Institutional change

June 25, 2014

Yesterday, after the EU meeting of Foreign Ministers, the usual press statement was released..  This one far longer than normal, but that reflects a return to the world stage of geopolitics in almost every region of the globe.

Of particular interest – and therefore the subject of this entry – was this statement:

“The Council also agreed to establish a Common Security and Defence Policy mission to assist Ukraine in the field of civilian security sector reform, including police and rule of law. In that regard, the Council approved a related crisis management concept so that operational planning can be pursued with a view to an early deployment in the summer.”

Something which ties in with many an entry in this blog over the years.  Rule of law and institutional support a continually banged drum.

“……there is an equally – if not more – important need for “the west” to support the Ukrainian institutions of state quite separately from the government.  Now is a time for those institutions to firmly plant a “keep off the grass” sign for the political class of Ukraine. The “west” need to actively encourage the institutions to do so – now – immediately – today.

Now is the time for those institutions to demand the independence necessary for democratic vertical and horizontal accountability. Now is the time for “the west” to offer robust, vocal and tangible support for any and every institution of state that comes under undemocratic and undue pressure from any new government.”

Prophetic?  Insightful? Academic?  No.  Simply stating the most obvious of requirements – requirements that still remain the most obvious now.  It is therefore somewhat encouraging to read something from the European Council that specifically aims at supporting the institutions of state – and in particular the judiciary and police.

Regardless of how you may view Euromaidan in a revolutionary context, it will not be the political class that prematurely ends any such revolution within Ukrainian society.  The surviving political class will continue to cast a wary eye and receptive ear toward civil society, for fear of a  repeat of February’s events.

The changes demanded by society (regardless of political leaning) will be prematurely ended by the failure to change the profiles, culture, and systems within judicial system and police.   In short the rule of law and equality before it – or lack of it – will end any societal revolution far swifter than the current political elite.

The political class may set the legislative/constitutional scene for an independent judiciary and accountable police force – but once done the expectation (and willingness in some cases) of the judiciary to be politically led need end.  Civil society need to continue highlighting corrupt judges and police officers.  Society need refrain from trying to buy judicial results or paying off the police.  The judiciary and police need be encouraged – robustly if necessary – to voluntarily clean their own house before being forced to do so.

As Utopian as it would be to sack everybody and start again, these institutions must still continue to work.  Thus it would be sensible that only the most serious of recent corrupt/questionable verdicts need be investigated and offenders prosecuted to send a message within the judiciary, prosecutors offices, public defenders and police.  Thereafter all current and future nefarious activities investigated and prosecuted as standard procedure.

It is necessary to be both honest and pragmatic.  Changes to institutional structure can be made almost overnight – but there is also a need to recognise that in the pursuit of the best solutions, throwing out the good and being left with the bad, is not a wise course to take.  Results take time to manifest themselves and must be given time to do so.  The question is how much time to give when measuring the results to define success – or failure.

With regard to something so fundamental to society, a wise government may decide to share such evaluation time lines with the public – and make suggestions to the public about how they can support the reforms when coming into contact with the judiciary and police during the on-going process.

To be blunt, in the current circumstances, it is not wise to sack everybody when other actors are trying to set up an alternative State within Ukrainian territorial borders.  It would perhaps be remiss to provide those people with trained and embittered judiciary and police capable of setting up new institutions within an alternative State.  Utopia will have to wait – but institutional changes cannot.

Thus EU support by way of a CSD Mission certainly cannot harm the necessary processes of reform – both in the removal of political dependency and internal institutional reforms themselves.  The support of the Council of Europe, OSCE and outstanding Venice Commission recommendations regarding reform also exist and are there to be utilised.

As for the actual reforms – there is no need to reinvent the wheel.  Ukraine is not the first and will not be the last nation to (hopefully) undergo an effective rule of law evolution.  What has worked – and what did not – are known from other transitions.  Some nuanced issues may need tweaking specifically to Ukraine, but a generally successful framework is already known, tried and tested for such reforms.

Having banged the “institutional support drum” to a lot of senior diplomats in person when asked what needed to be addressed and wasn’t being, and having written countless entries about the rule of law and need for external, independent, dedicated support for the institutions of state – and rule of law is the root cause of almost every problem in Ukraine past and present – it is somewhat pleasing to see the European Council recognising this problem and actually proposing something that addresses political, civic, economic and social problems simultaneously through tackling a single pillar of the Ukrainian system.

It is dependent upon Ukraine to accept and make the most of the assistance being offered – but if that assistance is taken in good faith, it is then incumbent that the CSD Mission have the energy and presence in Ukraine to effectively monitor recommendations, implementation and results.



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