14. The methods of election for various offices are established under the Constitution and prior to enactment of the Code, through specific election laws for the main types of elections – the Law on Election of Members of Parliament; the Law on Election of the President; and the Law on Local Elections (municipal councillor and mayoral positions). The Code would not change the method of election to any office, which remains as follows:
· Under the Constitution, a candidate is elected to the Presidency if s/he obtains an absolute majority of the votes of all registered voters, provided that more than 50% of the registered votes cast a ballot. If not, a second round is held between the two leading candidates and the one who gets more votes is elected President; but the above-mentioned turnout requirement must be achieved for the election to be valid. If not more than 50% of the registered voters cast a ballot, the election has to be repeated from the outset. Relating an election outcome to the number of listed votes often creates unnecessary problems and discussions, since ideally accurate voter lists are difficult to compile. Experience in other Council of Europe and OSCE member States, which had similar legal provisions confirmed that the utility of such provisions is questionable. Thus, the constitutional provisions, which are reflected in the Code, permit a cycle of failed elections and should be changed.
· Under the Code, as under the previous Parliamentary Election Law (2002), 120 parliamentarians are elected through proportional representation elections in six districts with equal numbers of available mandates (exactly 20 seats from each) and approximately equal numbers of registered voters. The boundaries of the districts do not correspond to any legal administrative or territorial division. This is a rather unusual arrangement. List proportional systems in multi-member constituencies have the advantage that the constituencies need not be equal in size since the number of seats from each constituency will be determined by the number of inhabitants voters or citizens. Therefore administrative units will most often form the constituencies under list proportional systems. “The former Yugoslav Republic of Macedonia” has chosen not to take advantage of this feature and they therefore have to undertake the rather complicated task of drawing constituencies and to administer elections in constituencies which may divide administrative units. There is nothing wrong in doing this but it seems to be an unnecessary complication. Unlike previous law, the Code does not specify a legislative threshold (percentage of the national or district vote required to achieve representation); and its description of the award of mandates according to the d’Hondt formula, for the municipal councils as well, remains vague. The language could be more precise in stating that the number of votes per list is divided by the divisors 1,2,3,4, etc. Article 127 (5) uses, in the English translation, the term “quotients” instead of “divisors” whereas the corresponding Article 130 (6) uses the correct term.
Article 121 (3) states that “the candidate who wins [the] majority votes of the voters who have cast their ballot, shall be elected” president. This means that even invalid (including blank) votes are taken into account. If one of the two candidates has got 48% of the votes, the other candidate 46% and there are 6% invalid votes, the election is undecided, even with a high turnout. It would therefore be better to simply state the candidate with the highest number of votes is elected. The wording of Article 133 (3) for the mayor election could be used instead.
· Election of municipal councillors is through proportional representation. Mayors are elected directly, and a candidate may win outright by achieving an absolute majority, but only if a quorum of one-third of voters turn out. Otherwise, there is a second round between the two leading candidates in which the candidate who receives more votes is the winner; there is no turnout requirement for the second round and therefore no possibility of failed elections. Under the Law on Territorial Organisation, 2004, which implemented the decentralisation objectives of the OFA, there are 84 municipalities and an additional local government (with mayor and council) for the City of Skopje, which includes several municipalities.