It is usually helpful to understand the
nature of a problem before effective solutions to it can be developed and
implemented
Bohdan Vitvitsky is former Federal Prosecutor and
Assistant U.S. Attorney, U.S. Department of Justice; New Jersey, USA
Towards that end, I will propose and answer four
questions about corruption in Ukraine. Preliminarily though, we should
all be clear about what we mean by “corruption.” Corruption refers to the
misuse or abuse of public assets
by public servants
either by themselves or in combination with other public servants or private
individuals—whether for personal, familial, partnership or partisan gain.
The public assets most often are money, but may also be real estate, personal
property or simply information. Examples include bribery, kickbacks,
theft of state assets, conflict of interest and other schemes. There do,
however, exist other malfunctions related to government such as, for example,
the monopolizations of power, but just because some phenomenon is a malfunction
related to government does not make it corruption.
Ukraine’s widespread corruption cannot be understood
without understanding four central features of Soviet society, whose legacy in
part continues to haunt Ukraine to the present day. These features are:
1. moral degradation in
the public sphere;
2. virtuality, i.e., the
practice of systematically pretending that things are different than they
actually are;
3. social atomization;
4. the fundamental
deformation of the Soviet legal system so that the rule of law was minimally
present or altogether absent.
When I came to Ukraine for the first time in 1989 when
it was still part of the Soviet Union, I heard two striking anecdotes that
reflect the related pathologies of moral degradation and virtuality. The
first was: “they pretend that they pay us, and we pretend that we work”;
and the second was that in the Soviet Union, people “say one thing, think a
second and do a third.” But it was Nikolai Ryzhkov, the Prime Minister of
the Soviet Union under Gorbachev and one of the architects of “perestroika” who
revealed the pervasiveness of
the two pathologies when he said in 1985: the “moral state of [Soviet]
society” was its “most terrifying” feature. He explained: “[We]
stole from ourselves, took and gave bribes, lied in the reports, in newspapers,
from high podiums, wallowed in our lies, hung medals on one another. And
all of this—from top to bottom and from bottom to top.”
The third factor is social atomization. It is
civil society, all of the social organizations and institutions that are
independent of government, that teaches us and provides us with opportunities
to build trust and solidarity with others and expect trust and solidarity from
others. The Soviet system destroyed all civil society and proscribed its
re-emergence; in its place, it substituted a society of suspicion and distrust
that led to profound social atomization. If, in post-Soviet societies
such as Ukraine, some or many citizens feel little or no solidarity with their
fellow citizens and, thus, with Ukrainian society at large, it is not surprising
that they are unlikely to exhibit much of a conscience when it comes to
participating in corruption.
The fourth Soviet factor was the catastrophic decision
by Lenin and his Bolsheviks to completely disband the existing Russian imperial
legal system and to substitute for it the “peoples’ courts,” the troikas, the
show trials and the “kangaroo courts,” all totally subservient to the Communist
Party, all divorced from considerations of justice as understood in the West,
and, instead, all primarily in existence to help the Communist Party and
government control its population. This was a system that has aptly been
called legalized lawlessness and imitation legality.
The pervasiveness of corruption in Ukraine, and its equal
pervasiveness in Russia and other post-Soviet states, cannot be understood
without understanding and taking into account the four historical legacies
identified here today. And any genuine reform requires that there also be
an ongoing push back against those legacies.
What should be done about corruption in Ukraine?
One often hears that corruption in Ukraine needs to be
eliminated or defeated. Military terms may convey a sense of urgency, but
in this context they confuse or mislead more than they illuminate. All
countries and societies have corruption, so the distinction is not between those
that have it and those that do not. The distinction is, rather, between
those whose level of corruption is systemic and
those whose level of corruption is merely episodic. All countries can be said to
be found somewhere on an imaginary corruption scale. Those in which
corruption is widespread, in which society’s attitude is that corruption is
“normal” or inevitable, in which there is no genuine effort to prevent corruption
and in which there are no law enforcement institutions that have the will and
the capacity to investigate and punish corruption are the countries at the far
end of the scale on the side of systemic corruption. In contrast those
countries in which corruption is infrequent, whose societies hold corruption to
be abnormal, where there exist rules, procedures and mechanisms to help prevent
corruption and in which there exist effective law enforcement institutions
willing and capable of investigating and punishing corruption are the countries
that are on the other end
of the scale, on the episodic corruption end of the scale. What needs to be
done is to genuinely begin moving Ukraine from the systemic corruption side of
the scale towards the episodic corruption side of the scale.
How can corruption be reduced to episodic?
There are three arenas in which action needs to be
taken simultaneously in order to genuinely reduce corruption. These are
law enforcement, societal attitudes, and economic incentives and disincentives.
Action must be taken with respect to all three because
otherwise any corruption reduction campaign will fail. Thus, a majority
in Ukrainian society must come to understand that corruption is not normal or
inevitable and not acceptable
in a healthy society, that corruption is a social cancer that undermines and
destroys real democracy, a real market economy and, therefore, a chance at
national prosperity; and, perhaps most importantly, it destroys rule of law
and, thus, any chance for justice. It is necessary for a society to change
its attitudes towards corruption because the avoidance of corruption must to a
significant degree become voluntary. There is no law enforcement system
in the world that can investigate and punish a quarter or a third of a
country’s entire population. Happily, as the result of and as reflected
by the Maidan, the change in attitudes towards corruption has undergone a major
shift in a positive direction.
