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Accepting the “OK” in the pursuit of the “good”

October 5, 2014

Yesterday President Poroshenko stated officially that he would sign the lustration law – despite acknowledging its numerous flaws.

“I’ve thoroughly studied the draft Law “On Purification of Government” in the version that has been adopted by the Verkhovna Rada the last week. It is not flawless. It has a lot of problematic moments. A lot of innocent people will have to go through a humiliating procedure. I am not happy with that. I’d wish for the better. But in current circumstances, the Law will be signed”.

“We will finally put this issue into legislative framework. It was the main reason for the adoption of the law. The country must purify itself and it must be carried out under clear procedure regulated by the law.”

A very honest appraisal – the lustration law passed is far from being good.  In fact it just about manages to reach “OK”.

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.

The presidential decision appears to be very much a case of not throwing out the just about “OK” in the pursuit of the “good” and being left with nothing but the existing “bad” situation.

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?  Lustration will surely begin very shortly after the law is signed, and certainly almost immediately after a new RADA takes up its mandate.

As the first branch of power for lustration necessarily need be the judiciary, how wise is it to subject those learned (and corrupt) individuals to a law that is “OK”, will probably be amended after they have been subjected to the original text, and therefore open a can of “appeal” worms?

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.

So, can all necessary amendments be drafted prior to any new RADA sitting, in order that one of its first acts is to turn this “OK” legislation into “good” legislation by adopting Venice Commission recommended amendments and acknowledging Constitutional Court concerns prior to the lustration law going through the Ukrainian judiciary, civil service, law enforcement and every other institution of State like the proverbial dose of salts?

Is there a case for more haste and less speed to avoid as many ECfHR cases as possible, or is there a recognition that the first 100 days of a new RADA under a newish president needs to produce serious reform that is effectively implemented and results seen and felt by society – lest societal anger once again manifests on Maidan?  “OK” legislation therefore will have to do.

lustration

There is also a question of what then to do with all the lustrated?  It is one thing to raise sufficient doubt about lifestyles far beyond declared means ultimately resulting in a lustration from office – but perhaps quite another matter to provide evidence of specific crimes sufficient for trial and incarceration.

A well educated, affluent, corrupt, well connected, ethically bankrupt and embittered set of people in large enough numbers could become a shadow civil service administration, together with a shadow legal and law enforcement system, given the right encouragement and backing – and you don’t need to look far within the Ukrainian neighbourhood for those prepared to provide that encouragement and backing.

If the numbers to be lustrated are to be deliberately kept small enough to manage any such risk, then that calls into question the genuine purification process being purported and that society is expecting.  Worse, any small number then becomes perceived as a political witch hunt where rule by law selects those who fall foul of the process.

Is it a good idea to accept the “OK” when the “good” can be achieved – or a sensible thing to introduce the “OK” when the need to tackle the “bad” is absolute and immediate in the minds of the electorate?

President Poroshenko stated “I am confident that the given law is rather more positive than negative and it will make Ukraine better.”  – Maybe so, maybe not.

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