The doomed Code

Since 1994, opposition parties, politicians, electoral experts, lawyers, technologists and scientists have campaigned to enact an Electoral Code. At some point, Archadiy Lyubarev, the author of this article published on the Golos Movement's website, happened to be the editor of a draft Electoral Code developed by a group of experts after consultations with numerous electoral actors and published in 2011. It was yet another futile attempt.
Any attempt to enact such a document is doomed, notwithstanding its quality and thoroughness. The secret lies not in the Code's text but in the stability such an enactment will ensure. The ruling party has been staying in power by arbitrarily changing the law and adjusting it to the current situation to remain in control forever. Not the Code itself, but the stability poses a grave danger for its grab for power.

Arkady Lyubarev for Golos Movement

Kommersant published an article on a draft Electoral Code, recently submitted to the Duma by the Communist Party of the Russian Federation (CPRF). It includes my analysis of this bill as well. I analysed the September version of the bill, but nothing about it has changed much since then.

But I was struck - and amused – by Pavel Krasheninnikov's opinion quoted in the article:

"At this stage in the development of our society, when electoral legislation is simmering and constantly changing, it's impossible to codify legal norms," explained the parliamentarian to Kommersant. "It's codifying rules that have been established for decades". This can't happen, and nor is it expected to happen any time soon, not because nobody wants to or they're evil-minded, but because relationships are unstable in the electoral sphere. You can't build a good house in the middle of a flowing river. The Code must be a solid and long-lasting document.” (Pavel Krasheninnikov is a Member of Parliament from United Russia, and the Chairman of the State Duma Committee on State System and Law - REM)

Krasheninnikov's position is nothing new to me. I remember he opposed the codification of electoral legislation even when Ella Pamfilova, the head of the Central Election Commission (CEC), advocated for it. So his opinion isn't necessarily opportunistic. its' actually more profound than that. Nevertheless, I still don't understand why he thinks that way.

I checked ConsultantPlus (an online reference system for Russian Legislation - REM) and saw that there are twenty Codes currently in force in Russia. It's unlikely that anyone, including Krasheninnikov, would claim they all consist of "decades-old rules". So why does the electoral law need a more demanding approach?

I wouldn't be surprised if it turned out that Krasheninnikov doesn't know the history of Russian electoral legislation very well. It wouldn't be his first time demonstrating his ignorance in the field. Here are some other highlights.

In 1994, the Duma considered a draft bill of the Electoral Code prepared by the Yabloko party led by Victor Sheinis. It was rejected as it was considered to be too early. The MPs proposed to let the upcoming cycle of elections take place. Then, they would check the norms of the law, adjust them, and then adopt the Code. That's about how it sounded in debates and the Duma's resolution.

Yavlinsky, then the Chairman of Yabloko Party, then prophetically said that if we didn't enact the Code then, we would never enact it. One of my favourite things my father, an electrician, used to say was, "There's nothing more permanent than something temporary." What Yavlinsky said was a little less witty, but it was essentially the same thing.

In 2000, a report was published by the CEC, then headed by Alexander Veshnyakov. It again said the same thing, there would be another cycle of elections, and we'd then be able to start codifying electoral law. Two years later, Veshnyakov expressed the opinion that the electoral legislation was undergoing its last round of significant changes, after which it would become stable. He probably believed what he was saying. But in 2004, a new round of amendments to the electoral legislation began, which were more radical than in the previous ten years. It took place partly with active participation from Veshnyakov and partly with some weak opposition from him too.

In 2008, we, a group of social activists, took the initiative into our own hands and began preparing our own draft Electoral Code.

In 2010, when we began publishing our drafts, Maya Grishina (then an ordinary member of the Central Election Commission), then the chief drafter of the electoral legislation, and Vladimir Pligin, then the main specialist on the electoral legislation in the Duma, gave interviews in which they said that the current electoral legislation was optimal and that, in principle, there was no need to change anything in the electoral legislation at the time. I responded to these interviews with an article entitled, "Optimal legislation doesn't get changed eight times a year".

Isn't that amusing? It turns out that diametrically opposed arguments can be made against the Code, either that the legislation shouldn't be changed or that it's unstable.

Of course, Krasheninnikov is right about one thing, "electoral legislation is simmering and constantly changing". But is it really because "relationships are unstable"? No, the matter is entirely different, Krasheninnikov's party is constantly looking for what else to do to ensure its immutable nature.

Meanwhile, election participants (parties, candidates, members of election commissions, election lawyers, and political technologists) have long been moaning and demanding stable electoral legislation. And I once wrote something to express that need,

"Oh, please give us an amendment prohibiting all other amendments!"

I understand opponents like Krasheninnikov may have their objections, they want stabilisation first, then codification. Alas, it's clear that this is nothing more than a convenient myth. Until we perform some form of codification, there'll be no stabilisation. Yavlinsky definitely noticed this 29 years ago. And Krasheninnikov himself actually confirmed this, saying that "it's not expected in the near future". That's because the ruling party wants the legislation to be unstable. "Relationships are unstable" is also a myth. Well, in fact, they're doing everything they can to keep them unstable.

Of course, codification doesn't guarantee that legislation will be stable. But firstly, it will still be psychologically much more difficult to correct an entire Code than it is the current laws; already over a hundred amendments have been made to them. Secondly, it depends mainly on the quality of the codification itself. Only if, in the process of working on the Code, the gaps and contradictions are eliminated and the Code is clear, coherent and convincing, and if, when all is said and done, not only its authors but also a wide range of "users" recognise that the electoral legislation is now optimal, can its stability be insured.