Asylum, Schengen and proportional representation

Now here is an interesting little story – somewhat comical to a degree – which leads nicely into Ukrainian voting systems.

Andriy Shkil, a former Batkivshchnya (BYuT) MP of the previous parliament, has been refused asylum by the Czech Republic, a nation well known for granting asylum via the historical legacy of Vaclav Havel who rarely turned an application down.

Why did the Czech Republic refuse his application for asylum?

The answer lays within the Schengen Visa system.

Although free to travel anywhere within the Schengen area once a Ukrainian has a Schengen Visa, they have to enter and egress the Schengen zone via the specific nation that granted the Visa.  If Poland granted the Visa, a Ukrainian who wanted to visit Italy for example, would have to travel there and back via Poland.

Personally I don’t know a Ukrainian who isn’t aware of the rules – although undoubtedly there will be some.

Logic would dictate, following on from such basic rules, that if an individual is going to claim asylum somewhere within the EU, that also will necessarily need to occur in the nation that issued the Visa, rather than seeking asylum in any EU nation an individual may take a fancy to.  Ultimately, a nation issuing a Schengen Visa must have some responsibility for their decision to grant – or not – an individual entry, for it is their decision and not that of any other Schengen area state who may well have made a different decision.

And so, in a way, it is rather comical that a one-time parliamentarian – an individual supposedly bright enough to have been trusted in creating and supporting – or not – Ukrainian legislature, has tried to claim asylum in the Czech Republic on a Schengen Visa issued by France.

Naturally, had Mr Shkil been reelected to the current parliament, he would not be seeking asylum anywhere but enjoying the immunity and impunity being an MP brings – and the fact he is not in parliament today it is not because he was beaten in any constituency seat, but rather due to his very lowly place on the Batkivshchnya Party list when it comes to proportional representation.

The Ukrainian electoral system is a mixed electoral system where 50% of MPs are those who take office through what is officially called Single Member District Plurality (or First Past The Post as most would recognise it), and 50% of MP seats are in parliament due to how high they are placed on their party list vis a vis the percentage of the vote their party gets.

Naturally all the top places on party lists go to the leaders to insure their place in parliament without having to go through the rigors of actually standing against another in the first past the post system in a constituency seat – as they may lose and that would never do!

Placed at 87 on the Batkivshchyna Party list, either Mr Shkil was not willing to pay enough to those who make the party lists to be placed higher, or he was such a poor performer during his tenure that his placing was deliberately done to insure he would not return to parliament.  Given the high number of poor performers on most party lists, he was either simply out bid or truly useless beyond comprehension.

Anybody on party lists lower than position 50 are in a precarious position and are certainly not assured of representing a party in parliament.  87th on a party list is a clear signal you will not get your nose in the RADA trough.

Even if we look at the ways of manipulating the proportional representation part of the vote, 87th place would simply not have been high enough to reasonably expect a return to the RADA.

If we look at the independent form of mixed electoral systems, then the 50% of first past the post seats run completely separately and in parallel to the proportional representation 50%.  This system can lead, for example, to a party winning all the constituency seats and then half of the 50% of seats allocated by proportional representation – thus giving a party 75% of the parliamentary seats.

Alternatively there is the dependent mixed electoral system, whereby proportional representation places parameters on the system, thus is therefore somewhat dominant over first past the post.  For example if a party wins 40% of the national vote, then their party members who win their seats through the first past the post constituency elections take their seats, followed by a remainder from the party list until it reaches the 40% of the popular vote it won.

Yes there are occasions under the dependent system whereby a party may win more seats in the first past the post constituency seat elections, than it should hold under its share of the proportional vote count.  Should that be the case, these “overhanging” seats in excess of the proportional vote are honoured and the parliament extends to accommodate the additional MPs for that session – whilst everybody else is represented by their proportional share of the vote.

