Archive for January 17th, 2014

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Bill 3883 – Ability to remove MPs immunity – Welcome to a Belorussian future

January 17, 2014

As mentioned at the very end of today’s earlier entry, I said I would comment upon a few of the 9 laws voted upon and passed in the RADA over a period of 1 hour and 8 minutes – and without discussion or debate – none of which, it has to be said, do democracy any favours by way of mechanism or outcome in Ukraine.

In fact they form part of a clear road map to a Belorussian future.  The current administration, seemingly have decided that democracy is not something they are particularly keen upon any more.

Amongst that raft of terrible legislation, I will skim over the requirement for NGOs to now include the phrase “public association , which serves as a foreign agent” if receiving assistance, finance or instruction from sources external of Ukraine.

I shall bypass the criminalisation of defamation and thus the neutering of the media because of politically controlled courts that even when truthful and factual articles are presented, can and will be easily ruled against, with defamation charges, convictions and damages to follow as a consequence.

I shall brush past the new requirement of mass media providers on the Internet now requiring licensing, or more than 5 cars in a convey being banned, or the wearing of masks or helmets at protests being outlawed.

I will temporarily omit to commenting upon a new requirement of “permission” rather than “notification” for semi-permanent stages etc at demonstrations, an amnesty law that now includes the Berkyt from prosecution over past actions – all Euromaidan-centric in their purpose.

At least I will for now – though these are all very troubling laws.

Instead I want to concentrate upon the new law authored by Vladimir Oliynik, which whilst not seeking to remove MPs immunity carte blanche, seeks to make it far easier to do so than the current process allows – Of them all, this law worries me the most by far.

Immunity and impunity go hand in hand within the higher echelons of the Ukrainian political elite.

Absolute immunity a constitutional right misused by MPs past and present almost daily, regardless of political party.

A consistent but empty promise by the turkeys that they will indeed vote for Christmas and remove their immunity one day goes back many years – 2009 in this example (where there were more than enough votes to accomplish it initially) – and despite being revisited as recently as 2012, has still to materialise –  unsurprisingly.

Under normal circumstances, some would expect a vocal and consistent advocate for democracy like me to see this new law as a small step in the right direction – and perhaps it would be – except the circumstances and atmosphere in which this law has been introduced makes it much more of a concern than a step in the right direction.

Politics, like comedy, is much to do with timing when it comes to its reception.

I shall acknowledge that this simplifying of the immunity removal procedure, together with another of today’s choice bits of legislation that defines extremism as “interference with or obstruction of the activities of public authorities“, would seem solely aimed at making opposition MPs involved in Euromaidan – which by the above definition is now an extremist entity – easier to arrest and jail, for they are by association and participation “extremists”.

As extremely worrying as that is, this particular law relating to the ease of removing MPs immunity has even greater and disasterous repercussions than many may see initially.

It is why in the last blog entry I deliberately chose to use expression “Belorussian future” when stating I would make a few comments on the new laws.

Law 3883 not only makes it far easier for the ultimate power to jail opposition politicians, civil society actors and the general public – it must also be viewed through a lens that is not in any way Euromaidan-centric.

Looking at the much wider political picture, this new law enables the ultimate power to finally gain absolute control over all of its own MPs – regardless of any oligarchy sponsor those MPs may have.

Eventually, when reality dawns on them, every MP will fear their immunity removed and subsequent prosecution/persecution for numerous nefarious deeds past, present and future (entered into willing or actively coerced),  if not voting as told to by the ultimate power – irrespective of their usually obeyed oligarchical instructions.

Containing the oligarchical influence on politics in Ukraine is a necessity both for democracy on the one hand, and also for an absolute dictatorship on the other.

Should law 3883 pass a second reading and get signed into law, the currently “owned” MPs by various oligarchs will cease to be – subsequently becoming owned by the ultimate power, less they be stripped of their immunity, mandates and ultimately thereafter their assets – with prison terms added for good measure – in double quick time.

Thus whilst the other laws could be removed from the statute books by a change in power, it will be almost impossible to change the power if the power decides to extend its mandate indefinitely/permanently with a compliant and scared parliament on both sides of the political divide, and a neutered oligarchy by extension.

Thereafter, short of an absolute parliamentary coup robustly backed by the oligarchy and society that results in the removal of the ultimate power, a genuine personalised dictatorship exists.

That in turn reduces the chances of a peaceful and negotiated exit for the ultimate power in the future – chances that still exists today, but are greatly reduced each and every time such abysmal and undemocratic laws are passed.

The smaller the chances of a negotiated and peaceful exit for the ultimate power, the more the grim determination to hang on at any cost – and the uncomfortable question of eventual succession.

Thus law 3883 potentially leads to a road map and less than warm welcome of a  Lukashenko’s Belorussian future for Ukraine – unless this law in particular is stopped now.

Now it may well be that the MPs and their oligarch sponsors did not know what they have actually voted for today with Bill 3883.  The entire introduction and subsequent vote (by hand-count) lasted exactly 81 seconds.  I’m not sure I could count 200+ raised hands accurately in 81 seconds, let alone introduce the bill to the legislature prior to that within such a time frame.

Add to that the draft of this law was conspicuous by its absence on government websites yesterday for perusal, it is quite possible nobody knew what they were voting for, or had considered the possible personal repercussions in the future.

