CONSTITUTIONAL COURT PLAYING KING SOLOMON: ELECTIONS WILL BE HELD WITH NEW PARLIAMENT THROWN TO THE WOLVES

The final verdict was that the mixed proportional representation and majoritarian electoral mechanism did not contradict the Constitution, meaning that it has the right to exist. Hence the basic political conclusion: the parliamentary elections will be held on a mixed basis, with political parties taking part. The document says nothing about whether they will be held according to schedule, in 4 years, or in keeping with extraordinary procedures (should the new Verkhovna Rada prove legally incompetent after the old Parliament’s expiration). However, doubts are already there.

To begin with, the Court banned as unconstitutional all privileges for political parties over individual candidates running in majoritarian districts ranging from double ballot to a smaller number of signatures to get on the ballot. True, there is a special clause to the effect that this ban will not apply in this campaign if all nomination, registration, and canvassing procedures have already been carried out in accordance with the elections law. At the same time, the Court held unconstitutional the «pushing through» of party lists with separate entries winning in single-seat districts. Certain optimistic party members predict (and Chief Justice Tymchenko has said nothing to the contrary) that, since the Court’s ban will not affect this year’s campaign, the Central Elections Committee’s winner-seat-awarding procedure will survive. However, the term votes will be counted after the ruling and the procedure for awarding seats is not included in the list of temporarily «protected» procedures (nomination, registration, and canvassing). In other words, the Court has actually denied the possibility to give seats to party men nominated according to party lists and as district winners, in which case the vacated entry in the list could be filled with another party stalwart.

The ruling emphasizes the right of citizens (read: losing candidates) to contest practically every electoral procedure in an ordinary court of law, including those carried out before this enactment. In other words, to avoid complications after summing up the election results, all political parties will have to determine which candidates to leave in the majority electorates and which in the lists only. Now one can understand the meaning of too many signatures in party lists. Precisely this excessive amount of supporters will allow single-seat candidates to prove that they never used forbidden advantages compared to those on party lists. But even this is not certain.

Generally speaking, the articles of the mixed law recognized as unconstitutional provide for only half the seats, 225, for party lists, meaning that none of the parties winning by lists, and not even their purely «party» coalitions can constitute a majority. Incidentally, retaining the 4% barrier, which, of course, diminishes the chances for numerically insignificant yet very resolute anti-President structures (Forward, Ukraine! for example), only seems to pave the way for so-called party monsters like CPU, NDP, Rukh, Socialist-Peasant Bloc, and SDPU(U).

They will redistribute the prizes among themselves, within the above-mentioned half of the seats. As though knowing in advance about the decision, certain structures campaigned for their candidates in majority districts without giving any advantages to those on lists, which means that they will receive substantial aid from the party majority in combat-worthy factions. But this applies only to parties that prove capable of being upheld in numerous court appearances, which means those closest to the President. As it is, while the Communists seem in a position to push their rivals back somewhat (judging by current polls) in a fair competition for the pensioners' votes, the NDP will have to find other means to corroborate its excellent results.

There are, however, two other Court decisions which will have even more interesting consequences for the campaign and, of course, its results.

The first immediately lifts the candidate deputies' personal immunity. Within the next month practically every candidate who is not currently a deputy could be arrested. Remarkably, such an arrest can be made under the law not only without a court ruling, but even without material evidence, and detention may last up to a month. In other words, law enforcement authorities are now in a position to solve a lot of the President's problems: the most bothersome opponents may have to exercise their right to campaign behind bars. The Constitutional Court, among other things, determined that inmates cannot be stripped of their voting rights, so a considerable part of the campaign will be automatically transferred to the state penitentiaries, which will present other problems, among them more or less comfortable arrangements for international observers and numerous party inspectors. Considering that all such arrangements notwithstanding, elections are hardly likely to be transparent behind barbed wire, and their results are not difficult to predict.

Apparently, the future Parliament will not be politically structured, because all the "structuring" properties of the mixed voting system have been curbed. Instead, there is the growing possibility that, if not all but only separate seats are eventually recognized invalid, after endless court sessions, this new parliament could lack a quorum for the first few months. Incidentally, the fact that today's top- level bureaucrats (the Premier probably included) are allowed not to take leaves of absence for the campaign's duration once again brings forth the problem of subsequent moonlighting (combining executive and parliamentarian jobs), even though in a somewhat different form. Thus if the numerous cabinet workers and presidential advisers, having won seats in parliament via party lists, decide to return to their executive offices, their seats will wind up vacated (as the lists will not be pushed through). This means an additional parliamentary void. Adding here that 21% of current candidates still registered in two electorates and risk ending up without seats, the result is in the neighborhood of 30% of current members. Under the Constitution, this is close to the mark below which parliament is to be proclaimed incompetent for lack of a quorum.

Last but not least, such an unstructured Verkhovna Rada will show its weakness at the very beginning, when trying to elect a Speaker and his deputies. After a month of fruitless debate the President will rule the session invalid and parliament dissolved. It won't be the way it was in Kazakhstan, rather a more sophisticated variant. The Constitutional Court also determined that voters refusing to vote cannot delegate their votes to the active part of the electorate. Since this clause was included in the elections law instead of the one about the electors' quorum and in view of the Ukrainian citizenry's lack of enthusiasm when it comes to casting ballots, there is the threat of the elections being found invalid. Making this lack of enthusiasm even more pronounced will not be a problem, and extraordinary elections may well be in order toward next fall. Anyway, the text of the ruling does not rule out the possibility, and everyone knows that the judges' commentaries, however encouraging, have no legal effect, even less so in the presence of political will stemming from essentially different quarters.