None of this would have helped Mr Shkil at such a lowly place on the Batkivshchnya Party list – and neither would manipulating the size of voting districts – as Ukraine, for the purposes of its proportional representation, is seen as one big district rather than allocations on a proportional basis by Oblast (county) level.

Quite simply, the smaller the district, the smaller the number of proportional seats available, and thus the higher the percentage of the vote needed to win a seat.  The larger the district, the more proportional seats available, the lower the percentage of the vote needed to win a seat – not rocket science (albeit political science summed up by the formula X  1/(X+1)).

Anyway, enough of that academic waffle – Mr Shkil is now in France duly seeking asylum there.  The question is, will France grant it given that it is not normally that accommodating compared to the Czech Republic – a nation that was obviously Mr Shkil’s first choice when submitting his asylum application.

A mixed day for the Ukrainian Ministry of Health

A day of contrasts for the Ukrainian Ministry of Health on Wednesday – albeit one with symptoms that runs through the current government.

Firstly and in a move lauded by Human Rights Watch, the decision to approve easier access and dispensing of pain killing drugs such as morphine to terminally ill people was approved.

“This is a major advance, ensuring that Ukraine’s drug policy addresses the legitimate needs for medical opiates for pain relief.  Tens of thousands of patients who are in pain will benefit from this reform.” – Diederik Loham, Human Rights Watch

Some pain relief for a nation all too often decried for its human rights issues.

Thus it should have been a good day for those within the Health Ministry, and in particular the Health Minister Raisa Bogatyryova.

Raisa Bogatyryova

However whilst Human Rights Watch was quite properly lauding the aforementioned decision, the cancer called corruption, a systemic disease that cannot have the pain dulled by morphine, was simultaneously being called to account in relation to the Health Ministry by the RADA.

With the Communist Party unusually siding with the opposition, a vote was taken and passed to create a parliamentary committee and inquiry into corruption within the Health Ministry and opaque purchases of UAH 203.48 million of drugs from certain companies.

One has to strongly suspect that once the biopsy of the opaque drug purchases has been made, more than a hint of corruption will be found in the system of the Health Ministry.

The question then arises over whether the infected parts can or will be efficiently surgically removed and if so, whether remission will be a long lasting result.

Sadly, I fear not!

An aligning of the planets? Tymoshenko

Recently I seem to have mentioned the circus that is and surrounds Yulia Tymoshenko far more than normal.

That is perhaps understandable given some EU leaders insistence upon her release to guarantee the signing of the EU/Ukraine Association Agreement in November at the Vilnius Summit.  Other EU leaders would prefer to march on and sign the agreement whether she be free or not.  A not uncommon state division over policy EU foreign policy affairs it has to be said.

A few days ago, I wrote about the prospects of a Tymoshenko release after the official recognition of an all female MP plea, during the Orthodox Easter and why such timing would be no bad thing.

As I wrote, that petition was sent to the Pardons Committee.

Since then Prime Minister Azarov has stated that her pardoning cannot occur until all pending court cases have been heard – which is completely untrue.  She can of course be pardoned for those offences of which she has been found guilty already – albeit other cases in the judicial arena are bound to carry on until guilt or innocence is found.

For Prime Minister Azarov, it make make bureaucratic sense for all her pending cases to come to whatever conclusion they may prior to any pardoning – but that is not how the rule of law, Pardons Committee nor human rights work.  More to the point, the Prime Minister does not consider or grant pardons and therefore his opinion should be seen only as that – despite his position.

The system indeed allows for her to be pardoned at any time for the offences she has been found guilty of – regardless of any pending legal proceedings despite what Mr Azarov states.

In fact, the Pardons Committee is due to consider the aforementioned all female MP plea on 29th April, and following on from yesterday’s entry where I pondered just how fast ECfHR fast-tracked cases actually move, I now discover that the ECfHR ruling is supposedly due on 30th April – giving Ukraine the opportunity to grant her pardon prior to what is likely to be a rather pointed judgment from the ECfHR in favour of her release over procedural issues that fall well below the expected European normative.

