Constitutionality of Election Code, rights of indigenous people, and extra grade points for creative and sporty youth

Last week President Volodymyr Zelensky held a press conference to report on the achievements during his two years in office. However, soon the list of the President’s achievements can become shorter: a group of MPs has decided to challenge the constitutionality of the electoral reform in the Constitutional Court. In the meantime, MPs from the President’s faction threaten to undermine External Independent Evaluation by giving an opportunity to get extra grade points to prospective students whose parents can afford to pay for preparatory courses provided by universities.

Initiators: a group of 45 MPs most of whom were elected in single-mandate districts.

Status: the judges of the Constitutional Court have started the closed part of the proceedings and are getting ready to make their final decision.

Who is affected: Ukrainian citizens, political parties, politicians, MPs, the Parliament, and the Cabinet.

Summary of the case: the Court can rule the decision to introduce the proportional electoral system for parliamentary elections unconstitutional and make the Parliament restore the majoritarian system.

Arguments presented by MPs to the Court:

• the removal of the majoritarian system has deprived Ukrainian citizens of the right to self-nomination, i.e. infringed citizens’ right to freely elect their representatives and be elected
• the restriction that only political parties are allowed to nominate candidates is an indication of the usurpation of power and monopolization of power by political parties
• the introduction of a new electoral system violates the legal security principle since citizens cannot predict which system will be used in the next parliamentary election.

What is wrong:

• the Constitution says nothing about which electoral system has to be used in parliamentary elections. The Constitution defines only the general framework for elections, requirements to those who can vote and be elected, and a timeline for conducting regular and early elections. Therefore, the Parliament has the authority to pick any electoral system compliant with the requirements
• majoritarian systems are more vulnerable to abuse, in particular, to vote-buying and use of administrative resources. Proportional systems give better protection to people’s votes
• considering the occupation, the majoritarian system is ineffective. In district 51, for example, self-nominee Oleksandr Kovalov has won with 220 votes, in district 105, a candidate from the Opposition Block Viktoriia Hryb has won with 1,852 votes
• for the second time in a row, the Ukrainian Parliament has fewer MPs than provisioned by the Constitution since 26 single-mandate districts are temporarily occupied.

Why this is important:

• the Election Code adopted in December of 2019 provisions that in the next parliamentary elections the proportional electoral system will be used. Each voter will be able to support a particular political party, a regional list of this party, and a particular candidate from this regional list
• since March 2014, a number of rallies were held in support of the electoral reform — a transition from a hybrid system to a proportional one. This initiative got support from the general public and international partners of Ukraine
• Petro Poroshenko promised to introduce a proportional electoral system in his election platform in 2014, Volodymyr Zelensky — in 2019
• over 40% of Ukrainian citizens are in favor of a proportional open-list electoral system.

What’s next: the Constitutional Court has already started the closed part of the proceedings and is getting ready to make its final decision.

Sponsor: President Volodymyr Zelensky.

Who is affected: Ukrainian citizens, indigenous people, local governments, local offices of government bodies, and the Cabinet.

Summary of the bill:

• defines the term “indigenous people” and provisions that indigenous people in Ukraine are:
• Crimean Tatars
• Crimean Karaites
• Krymchaks
• guarantees human rights and fundamental freedoms for indigenous people, guarantees protection from forced deportation or any actions aimed at depriving them of ethnic heritage or cultural objects
• allows indigenous people to create representative bodies, defines the legal status and sources of funding of such bodies, and provisions that indigenous people will get help in their communication with the international community
• guarantees cultural, educational, linguistic, and information rights.

What is right: the bill will help to protect indigenous people. Since they do not have countries of their own and only limited influence on state policies, they need extra protection from the state.

Cosponsors: a group of 36 MPs with Vladlen Nekliudov (Servant of the People faction) as the first signatory.

Who is affected: schoolchildren, prospective students, and higher education establishments.

• 4.2 mln of schoolchildren attend secondary education establishments, 1.2 mln of them attend after-school education establishments
• in 2020, 380 thousand people registered for the core session of the External Independent Evaluation

Summary of the bill: extra grade points will be granted for the following prospective students:

• winners of All-Ukrainian or international creative contests (for professions where students have to be creative)
• sportspersons with at least first sports degree or a rank of master of sports of Ukraine (for professions where students have to be sporty)
• prospective students that successfully finished preparatory courses provided by higher education establishments they apply to (humanities only).

What is right: the state will try to engage youth in creative activities and sports. Schoolchildren will not be bound by school curriculum only and will get advantages from their interests and skills.

What is wrong:

• extra grade points from preparatory courses will tempt prospective students and lecturers to resort to corruption. During External Independent Evaluation each point will be worth its weight in gold, so this loophole will be heavily abused
• the proposed changes go against the state policy of fair and transparent competition introduced with External Independent Evaluation.

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