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Mens Rea – Draft legislation

March 3, 2015

Last week, a semi-serious tweet relating to a piece of truly awful and retarded legislation was made:

The draft law set out to amend the Criminal Code of Ukraine, basically making any criticising of governmental authority a criminal offence:

“Article 339-1. Deliberate actions to undermine the authority of the state and its authorities.  Socially dangerous illegal acts that infringe on the authority of Ukraine as a sovereign state, public vilification, abuse, defilement or other actions aimed at undermining the authority of the state government, local government and civic Ukraine and/or cynical, contempt and rejection as certain structural elements of the system of public administration (its relevant authorities) and the state as a whole, which in the future may entail a violation of established social norms and rules of social and political system and life -punishable by correctional labor for up to two years, or arrest up to six months or imprisonment for up to three years.”

As stated in the tweet, any serious intentions to pass such a law would have meant a deliberate turn away from “European integration” – and particularly worrying as “illegal acts” have a habit of ever increasing, rather than decreasing, in every nation.

It could be argued in fact that within the extremes of elasticity of language and interpretation, the criminalising of libel, slander and defamation were also all contained therein against a certain class of people.

Konstantin Mateychenko

Konstantin Mateychenko

The Draft Bill was submitted by Konstantin Mateychenko, member of Prime Minister Arseniy Yatseniuk’s party.  Indeed he reached the RADA as number 26 on the party list and hails from the Donetsk region.  That Mr Mateychenko sits as “Chairman of the Subcommittee on Legislative Support of Preventing and Combating Corruption Committee of the Verkhovna Rada of Ukraine on Preventing and Combating Corruption” would and should make eyebrows raise even more.

However, given the current, generally democratically orientated, and still prevailing reformist mood – not to mention dependency upon western/European money in return for reform – there obviously was not much appetite for entertaining, let alone passing, any such retarded and retrograde legislation.  Both members of his party and the Prime Minister calling upon Mr Matyechenko to withdraw the Bill a few days ago, even before civil society focused very clearly and publicly upon challenging such undemocratic nonsense yesterday.

Even if the very slim chance that this legislative snowball had in managing to pass through the parliamentary hell, external diplomatic pressure would almost certainly seen the President veto such a Bill rather than sign it into law.

Ergo, as should always be the case with any proposed legislation, it is a question of mens rea (intent) and lawful necessity that arises.  In short what is the law meant to achieve (and will it achieve it), and is it needed (can it be justified)?

Thus, why would Mr Matyechenko submit such a potentially undemocratic draft Bill in the realisation it stood almost no chance of becoming law?  (Although he has every right to do so upon his own initiative, as all MPs do.)

To see if civil society was still focused?

Is it that Mr Matyechenko simply doesn’t like democracy and is using the democratic system to attack it from within?

A question of well meaning intent, but exceptionally shoddy legislative crafting?  If so, nothing unusual for Ukraine it has to be said.

Is he perhaps expecting to be subjected to criticism in the near future, and was thus hoping to prevent it?  (Particularly in lieu of the recent vote to remove MPs immunity (and impunity) should it get the Constitutional Court’s “nod” perhaps.)

Is it that his understanding of democracy is simply so shallow?  If so, that would indeed be representative of a part of the Ukrainian constituency he represents.

Was he paid/bribed/encouraged to submit the draft Bill?

For what purpose if so?  Was it submitted to undermine the image of, or create friction within, the Prime Minister’s party?  Who would benefit?  President Poroshenko?  The Opposition Block?  Mr Kolmoisky?  All, or any combination thereof?

An attempt to split the coalition via an erosion of democratic reform through a series small undemocratic anti-reformist wedges being driven into cracks?  To simply replace key figures?

Was it perhaps introduced deliberately to be specifically and publicly rebuffed, thus increasing the “democratic credentials” of the Prime Minister’s party – or the coalition collectively – prior to making some decisions that will be very unpopular (if necessary), as something of a mitigation factor?

After all, politics in every nation is something of a theatre – and Ukrainian politics is very often the theatre of the absurd.

When it is abundantly clear such a Bill passing in the current climate was nigh-on an impossibility, and yet the Bill is still submitted, whilst all may concentrate upon the draft Bill and its contents, there is an equally important question of “why” it was submitted to be asked and answered.

If the RADA is a stage, upon each MP plays their part, whose part was Mr Matyechenko playing – if not his own?

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