In short Ukraine internally has the opportunity to recommend and grant her release immediately prior to the ECfHR ruling,  thus taking much the sting and media interest out of that particular tail, whilst also being seen by much of the domestic audience to meet the symbolic motivations due to the Orthodox Easter.

Of course regardless of the Pardons Committee recommendations (if in favour of a release), or the ECfHR ruling, Ms Tymoshenko may remain in jail anyway pending any Ukrainian appeal against said ruling.

Nevertheless, perhaps the planets are indeed aligning for an Orthodox Easter pardon – which I have mentioned many times, would not surprise me should it occur.

That said, as I have written before, if Tymoshenko is not released before or during the RADA summer recess then I seriously doubt that she will be before 2016 – thus it is unlikely any deal will be signed and everyone will have to resort to Plan B – the quiet implementation of parts of the DCFTA most expedient to both sides.

Is Poland about to upset the Svoboda Party?

Well it appears that the power of the Party of Regions knows no territorial limits.

So powerful is it that it can apparently influence the parliaments of neighbouring countries over historically controversial  issues.

I am referring to the proposal currently passing through the Polish Sejm which seeks to declare the Organsiation of Ukrainian Nationalists (OUN), the Ukrainian Insurgent Army (UPA) and the SS Galicia Division criminal organisations that committed genocide against ethnic Poles during World War II.

The Svoboda Party seems to believe that the Party of Regions is behind this move within the Polish parliament.

Naturally the PoR will revel in this as much as Svoboda will rile against it – after all, how often do you get to see your nationalist political opponents heroes cast as genocidal war criminals by an EU State?

But does anybody actually believe the Svoboda spin that the PoR are powerful enough to sway the Polish Sejm over such an issue – a long held emotive issue for the Polish at that?

No, I don’t either.

Ukrainian civil society and the media – A bit of a mess

Not for the first time I turn my eye to Ukrainian civil society – in particular the issue of a perceived need for a specific law guaranteeing the right to peaceful assembly and protest (which is indeed guaranteed by the Constitution).

Regular readers will know, so many times have I written about Ukrainian civil society that if I were to link to each entry there would be dozens of links in this entry.  For those who don’t want to enter “Civil Society” in the search facility of this blog and be faced by the numerous entries that will be listed, a suitably median sample of my thoughts on Ukrainian civil society can be found here.

Naturally the problems listed in that link – and others in many other entries – continue to exist within Ukrainian civil society.

Excluding the Orthodox Church as a civil society actor, civil society still operates with about 5% of the Ukrainian populous taking part – an almost static percentage since 1991 and Ukrainian independence.

Ukraine still has far less civil society actors per capita than the vast majority of Europe – something that is hardly surprising considering civil society’s inability to capture and expand public participation over the past 22 years.

Thus civil society remains further away from the society it purports to represent than the political class does both in overall presence by way of meeting the public face to face frequently (if at all) and also by self-projection via the media to the public.  A few clever lines and quotations on Interfax Ukraine or a brief appearance on Inter or Kanal 5 television channels etc, are not likely – and have actually proven not to – increase the Ukrainian public participation in civil society.

It is seen – and acts like – an elitist bubble serving either its own, or its financial donors interests first and foremost – both reasons not endearing to a cynical and distrustful Ukrainian public.  An image not helped in any way by the clever thinking, quotations and TV appearances coming across as an “adult to child” lecture to the population, rather than the “adult to adult” conversation it necessarily needs to be when purporting to represent society over issues the political class demonstratively fails to respond to.

In short, the visibility of civil society in every day Ukrainian life for almost all 46 million Ukrainians is practically zero – I don’t even remember the last time I saw a civil society actor raising awareness of its existence or cause in the streets, let alone engaging in something as basic as face to face public opinion surveys in relation to support – or not – for its cause.

To the contrary, walk along any high street in the UK and you can expect to be accosted by Help the Aged, Amnesty International or any number of international, national or local civil society actors.