Perhaps they voted for it as what they thought – or were told – was a part of a package of measures to end Euromaidan – but Law 3883 has a far greater reach – which hopefully the diplomatic community will be swiftly and robustly explaining to the oligarchy privately, who as a result and with any sense of self-preservation, will instruct their MPs to vote against the law at the second reading considering the unlawful way in which they seem to have been passed – less they consciously want to cede the very real possibility of an absolute dictatorship to which they too will become completely subservient.

I suspect however, they will be signed into law within hours and all will be too late.  The misuse of legislation for autocratic rule, replaced by a legislative platform allowing dictatorship.

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The legalities of the Klitschko candidacy – ECHR next stop?

January 17, 2014

Way, way back on 1st July 2013 I wrote about the Rule of P and Article 103 of the Constitution of Ukraine being a necessary consideration that required confronting soonest by Mr Klitschko and his legal team.

This was long before Mr Klitschko announced his presidential bid officially, and long before Tax Code amendments were used to add further difficulties to his challenge.

In fact I wrote it long before it became fashionable to think about somebody using a long existing law with an elastic – until defined – word such as “residency” to scupper any presidential ambitions he may have then held.

Since then that definition of “resident” would seem to have been dealt with by subsequent amendments to various laws.

It was to be expected albeit probably for politically nefarious purposes now – but an issue within the constitution that sooner or later needed to be defined.

Perhaps the RADA will eventually get around to defining what a “jury” is and then allow every Ukrainian their constitutional right for a trial by jury so far deprived of them by every president and parliament since the constitution was adopted.

Anyway, yesterday, Mr Klitschko rightly pointed out that those aforementioned laws defining “resident” have been amended to act as additional hurdles to his candidacy – which of course they have as I predicted long ago.

The Central Election Commission quite wisely and quite rightly referred the new laws to the courts, as despite Mr Klitschko officially announcing his presidential bid prior to legal changes being signed into law, he has not yet registered as a candidate for the presidential elections with the CEC as far as I can tell.

Thus the laws are seemingly in place prior to his official candidacy registration by way of bureaucratic requirements, despite public proclamations.

Though the laws have been amended after he officially stated he would run but seemingly prior to any official registration, the question of retrospectively applying the laws is raised – should they be ignored as he announced his candidacy prior to the new laws taking effect, or should they be robustly observed as they were the law prior to the formalities of bureaucracy?

Subjective and emotive questions to one degree or another depending upon the point of view of the reader.

If there is a current upside, Mr Klitschko has a point relating to the fact he is currently an MP and thus must have met the criteria to run for that position – including the “residency test” previously.  The only difference between MP and presidential candidacy requirement being 21 years or older and the previous 5 years resident in Ukraine for an MP, and 35 years of age and the previous 10 years resident in Ukraine for president.

That said, he met the MP criteria when “resident” had a far more elastic interpretation than it does now after legal amendment – somewhat muting that line of arguement for some.

Further I very much doubt the CEC even bothered to consider “residency” in great detail when allowing his candidacy previously – the stakes were not that high that anybody was paying attention to a party leader on a party list nomination whose party popularity and political future was then unknown –  Such nit-picking and far more exacting scrutiny occurs for those candidates involved in the first past the post electoral seats where the CEC and regional subordinates are subjected to intense political pressures from all sides to do things “this way” – or “that”.

Thus, now starting to predictably lose court battles in Ukraine relating to the new legal definitions of “resident”, Mr Klitschko has stated matters may progress to the European Court of Human Rights – Quite right, but will it do him any good as far as the 2015 elections are concerned?

I closed my 1st July 2013 entry with a paragraph dedicated to timeliness and he need to deal with Article 103 of the Constitution immediately.

When I wrote it there were 22 months before the March 2015 elections.  There are now only 14 months.

As yet, Mr Klitschko has not been prevented from running for president – thus there has been no possible breach of his human rights to rule upon – yet.

Any such breach will come down to whether the ECHR considers that the legal amendments were deliberately done to prevent his running specifically – or not.  There is little wrong with the actual law or the subsequent defining of “resident” for constitutional clarity going forward.

The question is therefore if/when this law will be applied to Mr Klitschko.  The later it happens, the later he will appeal to the ECHR – and the ECHR is not the court you want to be approaching for swift legal rulings.  Even expedited cases take a year or more for any initial hearing to occur in Strasbourg – longer to actually get a full hearing and legal outcome.

It also has to be noted that even if there is an ECHR hearing and ruling that miraculously occurs within record ECHR time frames, it can be appealed, and thereafter Ukraine would still need to implement any such ruling if the ECHR ruled against Ukraine.

The ECHR may be the court of last resort – but it is also the most glacial of entities with a very long waiting list of cases.

Again I return to the matter timeliness I raised 8 months ago.  Presidential election dates were already known, Ukrainian court rulings easily predictable, and the speed at which the ECHR works is clear to all.

Lastly, for the purposes of this entry, Ukraine would not be the first nation to stall or fail to implement an ECHR ruling – many don’t or take considerable time in getting around to doing so –  the UK has more than 20 such outstanding and unimplemented ECHR rulings, some of which are years old – including those of an electoral nature.  The UK is not the only sinner in this regard either.

Thus, all I anticipated almost 8 months ago when the situation in Ukraine was markedly different than it is today, still holds true – and the ECHR, I fear, will come far too late to help Mr Klitschko if the March 2015 electoral date is to remain immovable.

(Later, possibly some thoughts on a few very worrying laws submitted to the RADA today that point toward a possible Belorussian future!)

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