But more needs to be done. Civil society and NGOs must continue to exert
pressure for true reforms. Journalists need to continue to monitor the
distance between words and deeds. And religious communities, who are not
themselves infected with corruption, need to be mobilized to play a part.
Economic incentives and disincentives are
independently important. If a public servant earns a salary on which she
cannot support a normal life style, then it perhaps should not be surprising
that she may seek bribes. Singapore is one of the few countries that managed
dramatically to reduce its level of corruption. Singapore paid its top
civil servants a million dollars a year. Even the president of the United
States does not earn half that much, and I understand that Ukraine is
experiencing economic difficulties for understandable reasons, but the issue of
economic incentives and disincentives cannot be ignored. Business in
Ukraine and the people living in Ukraine must come to understand that it is
immeasurably more preferable economically and morally to raise taxes a bit so
that public servants receive a decent salary than it is to have to spend the
same amount of money to pay bribes to those same public servants.
Just as there are public servants whose salaries are
modest but who will not engage
in corruption because their integrity will not allow it, there will always be
public servants who are already wealthy
who, nevertheless, will engage
in corruption because they are endlessly greedy. That is why an effective
system of law enforcement, whether in Ukraine or Singapore or the United
States, is an absolute necessity. By an effective system of law
enforcement I mean the following: although it may take a longer time to reform
the entire judiciary and the entire procuracy, I mean a system in which at
least the unit of
the judiciary that would be responsible for hearing corruption cases is staffed
by judges with high levels of integrity and competence; a system in which at
least the unit of
prosecutors responsible for taking corruption cases to court would be staffed
by prosecutors with high levels of integrity and competence; and a system in
which the unit of
investigators and analysts that would be responsible for discovering and
gathering evidence of corruption is staffed by detectives and analysts with
high levels of integrity and competence. Last, but certainly not least, an
effective system of law enforcement would have to operate in a legal system in
which the level of rule of law, and, thus, of justice, would be high enough to
engender public confidence in the fairness of the corruption investigations and
prosecutions that were conducted. Juries are one of the best mechanisms
ever invented to help insure such confidence.
Who can do all that?
The answer to this question is: everyone in Ukraine
must contribute; every public servant from the President to judges to
prosecutors on down to the lowest clerk at the local level, every resident of
Ukraine and every business operating here must participate in reducing
corruption because otherwise things will not change. Corruption is
something that was one of or was perhaps the principal
motivating factor behind the Euromaidan, but it must continue to be an
issue of concern, and everyone must not only refuse to participate in low
levels of corruption but must demand and keep demanding of their political
leaders that grand corruption at the top and bribes must be controlled, and
that effective law enforcement finally be created and its work facilitated.
Several months ago a prominent businessman in Ukraine
was interviewed in the press. He stated that he had expected that
Ukraine’s new, post-Maidan government would immediately enforce a zero tolerance
policy towards corruption, but the fact that it had not was profoundly
disappointing, and it seemed as if nothing had changed. Such reports and
analyses are both inaccurate and counter-productive. There is no magic
wand that a president or a prime minister or anyone else can wave to reverse
many decades of public corruption. On the one hand, it is of course
understandable why people in Ukraine feel a high level of pent up frustration,
but on the other hand, it is very important to avoid cynicism and a kind of
intellectual laziness that may be involved when some analysts or journalists
simply throw up their hands and repeat that nothing has changed because the
world has not changed overnight. For purposes of developing positive momentum
in corruption reduction, every gradual manifestation of change needs to be
viewed as a victory on that long and difficult campaign. Hence, every
improvement, however dramatic or un-dramatic, needs to be noticed and the
public needs to be informed about it, for otherwise instead of developing
momentum towards more positive change, discouragement and inertia will prevail.
A few concluding words about an effective system of
law enforcement. Given the state of the post-Soviet legal system in Ukraine,
establishing units of judges, prosecutors and investigators with high levels of
integrity and competence may not be easy, but it can be done because
of an important confluence of circumstances today: there is now, on the
one hand, a will and
desire in Ukraine to make this happen, and, on the other hand,
there is a good amount of international assistance ready to help with both
resources and advice. What Ukraine needs to do is to find or provide
appropriate leadership for each of the units I’ve discussed. This
leadership needs:
- to understand the post-Soviet legacies and
tendencies of the Ukrainian legal system so as to provide a counterweight to
them;
- to possess some experience and understanding of
international systems and standards for reducing corruption; and,
- it needs to understand how the international
community can help and how to make best use of such assistance.
Such units and their leadership must, of course, be
independent so that they are not themselves compromised or politically
undermined. Taken in its totality, there is much to be done, but it must be done in order
to reduce Ukraine’s systemic corruption and to create a new Ukraine so that its
former Soviet identity becomes merely a matter of historical curiosity.
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