However, this is not the issue I raise today.  I have historically written that NGOs and civil society actors will often turn on each other – for various reasons.

This may be because they are a pseudo-NGO that is in fact a government sponsored entity thrown into the civil society mix in order to back the government line and therefore give the government line some form of civil society credibility, or they have simply allowed themselves to become too close to government to advance their cause (even glacially) to the point they deem it necessary to attack other civil society actors who may begin to gain the government ear to which they have become accustomed, or simply to rubbish competitors in the fight for funding.

With this in mind, one wonders what is going on here, why, to what end and who is ultimately behind it?

This statement in relation to human rights and freedom of peaceful assembly legislation may actually be correct in its content relating to the options on the legislative table – “According to UHHRU, best of all meeting these standards is the bill supported by the Coordination Council for the Development of Civil Society under the President of Ukraine. The Union believes that it may serve as a basis for the successful achievement of the purpose set by human rights activists.“

Just because it comes from the presidential circles doesn’t make it necessarily bad or something to rally against simply because of the legislative origin.  Good policy and good legislation is just that – whether it comes from the presidential administration, parliamentary majority or parliamentary minority.

And yet this statement follows – “UHHRU called on civil society organizations and activists to stop manipulating its position in relation to the law on freedom of peaceful assembly, and on the media and journalists to take into account that the statements of the initiative For Peaceful Protest have nothing in common with the position of UHHRU.“

Which is worse?  A fellow civil society actor with similar goals manipulating the UHHRU position – or the media who seemingly (and unfortunately regularly) are muddying the waters with slip-shod reporting, rather than helping set public opinion by accurately reporting the different and definitive positions of the civil society actors involved?

For me, the media come out of that statement far worse than any competing civil society actor.

As ineffective as civil society in Ukraine generally is, whatever individual actors do say, should at the very least be accurately reported and their positions clearly identified if the media is to fulfill its role in framing public opinion and debate.

Thus, not only is the Ukrainian opposition in a mess as far as lack of policy, leadership etc. is concerned, civil society which would be the next vanguard against any government running amok is seemingly intent not only upon remaining out of touch with society itself, but also engaging in infighting.

A situation nicely topped of with a slipshod 4th estate incapable of reporting on “independent” civil society actors accurately.

Amongst all this, due to the circus now surrounding it, I have almost forgotten about the freedom of assembly legislation and the inherent human rights/liberties issues that should be the only story.

Did you?

Human Rights – The US Magnitsky List

A very short post today because I am decorating the balcony – the weather is good enough and the good lady’s “lobbying” has eventually ground me down into compliance!

It also has nothing to do with Ukraine (at least directly or currently).

However, there has been a lot in the press in the build up to – and subsequent release of – The US Magnitsky List.

The US public release was naturally followed by a public Russian list of US officials also considered to be “human rights abusers” ranging from those involved in Guantanamo, those involved  in”enhanced interrogation techniques” and legal opinion allowing it, to the Victor Bout prosecution.

Indeed an expected Russian response.

However, if we are to presume that human rights are at the core of the US Magnitsky law and list, then there is one very poignant question to be asked -

Will it advance human rights in any way whatsoever in Russia?

With Russia responding with nothing more than a list of its own as expected, quite obviously the answer is clearly not!

Therefore was it a policy driven by human rights – or a policy driven by other motives considering the very predictable short, medium and long term outcomes?

For certain human rights within Russia will gain nothing from the US Magnitsky Law or list, regardless of the real or perceived motivation behind them – in fact the effects are likely to be sadly quite counterproductive.

Anti-hate bill fails to pass through the RADA due to lack of opposition support

Oh dear, oh dear, oh dear!

The latest attempt to get an anti-hate bill passed through the RADA has failed – and not because of the actions of the ruling majority – but those of the opposition parties.

It can do nothing but cast doubt on the opposition wanting to meet the EU normative where human rights and human dignity are supposed to be a core and uncompromisable overarching principle.

