Friday, September 18, 2009

The Constitutional Threat. The election of the President of Ukraine, scheduled on January 2010, may be wrecked by the Constitutional Court ruling.

The President of Ukraine Viktor Yushchenko appealed to the Constitutional Court of Ukraine on Monday, 14 October 2009, to examine the compliance of some clauses of the Law of Ukraine on the amendments to the Law on Presidential Elections (recently adopted by Parliament) with the Constitution of Ukraine. A lot of experts predict it may cause the disruption of the Presidential election, scheduled for the beginning of 2010.

If the Constitutional Court declares that some provisions of the law are unconstitutional, the Presidential election of January 2010 will be put in jeopardy – for sure. Parliament will definitely fail to pass the amendmends to the Law (due to the requirements of the Court) before the official starting date of the presidential race – 19 October 2009. Then it will be easy to question any result of the vote if it happens on 17 January: as the election was organize according to the “old”, unconstitutional version of the law. The only way to stay within the frames of a Fundamental law of the country will be to schedule a new date for the presidential election, extending the term of office of Viktor Yushchenko.

The Speaker of the parliament of Ukraine Volodymyr Lytvyn has recently said that he is ‘convinced that there are reasons for the Constitutional Court to define some clauses of the law as unconstitutional’. He thinks it may cause a political turbulence and lengthy court battles over the election, making the situation ‘disorganized’.

The “new version” of the Law of Ukraine ‘On Presidential Elections’, in particular, reduced the time of presidential campaign from 120 to 90 days. It also allowed adding people to voter lists on the day of election (as the clear and trustable Voter Registry has not been formed in Ukraine yet), and prohibited to vote for Ukrainians living overseas, if they are not included to the Consular register (these legislative innovations are mentioned in the President’s application as one may cause a huge fraud, and another restricts the citizens’ universal right to vote).

Pre-history: On July 24, 2009 the Parliament of Ukraine passed a bill amending the Law on Presidential Elections. On 18 August Viktor Yushchenko vetoed the proposed amendments on the Law on Presidential Elections. But the Parliament convened a special session on August 21, when 325 out of 371 members of parliament override the president's veto.
The presidential election is scheduled for January 17, 2010. If required a second round ballot is expected to take place in February 2010. 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.


Tor Hershman said...

Tetyana, take it from someone who's been surrounded by 'Elections' for years and years.....wait, go and google

neil innes no matter who you vote for the goverenment always gets in

for a most cool musical offering.

Stay on groovin' safari,

UkrToday said...

What is clear is that Yushchenko is not a real contender. In reading an outline of his submission for appeal there is not one issue that has real substance. Foreign voters represented less then 0.04% of the 25 million votes cast. They certainly would not effect the outcome of the election.

This will be a test for Ukraine's Constitutional Court

In a rather extraordinary and highly questionable action the chairman of the Constitutional Court of Ukraine, Andriy Stryzhak, has prejudged the outcome of the President's appeal on the law of Presidential elections.

Andriy Stryzhak, in a statement published by the National Radio of Ukraine, has rebuffed calls by Ukraine's legislators for the Constitutional Court to consider its deliberations before the end of September. Further the chairman of the court expressed his opinion that "the election process will not be broken if presidential election law is declared unconstitutional".

Andriy Stryzhak made it clear that the Constitutional Court would not rule on the new law before the end of the month. Instead of mentioning the fact that the new law remains in force until the Constitutional Court rules otherwise, Stryzhak stated that in the event the law is declared unconstitutional the old presidential election law will be in force. He further stated that the Constitutional Court will not consider the law as a matter of urgency as requested by the President and now the Parliament.

The old law has a 120 day campaign requirement which, if in force, would commence tomorrow (Saturday September 19)

The statement of the court's chairman raises a number of serious issues not the least the extent of bias of the Chairman in prejudging the outcome of the President's appeal, before it is considered by the Court, but also the possibility that the Court has once again entered the realm of politics by not fulling its duty to Ukraine. The Court must consider this as a matter of urgency and any delay would only undermine confidence in the court itself.

The Council of Europe in June this year called on Ukraine to implement changes to the law of the Presidential election so as to ensure that the legislation and conduct of the Presidential election meets recognised international standards. It is crucial that changes to the law are in place without delay.

The law has been promulgated and remains in place until the Constitutional Court decides otherwise. The striking out of this law at a crucial time in the election cycle would be detrimental to the election. The Constitutional Court must consider this an an matter of urgency. Any delay would be seen as political interference. The Court can not dismiss this issue at the last minute on a technicality as it did on the law of impeachment of the President.

