Court ruling on eve of election reverses law on home voting
by Andrew Nynka
Kyiv Press Bureau
KYIV - Ukraine's constitutional court ruled on December 25 that all of the reforms made to the country's election law as a result of the November 21 runoff election, with one exception, are constitutional.
The ruling by the Constitutional Court, which came less than a day before the country was set to vote a third time for a new president, affirmed the changes made by Ukraine's Parliament in the aftermath the November 21 runoff, which was widely condemned as fraught with falsifications.
On December 3 Ukraine's Supreme Court overturned the result of the run-off, which had concluded with Prime Minister Viktor Yanukovych emerging as the winner, and ordered a new election. Members of the Verkhovna Rada then overhauled the country's election law, as presidential candidate Viktor Yushchenko alleged some 3 million votes were stolen from him as a result of manipulations of the old election laws.
Election law reforms were quickly passed in the Parliament by national deputies, largely from the Our Ukraine faction, who said that home voting and the widespread use of absentee voter certificates were the chief means of falsification in the November 21 election.
The overhaul was quickly pushed through as dissenting deputies asserted that many of the reforms were unconstitutional but accepted them as part of a larger reform compromise that also took some of the president's power and passed it on to the prime minister.
In a reversal of that initial deal, 46 lawmakers, led by Party of Regions National Deputy Valeriy Konovaliuk, lodged complaints in connection with the newly written law on elections with the country's Constitutional Court on December 14, though the court did not begin hearing the case until December 24.
In announcing the court's decision, Mykola Selivon, chairman of the court, said, "No one will ever be able to say that the president was elected illegitimately and illegally."
"The Constitutional Court dotted all the i's by saying that the election campaign is proceeding in keeping with the Constitution," he told the Interfax-Ukraine news agency after the ruling.
Overall, the appeal requested that the court rule as unconstitutional the law on holding a repeat run-off presidential election on December 26, said Volodymyr Shliaposhnikov, a spokesman for the court, a day after the appeal was lodged.
Mr. Yushchenko said the appeal was an attempt to railroad the run-off vote. "I'm aware of the pressure by the presidential administration on the Constitutional Court and the judges of the court to realize the plan," he told journalists on December 24 during a press conference at his campaign headquarters, which was packed with some 400 journalists.
"I believe people representing the Constitutional Court understand their responsibility," he said before the ruling was announced the following day. "Today it depends on the Constitutional Court if a counterrevolution takes place in Ukraine or not."
The reaction to the ruling was mixed throughout Ukraine, though politicians from a broad spectrum of political parties agreed that it largely affirmed the constitutionality of the election reforms. However, the effect on the election of the sole amendment that the court found unconstitutional - limiting home voting to only the most severely ill or crippled in Ukraine - was not clear in the decision's aftermath.
That amendment would have allowed people with only the most severe disabilities, called Type 1 invalids in Ukraine, to vote at home. Mr. Yanukovych has said repeatedly that the amendment was unconstitutional because it would limit a certain number of people from voting in Ukraine, a country of 48 million people.
The court's ruling on that amendment said that all people who are unable to reach polling stations because of disability or poor health must be allowed to vote at home.
"The court's decision 15 hours ahead of the vote was a bitter pill for democracy," Mr. Yushchenko said on election day. "I asked all members of my staff to send their own cars to help the disabled to get to the polling stations."
The ruling, which came less than 24 hours before the polls opened at 8 a.m. the following morning, required the CEC to implement the decision and assure that anyone who was eligible to vote at home could.
After the ruling was announced, CEC Chairman Yaroslav Davydovych assured people that the rerun vote would be held as planned. "We will implement the Constitutional Court verdict," Mr. Davydovych said on December 25. "We will work even harder, but there is no alternative. The vote must be held tomorrow."
"It would have been a lot worse if we took the decision after the election," Mr. Selivon said after members of Mr. Yanukovych's camp criticized the ruling for coming too late in the election. They said that, even though the court ruled in their favor, the decision would alienate voters who were unaware of the decision.
Other politicians, however, disagreed with that assessment. "Today's decision of the Constitutional Court has finally protected the December 26 voting, which will be held in full compliance with the law approved in our package," said Petro Poroshenko, a member of Ukraine's Verkhovna Rada and the Our Ukraine political faction.
Mr. Poroshenko stressed that the 46 deputies violated an agreement on the package deal by sending their appeal to the court. "If that side withdrew from the package, our political force has every right to consider itself free from the package voting decision. Our opponent's actions enable us to withdraw from the package agreement," Mr. Poroshenko said, referring to the recent constitutional reforms.
For the most part, the court's ruling was seen throughout the country as having given the December 26 vote a high degree of legitimacy and making any challenge to the election results in the aftermath of the vote very difficult.
"I believe this decision of the Constitutional Court will completely block the possibility of any complaints and lawsuits after the election," said Volodymyr Lytvyn, chairman of the Verkhovna Rada. "Thus, our election will be valid and there is no threat that it may be frustrated, at least in the legal field."
However, it appears that on exactly this point Viktor Yanukovych, the loser of the December 26 vote, will appeal the results of the election.
A key Yanukovych ally, National Deputy Nestor Shufrych, commented on the topic the day before the election. "Of course, if one side or the other is not pleased with the results of the vote, they will appeal on the basis of the Constitutional Court's decision," he said, adding that it would deprive some 3 million people of their right to vote.
On December 28 Prime Minister Yanukovych took the next step in his run for the presidency when he formally filed a complaint with the Central Election Commission detailing what he said were violations during the repeat run-off. A spokeswoman for the CEC told Reuters that the complaint listed violations of the election law in all of Ukrainian 225 electoral districts.
| Region | Leader | % for |
| Crimea Vinnytsia Volyn Dnipropetrovsk Donetsk Zhytomyr Zakarpattia Zaporizhia Ivano-Frankivsk Kyiv Kirovohrad Luhansk Lviv Mykolaiv Odesa Poltava Rivne Sumy Ternopil Kharkiv Kherson Khmelnytskyi Cherkasy Chernivtsi Chernihiv Kyiv City Sevastopol City Foreign districts |
Yanukovych Yushchenko Yushchenko Yanukovych Yanukovych Yushchenko Yushchenko Yanukovych Yushchenko Yushchenko Yushchenko Yanukovych Yushchenko Yanukovych Yanukovych Yushchenko Yushchenko Yushchenko Yushchenko Yanukovych Yanukovych Yushchenko Yushchenko Yushchenko Yushchenko Yushchenko Yanukovych Yushchenko |
81.26 84.07 90.71 61.14 93.54 66.86 67.45 70.13 95.72 82.7 82.7 91.24 93.74 67.13 66.56 66 84.52 79.45 96.03 68.11 51.32 80.47 79.1 79.75 71.15 78.37 88.83 59.52 |
| TOTAL | YUSHCHENKO Yanukovych |
51.99 44.19 |
Copyright © The Ukrainian Weekly, January 2, 2005, No. 1, Vol. LXXIII
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