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“The country must purify itself” (Unless I decree otherwise)

June 25, 2015

A long time ago, the first of many entries was published following the presidential signing of what was, and remains, a very poorly crafted “Lustration Law” – better known as the “Law on purification of the government”.

To read more upon the blog predictions and, as predicted, the results of this law, simply put “Lustration Law” in the search facility of the blog.  There are far too many links to put in this entry.

Indeed, the above link quotes President Poroshenko stating, “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.”

The entry concluded thus “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.

Whatever the case, and whatever the on-going problematic outcomes, many of which will end up at the ECfHR, the president signed the law, despite acknowledging its extremely flawed text.  So be it.  Knee-jerk legislation today, decidedly expensive recompense and unwanted ECfHR headlines tomorrow.   Nevertheless, the law of the land is the law of the land – even if the law of the land if awful and fraught with future (yet avoidable when drafting) problems.

Taking into consideration the inability of the overwhelming majority of Ukrainian lawmakers to craft anything like decent legislation, together with a then still very volatile public demanding to see the old corrupt elites and functionaries removed from positions of power, the spirit behind the law – not to the mention political fear (and no shortage revenge) that drove it through the Rada – is perhaps understandable.

When thinking about law making, the first question is always “is it necessary?”.  If it is not necessary then it need not exist.  The moment that a Ukrainian government actually goes through the existing statute and begin repealing a whole tome of unnecessary and/or Soviet inherited legislative nonsense cannot come too soon.  Which is more important, toppling statues of Lenin or toppling Soviet and nonsensical legislature to which we are all supposed to conform?

Thereafter there are probably two tests above all others relating to any law/proposed law.  The first and most obvious is whether the law advances justice for all.  If yes, OK – if not then it fails to advance justice and should not be adopted.

The next question is whether any new law/proposed law that would advance justice for all, would adversely effect the most basic and fundamental of human rights in doing so.  If yes it fails – if not then OK, bring it to the statute book.

Until any new law meets the “necessity” requirement, and passes the above two, admittedly but deliberately broad tests, then it is not fit for statute.  The aim is rule of law – it is not rule by law.  For rule of law to succeed, society must deem any law both necessary and fair or it will be ignored to the point of being effectively unenforceable when broken on a grand scale repeatedly.

As President Poroshenko acknowledged on the record that he was signing into law a decidedly poorly crafted law, rather than returning it to the Rada with a few suggestions, or vetoing it, then he has to shoulder his share of the blame for the “Lustration Law” being awful.  He also cannot claim anything other than an intricate knowledge of the law having clearly stated it was in effect poor but better than nothing.

The president however, must also be mindful of both his constitutional obligations and his constitutional limitations.  The Ukrainian constitution is clear about the responsibilities of the president vis a vis the Cabinet of Ministers and parliament.  Every effort should be made to keep those defining lines as clear as possible.  President Poroshenko should not be encouraged, nor be allowed, to cross the constitutional lines or wantonly break any laws of the land.  That is particularly inglorious when he signed those law of the land into being.

All of which brings us to this tweet of a few days ago:

Having signed a law on lustration, the president has now appointed a recently lustrated individual to the office of Chief of Investigative Department of the SBU – This despite the ban on holding public office for those lustrated being clearly defined within the “lustration law” that he signed despite his reservations.

Mr Ostafiychuck was subjected to lustration, failing the lustration tests having been unable to account for just how he and his family came to own a lot of property and have several million in unexplained income from a Ukrainian functionary’s salary.  Thus failing the lustration test at the hands of the Public Lustration Committee, he was duly removed from office and subsequently banned from holding public office for many years to come – or not it now appears.

Aggravating matters even more, Mr Ostafiychuck should, and did, undergo a “lustration check” prior to being appointed – this check not being the responsibility of the Public Lustration Committe but that of the prosecutors office.  Seemingly the prosecutors office are not that concerned about just how Mr Ostafiychuck and family came to have so much property and money that he cannot account for.

In short, appointing Mr Ostafiychuck is nothing short of a stunning and brazen disregard for a law that the president himself brought onto the statute books of Ukraine.  Justice is deliberately blind.  It is not meant to have one eye open for political expediency.

justice

It is entirely irrelevant whether Mr Ostafiychuck is the best individual for the SBU post to which he has now been presidentially appointed.  He may very well be (though that is doubtful).  The law states he cannot hold that office.  Thus he should not hold that office and the president, if he is to lead by example, has now to make the moral decision to quash that appointment – even if it undermines his ever more obvious power vertical.

It is sad enough to watch, in particular, the Prime Minister shoehorn in equally nefarious/corrupt acquaintances back into governmental positions, and also to continue to watch meritocracy sacrificed on the alter of party quotas for positions of power, without the president so openly and brazenly casting aside the rule of law – and a law he signed into statute.

The country must purify itself and it must be carried out under clear procedure regulated by the law. – President Poroshenko

Seeing is believing.

The root cause of almost every ill in Ukraine is the absence of rule of law.

It won’t be long before the external and influential supporters of Ukraine begin seriously looking for alternative leaders to promote within the public realm should both President and Prime Minister continue to flagrantly ignore the laws they both bring into being.

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