Anonymous said...

The President of Ukraine is elected by a flawed two round first-past-the-post voting system. If no candidate has an absolute majority 50% or more votes then the two highest polling candidates face off in a second round ballot. The estimated cost of the election is over 1 billion dollars with the direct cost for the ballot budgeted at around 1 billion hryivna.

Ukraine could have and should have adopted a single round preferential ballot. Voters record in order of preference their choice of candidate (1, 2 3 etc) If no candidate has a majority then the candidate with the lowest number of votes is excluded and their votes redistributed according to the voters preferences. This process is repeated until a single candidate has 50% or more votes. one round same results at half the cost. Overall Results of the election known in days not months.

A preferential ballot provides more stability and ability to detect possible fraudulent activity. It also removes the negative aspect of minor candidates nominating and in the process taking votes away from more serious candidates. Minor candidates can play a positive role as opposed a negative "Spoiler" role by advocating support for a second choice candidate.

UkrToday said...

The reduction in the length of the official campaign period from 120 to 90 days is not an issue or contravention of Ukraine's Constitution. The Constitution of Ukraine makes provision for a 90 day election period for the president and a 60 day election period fo the parliament. As I understand this does not form part of Yushchenko appeal

The issue of concern in relation to foreign Voters is a storm in a tea cup. foreign nationals represented less then 0.1% of total vote recorded in the 2007.

Bloc Yulia Tymoshenko received 8566 votes, Party of Regions 6839 votes, Our Ukraine-Peoples Self defense 6598 votes. With over 25 million votes recorded the number of foreign voters will not effect teh overall result. Foreign voters are not denied the vote they must be registered to vote, something that is common practice in western democracies as is the ability of a person to clime their right to vote on election day if their name has not been included.

Elections in Ukraine are conducted with the assistance and supervision of the OSCE. Having observed the previous elections I found them to be well managed and subject to open scrutiny. The new law is responsible and has adopted may of the recommendation that have been made of the OSCE and the Venice Commission. Yushenko is looking for an excuse to nullify the elections. What is clear is that Yushchenko will not win which ever way you look at it other then by having the election declared invalid.

It is important to note that the law as passed remains in place until and if the Constitutional Court rules otherwise.

Yushchenko is trying to disrupt the elections - Turchynov reports that Viktor Yushchenko is seeking to disrupt the holding of Presidential elections in 2010 in order to cling on to power beyond his five year term of office. Yushchenko whose rating is less then 4% is expected to lose in the first round of voting.

UkrToday said...

Ukraine's Constitutional Court has brought down its ruling.  As previously reported in a leak the Court has ruled unconstitutional five provisions of the Law on the Presidential Elections.

1. The provision that required voters abroad to be registered with the consulate before having the right to vote. 

Now any citizen of Ukraine can turn up and apply to vote at a Ukrainian consulate abroad. In a strange and some what conflicting move the Court upheld the abolition of absentee voting.  Seems that if your are living abroad you can vote but if your holidaying in Ukraine or visiting friends or relatives you are denied the right to vote. If your voting abroad you still have to attend the consulate offices. In 2007 the number of voters voting abroad was less then 0.05%

2. The provision that members of the local CEC boards needed to be registered as living within the area has been removed

This is a reasonable change but will not effect the conduct of the election

3. Proposed limitations of court challenges have been removed.

It is not clear exactly as to what the repercussions of this might be. It is common for legislation to restrict frivolous and unsubstantiated challenges that might arise from time to time.  The general principle is that any error in the conduct of the election procedures MUST be demonstrated to have effected the overall results of the election before any challenge can succeed.

4. Abolished the two day limitation on hearing any disputes related to the conduct of the election

5. Removed the exclusive right of the CEC to declare a candidates registration invalid

The courts will now have the right to consider any application, the main problem with this is any court proceedings may effect the overall administration and timing of the election if any disputes are not quickly addressed.

Yushchenko was quick to claim that the Constitutional Court ruling was a win for his stance but the reality is it was not .  Not all the arguments provided by Yushchenko were upheld. The changes to the legislation will not effect the  overall elections.  The elections will still proceed as planned with the 90 days campaign and most important the 2.5 million hrivina deposit remains in place.  The Parliament may have to modify some aspects of the law but the legislation remains in tact.