BY
On 5th October 2014, when President Poroshenko signed into law what was
clearly a poorly crafted law – despite its rightful intention – an entry
was published outlining the fact that such a poorly crafted law was extremely likely
to result in something of a policy car crash.
“The perception is though,
that it is better than nothing and allowing the existing situation to continue
unchallenged and unchanged. The law is certainly not so woefully poor
that it has to be unreservedly thrown out – indeed throwing it out would anger a
sizeable part of the Ukrainian constituency immediately prior to the RADA
elections in a few weeks time.”
And
“Amendments will surely follow
once he Constitutional Court and Venice Commission recommendations are
forthcoming, hopefully transforming the “OK” into “good” legislation – but will
any amendments be made in a timely way?”
Notwithstanding
“The issue with “OK”
legislation for a subject as serious as lustration, is that ultimately European
Court of Human Rights appeals may very well result – with rulings granting
compensation and strong suggestions of reappointment to follow, thus inflicting
Ukraine to needless costs and possibly reinfection a cleansed (or at least
cleaner) system with the possible reinstatement of the corrupt it would have
already once removed.”
On 20th November 2014 an
entry was published outlining the very Constitutional
challenges anticipated almost 2 months prior.
“Indeed, as foreseen,
subjecting those learned (and corrupt) individuals to a law that was clearly
never more than OK, and far from being good, is subject to legal challenge from
th learned (and corrupt) judiciary within their own corrupted court system.
27 of 43 Supreme Court Judges have voted to send the Lustration Law to
the Constitutional Court. Those 27 voting in favour of challenging the
Lustration Law (informally) headed by the Head of the Supreme Court, Judge
Romaniuk – whom perhaps would struggle to justify his wealth if ever subjected
to the Lustration Law, as would many of his colleagues.
Under challenge are Part 1 –
Clause 6. Part 2 – Clause 2. Part 2 – paragraph 13. Part 3 and
Article 3. Thus whilst not striking down the entire Lustration Law, it
would certainly seem to hollow it out somewhat.”
No reader will be surprised
that there are, even with the most elastic interpretations of the Constitution
and Lustration Law, clearly areas where they are simply unable to “rub along”.
Thus eventually the law, or parts there of, will be judged as unconstitutional.
As also predicted, and duly
mentioned in an entry of 14th
December 2014, the Venice Commission made its discomfort with
the law known.
“The Venice Commission has now
commented however. It is suggesting what amounts to a complete revamping
of the law and mechanisms surrounding it – unsurprisingly.
Firstly The Venice Commission
recommends that body in charge of lustration should be a specially established
independent commission – not the Justice Ministry. It stresses that
people’s right to a fair trial -including the right to a lawyer, equal rights
of the parties, and the right to be heard in court – should be observed,
and that administrative decisions on lustration should be postponed
during the trial until the final sentence is handed out.
Currently the law on
lustration fails to contain some provisions dealing with such guarantees of
rights.
It also suggests the
provisions of the law containing the list of positions subject to lustration
should be revised, and that lustration should only apply to those positions
that could pose considerable danger to human rights and democracy, and that
guilt should be proven in each specific case – it cannot be considered as
proven based on an official’s affiliation with a specific category of public
establishment alone.
All of which, again, was
entirely predictable – so much so it was predicted at the time.
Legislate in haste – repent,
repeal and pay reparations at leisure!”
Timeliness is not necessarily
something associated with the Ukrainian legislature unless its vested and
varied interests are threatened – and due to the prima facie conflict with the
constitution, any threats posed by the poorly written Lustration Law for those
at the top of the corrupt and nefarious tree may be seen as temporary pending
appeals and ultimately successful (including reappointment and reparation)
ECfHR rulings as the law currently stands.
With the Constitutional Court
reaching its final (and probably unfavourable) conclusions upon the immediate
horizon, notwithstanding several pointed comments from the Venice Commission
since its “Opinion” has been roundly ignored (the last barbed comment only a
few days ago), only now (21st March 2016) have necessary amendments been
submitted to the Verkhovna Rada via Bill 2695 that
seek to comply with the Venice Commission official Opinion/recommendations .
The submitted draft proposes
to quite significantly alter the composition, independence and powers of any
lustration body, clearly identify and reduce those positions (and therefore
people) able to be subjected to any lustration process. (This long after
many that would now be excluded from the process should the law be amended,
having already been lustrated and who are probably now forming an orderly but
very long queue at the ECfHR unless they somehow “settle” domestically.)
It is perhaps fortunate – or
more than unsatisfactory depending upon a readers point of view – that the
lustration process in Ukraine, since the law was passed, like so many policies
has not enjoyed systemic and consistent implementation. Therefore the
damage done – or not done – is far from what it was designed to be.
Repercussions have domestically been, and perhaps at the ECfHR will
therefore be, somewhat more limited than they should have been/could be.
It remains to be seen just how
snugly draft Bill 2695 will meet the “Opinion” of the Venice Commission, (and
by default how many unnecessary ECfHR claims will be prevented in the future),
or indeed whether the draft Bill will manage to gather the necessary 226 votes
to amend all the laws that will require changing – which include the laws “On
the cleansing of power” (Lustration Law), “On the recovery of confidence in the
judiciary”, “On prevention of corruption”, “On elections of People’s Deputies
of Ukraine”, “On elections of President of Ukraine” and “The Code of
Administrative Offences.”
At its most fundamental, the
conflicting issue is one of “collective justice” which an aggressive lustration
would require to “cleanse en masse” post-soviet endemically corrupted
institutions swiftly, verses that of “individual justice” that “Europeans” expect
from due process – notwithstanding the constitutional issues.
Perhaps the Ukrainian
constituency has now replaced the initial (and rightful) rage that demanded
more or less unchecked “collective justice” across the swathes of corrupt
practitioners within cancerous State institutions in the aftermath of 2014, to
that of stoic and unfaltering determination to deal with the problem in a far
more “European” way over the long haul. As Ukraine has clearly still not
got to grips with fundamental requirement of upholding the rule of law in a
consistent and equitable manner, and until it does there is no solid foundation
for any reform or any legislation that emerges from the Verkhovna Rada be it
good, bad or counterproductive, a long haul it is certainly going to be.
The question is whether the
“Lustration Law” of October 2014 is a policy car crash that has now truly hit
the wall with consequences that should have been foreseen but weren’t, or
whether those consequences were foreseen with very clear eyes, and the damage
caused in the resulting car crash was deemed entirely acceptable in buying
sufficient time to partially cleanse the system and partially placate a then
raging society?
Whatever the answer, there
remains the need for a policy of institutional and political cleansing that
meets the expectations of the domestic constituency (first and foremost) and
also external supporters of Ukraine – and the current leadership remains far
from achieving that.
Nevertheless, the legacy of “Legislate
in haste – repent, amend, repeal and pay reparations at leisure” appears
to require facing very soon indeed.
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