the arguments stated by the people’s deputies as to the non-compliance in general with the Constitution of Ukraine of Book Three of the Electoral Code of Ukraine. Self-nomination may be legally enforced under any electoral system, also within the proportional system foreseen by the Electoral Code of Ukraine at the parliamentary elections, such as through the introduction of lists of independent candidates.
Please, find below the full text of OPORA’s opinion.
Opinion of the Civil Network OPORA
on the compliance to the Constitution of Ukraine (constitutionality) of Articles 133 – 191 of Parts ХХІІІ - ХХХІ, subclause 2 of clause 2 of Part ХХХХІІ “Final and Transitional Provisions” of the Electoral Code of Ukraine
Civil Network OPORA received a letter 356-005-17/788 dated 18.03.2021 and signed by V.R.Moysyk, a reporting judge, on the constitutional proceedings as to the compliance with the Constitution of Ukraine (constitutionality) of Articles 133 – 191 of Parts ХХІІІ – ХХХІ, subclause 2 of clause 2 of Part ХХХХІІ “Final and Transitional Provisions” of the Electoral Code of Ukraine, requesting an opinion from the Civil Network OPORA on the matters raised in the constitutional claim.
In their сonstitutional claim, people’s deputies requested to declare the non-compliance of Book Three of the Electoral Code of Ukraine in general with the Constitution of Ukraine. At the same time, the substantive part of the claim justifies the unсonstitutionality of certain provisions of the contested Book only. In fact, the merits of the claim stem from the fact that a proportional electoral system had been introduced in place of the parallel system and the Electoral Code does not foresee the possibility for self-nomination at the parliamentary elections. Therefore, it leads to the unсonstitutionality of the entire Book Three. In addition, the claimant highlights the violation of the principle of legal certainty, narrowing the substance and scope of existing rights and freedoms of citizens, and the violation of other сonstitutional provisions.
In regard thereof, we hereby inform the following.
1. Electoral system and a political issue doctrine. The proportional electoral system has been under assessment of various judicial authorities, both in Ukraine, and beyond.
The European Court on Human Rights, through the application of the Convention provisions, such as Article 3 of the First Protocol, developed the practice enabling the government to have the wide discretion in the process of building the electoral system, provided the people’s free expression of will has been ensured in composing a legislative authority regardless of the system type applied, either a proportional representation, or a majoritarian, or other system (par. 64 of the Judgement in a case “Matthews v United Kingdom” dated February, 18, 1999). Further, the European Court on Human Rights highlighted that in today’s democratic world there are many ways to organize and enforce electoral systems, and there are many differences, also in historical development, culture, and politics of European countries. That is why each state is entitled to develop their vision of democracy (par. 61 of the judgement in the case “Hirst v United Kingdom (No 2)”) dated October, 6, 2005).
The Constitutional Court of Ukraine also has vast experience in considering election related cases. Independently from whether constitutional proceedings were ruled to be opened or rejected, the Court has been consistent throughout their history with the legal position that the design of electoral system lies within a doctrine of political domain, i.e. within the parliament’s exclusive competence. Specifically, back in 1998, in the case of election of people’s deputies of Ukraine, the Constitutional Court of Ukraine declared that “determining the nature of electoral system (majoritarian, proportional, majoritarian-proportional, etc.), with its certain elements and features shall be a matter of political relevance, and this shall be addressed by the Verkhovna Rada of Ukraine” (par.5 of the Judgement sentencing analysis). Later, the legal opinion was also reflected in the Resolution on rejection of the constitutional proceedings in the case No 2-61/2000 dated November, 29, 2000.
In another rejecting resolution in the case on official interpretation of provisions in part one of Article 38 of the Constitution of Ukraine dated December, 14, 2006, No 24-у/2006, the court stated that “pursuant to Article 75 of the Constitution of Ukraine, the Verkhovna Rada of Ukraine shall be the only body of legislative power in Ukraine; therefore, in approving the laws introducing different electoral systems for elections to the representative authorities in Ukraine in 1998, 2002, and 2006, it was exercising a legislative rather than enforcing activity (third paragraph of clause 3 of the sentencing analysis).