Whilst 169 Party of Regions present voted for the bill – I suppose rather unsurprisingly the Svoboda Party en masse voted against it.  After all, what self-respecting far-right nationalist party would vote for an anti-hate bill that would restrict its ability to promote hate at the expense of human dignity?  (Rhetorical question!)

Most surprisingly – or perhaps not given the potential voter gains made by UDAR in the East of Ukraine – almost every single UDAR MP abstained from the vote.  Pontius Pilate would be proud even if I hang my head.

Possibly worse still, 58 Batkivshchyna Party members voted against the draft legislation in chorus with Svoboda.

Strictly pragmatically, for the sake of opposition unity and keeping Svoboda “on board”, it is possibly understandable that the other opposition parties effectively prevented a draft law that may have stopped Svoboda Party members such as Ihor Miroshnichenko openly calling well known Ukrainian actresses like Mila Kunis a “Jewess” on his Facebook page – a statement that generated this reaction from the Simon Wiesenthal Centre “insidious slur invoked by the Nazis and their collaborators as they rounded up the Jews to murder them at Babi Yar and in the death camps“, and this from the Ukrainian Jewish Committee “The last time this term was used in an official way was during the Nazi occupation“.

It was certainly a draft law that would have made it far more difficult for those without political immunity from engaging in anti-hate propaganda – even if Ihor Miroshnichenko could continue to act with impunity due to being an MP.

One can only assume that this will be seen by the EU in particular (and numerous other international observers) – as going robustly against a core EU principle and nothing short of “disappointing” in diplo-speak – In short, none of the opposition parties will come out of this particular vote very well, and it will further paint a picture of an opposition whose only interest is to regain power at any cost, rather than create a nation based on EU ideology with legislation and policy to match their declared aspirations of EU parity and integration.

There are issues when principles and ideology need to trump political alliances – Svoboda seem to be the only opposition party to have stuck to their ideology – a major ideological and ethical FAIL for Batkivshchnya and UDAR is the only way I can view what has happened here, and it also raises doubts over the leadership qualities of the leaders concerned.

I have to say I am bitterly disappointed that one of the few truly human dignity based ideological policies to be raised in the RADA of late – anti-hate legislation – where you would hope for broad cross-party support, has been sacrificed at the alter of opposition “political unity”.

Authoritarian, dictatorial, disciplinarian, democratic or “managed” democracy?

How would you interpret the following – Authoritarian, dictatorial, disciplinarian, democratic, a form of managed democracy, or something else?

“No one is banned from proposing their candidacy for the mayor.  We are a democratic organization, a democratic party and the united opposition is building its policy on democratic foundations.  Any MP, and not only MPs, but members of the party can be nominated.

 But as soon as the united opposition passes a decision to nominate a single candidate, those who oppose this decision will in fact oppose the opposition and help the ruling party.

Therefore there should be a single candidate.  Anyone who disagrees with this, all those who play along with the authorities, will certainly be expelled from the faction and the party.  Everyone has an opportunity to offer their candidacy and be nominated, but after the decision is made, we should strictly follow it.  This is the principle for our victory.”

Those are the words of Olexandr Turchynov MP, one of the most senior members of the Batkivshchanya Party.

If you genuinely believe in the party but continue to disagree with a party nomination after it is made – does it truly warrant being expelled – particularly so when the party nomination may be for somebody external of your party, as is the case with these tactics of the “United Opposition”?

Should Batkivshchyan MPs be expected (under threat of expulsion) to unconditionally support the nomination of  UDAR’s Klitschko or Svoboda’s Tyahnybok, when these parties and these leaders chose quite deliberately not to assimilate with Batkivshchyna, but retain their own identities and ideologies?

What about society?

Should the voters not have the right to vote for a candidate from the same party they supported and propelled into the RADA, for the position of Kyiv Mayor?  Is it really democracy when voters are denied the opportunity to vote for a candidate from the party they support?