With no intention to contest the exclusive nature of the parliament’s powers to introduce certain types of electoral system, the scope of discretion in electoral engineering is not all-encompassing, whereas the discretion shall be measured with the abidance by fundamental principles of election law, such as the general and equal suffrage. The Decision of the Grand Chamber of the Constitutional Court of Ukraine in the case on excluding the candidates for people’s deputies of Ukraine from the political party election list dated December, 21, 2017, No 3-р/2017, the Constitutional Court of Ukraine emphasized that the “determination of the electoral system type, its elements and peculiarities is a matter of political relevance and shall be settled by the Parliament within its сonstitutional powers, and in line with the сonstitutional principles and democratic standards of the organization and conduct of elections. Furthermore, the Court insisted on the government’s obligation to ensure free expression of will for Ukraine’s citizens and respect to the voting results through the good regulation and organization of election process based on democratic principles and in compliance with the democratic procedures, and also through the introduction of efficient control over the exercise of the procedures, which shall disable any abuse or manipulations (par. three of subclause 2.4 of clause 2 of the sentencing analysis).
The Venice Commission holds the same position. They state that any electoral system is acceptable as soon as it complies with the principles of electoral law (par. ІІ.4 Code of Good Practice in Electoral Matters).
As to the acceptability of setting the proportional electoral system, upon the examination, the Constitutional Court of Ukraine declared the compliance with requirements of Articles 157 and 158 of the Constitution of Ukraine of the draft law on introducing amendments to Articles 76 and 77 of the Constitution of Ukraine (on reducing the сonstitutional composition of the Verkhovna Rada of Ukraine and enshrining in the law the proportional electoral system, registration No 1017). However, the Court declared there was no need (imperative) to set the electoral system type in the Constitution of Ukraine (paragraph eight, subclause 2.4. clause 2 of the sentencing analysis).
The above-mentioned legal positions lead to the conclusion that the proportional electoral system as a type does not contradict the Constitution of Ukraine.
At the same time, under certain conditions of engineering the electoral system, сonstitutional and electoral principles and democratic standards may be challenged, also in case of proportional electoral system.
At the same time, in addition to the lack of self-nomination options and the application of unified, regional election lists, other elements of electoral system, such as the constituency magnitude, ballot paper structure, electoral formula, etc. have not been contested by the сonstitutional claim subject.
2. Stability of electoral law and legal certainty. As an argument for the unconstitutionality of legal provisions, the сonstitutional claim lists the non-compliance with the international standard of stability of electoral law, with reference to paragraph 64 of the Explanatory Report to the Code of Good Practice in Electoral Matters approved at the 52nd plenary session of the European Commission (Venice Commission) on October, 18-19, 2002. According to it, “in practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law especially those covering the electoral system per se, the composition of electoral commissions, and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of the manipulation.” At the same time, the Venice Commission reiterates that the “it is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate political interests of a party” (para 65).
It shall be noted that in drawing the provisions of the Electoral Code, or any other regulatory document, it is crucial to maintain legal certainty as a precondition for the rule of law ensured by Article 8 of the Constitution of Ukraine. Pursuant to para 44, 46 of the Report on the Rule of Law approved by the Venice Commission (at the 86th plenary session, March, 25 – 26, 2011), it is about having legal provisions clear and precise, and aiming at ensuring that situations and legal relations remain foreseeable, whereas the government shall provide for the easily accessible text of the law. Thus, legal certainty envisages that a lawmaker shall aim towards clarity and transparency in formulating the legal provisions. Every person, under the relevant circumstances, shall be able to navigate the applied legal provision in certain cases (Decision of the Constitutional Court of Ukraine dated June, 20, 2019, No 6-р/2019).
Furthermore, the Study No 711/2013 “Rule of Law Checklist” adopted by the Venice Commission at the 106 plenary session (Venice, March, 11-12, 2016) says that legal certainty shall be ensured through the foreseeability of legal acts, which means not only that the law must (where possible) be proclaimed in advance of implementation, and also that it must be foreseeable as to its effects: it must also be formulated with sufficient precision and clarity to enable legal subjects to regulate their conduct in conformity with it. At the same time, the claimant failed to justify what specific unforeseeable consequences may occur upon the enforcement of provisions of Book Three of the Electoral Code, which provisions have been formulated with clarity and intelligibility.
Another sign for legal certainty is the stability and consistency of law, including the stability of electoral framework. As mentioned in the Study, instability or inconsistency of legislation may affect a person’s ability to plan their actions. However, the stability is not an end in itself: law must also be capable of adaptation to changing circumstances. Law can be changed, but with public debate and notice, and without adversely affecting legitimate expectations. Since the provisions of the contested Book came into force on January, 1, 2020, and will be applicable as soon as the following parliamentary elections, the public have enough time to learn about them and build the legitimate expectations (even in the event of extraordinary elections of people’s deputies).
It shall also be taken into account that there may be consequences of the possible declaration as unconstitutional of all provisions of Book Three of the Code, such as in the context of a big gap in legal regulation, in case the parliament fails to renew the previous electoral code, or fails to adopt a new electoral law (even in case the Court’s decision is postponed). As a result, it may “paralyze” the process of composing the following membership of the representative authority and extend sine die the work of the incumbent Verkhovna Rada of Ukraine, thus breaking the сonstitutional principle of the regular elections.
3. Cancellation of self-nomination and restriction of meaning of existing rights and freedoms of citizens. The сonstitutional claimant refers to the restriction of meaning and scope of existing rights and freedoms of persons due to the lack of possibilities for citizens to independently (through self-nomination), on the basis of their free will, run for elections of people’s deputies of Ukraine. In this regard, it shall be noted that the electoral system when candidates for people’s deputies could be nominated solely by political parties had already been used in Ukraine in 2006-2007. At the time, the Venice Commission highlighted that under clause 7.5 of the 1990 OECD Copenhagen Document, the citizen rights to run for a political seat, individually or as representing a political party or organization, with no discrimination, and reiterated that the law must ensure the possibility for independent candidates to run for seats in the Verkhovna Rada (clause 58). However, provisions of the Electoral Code do not prevent the legislator from ensuring the self-nomination options also within the proportional system foreseen for the parliamentary elections. It could be achieved, inter alia, through the introduction of lists of independent candidates during the next stage of electoral reform. Therefore, the lack of self-nomination options for individual candidates cannot be deemed as the grounds for declaring unсonstitutional, in general, Book Three of the Electoral Code.
4. Party membership and restricting the right of Ukraine’s citizens to participate in the election of people’s deputies of Ukraine. The claimant also mentioned the restricted rights of Ukraine’s citizens to participate in elections of people’s deputies of Ukraine through the mandatory affiliation (membership) to the political party. It is the ill-judgement. In fact, the party membership is not a mandatory prerequisite in nominating candidates as the political party may nominate either the party members, or the non-partisan candidates (part 5 of Article 154 of the Electoral Code).
5. Furthermore, we cannot agree with the fact that the introduction of unified regional electoral lists includes features of the usurpation of power. In fact, the Code provisions do not question the Ukraine’s citizens’ exclusive right to compose representative authorities, and the freedom of choice has been maintained.
6. The proportional majoritarian system and the Constitution of Ukraine. We also believe there are no grounds for the opinion set in the constitutional claim that Article 76 of the Constitution of Ukraine, read in conjunction with Article 81 of the Constitution of Ukraine, points to the existence of the mixed (proportional-majoritarian) system to elect people’s deputies of Ukraine. In fact, extending the list of grounds for the early termination of powers of a people’s deputy in part 1 of Article 81 of the Constitution of Ukraine with para 6 on the “party” mandate, and the reference to the institutionalization of coalitions of deputy factions in parts 6 and 8 of Article 83 of the Constitution of Ukraine were in conjunction with the introduction of proportional system in 2004. In this regard, in their Decision dated May, 27, 2008, No 11-рп/2008 , the Constitutional Court of Ukraine emphasized that the meaning of the electoral system set by the legislator, which is a crucial element of the mechanism of the government of the people, is relevant for the nature of the respective representative mandate and the peculiarities of functioning of the institute of сonstitutional liability in the system of representative authorities (sentence four of subclause 4.1 of clause 4 of the sentencing analysis).
Therefore, the analysis of the сonstitutional claim shows the inconsistency of arguments suggested by people’s deputies of Ukraine as to the non-compliance of Book Three of the Electoral Code with the Constitution of Ukraine in general. At the same time, we believe that self-nomination may be legally implementable within any electoral system, including also under the proportional system foreseen by the Electoral Code of Ukraine for the parliamentary elections, through the introduction of lists of independent candidates, among other things.