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Lustration – A slow motion policy car crash?

March 22, 2016

On 5th October 2014, when President Poroshenko signed into law what was clearly a poorly crafted law – despite its rightful intention – an entry was published outlining the fact that such a poorly crafted law was extremely likely to result in something of a policy car crash.

wall

“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.”

and

“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?”

Notwithstanding

“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.”

On 20th November 2014 an entry was published outlining the very Constitutional challenges anticipated almost 2 months prior.

“Indeed, as foreseen, subjecting those learned (and corrupt) individuals to a law that was clearly never more than OK, and far from being good, is subject to legal challenge from th learned (and corrupt) judiciary within their own corrupted court system.  27 of 43 Supreme Court Judges have voted to send the Lustration Law to the Constitutional Court.  Those 27 voting in favour of challenging the Lustration Law (informally) headed by the Head of the Supreme Court, Judge Romaniuk – whom perhaps would struggle to justify his wealth if ever subjected to the Lustration Law, as would many of his colleagues.

Under challenge are Part 1 – Clause 6. Part 2 – Clause 2.  Part 2 – paragraph 13.  Part 3 and Article 3.  Thus whilst not striking down the entire Lustration Law, it would certainly seem to hollow it out somewhat.”

No reader will be surprised that there are, even with the most elastic interpretations of the Constitution and Lustration Law, clearly areas where they are simply unable to “rub along”.  Thus eventually the law, or parts there of, will be judged as unconstitutional.

As also predicted, and duly mentioned in an entry of 14th December 2014, the Venice Commission made its discomfort with the law known.

“The Venice Commission has now commented however.  It is suggesting what amounts to a complete revamping of the law and mechanisms surrounding it – unsurprisingly.

Firstly The Venice Commission recommends that body in charge of lustration should be a specially established independent commission – not the Justice Ministry.  It stresses that people’s right to a fair trial -including the right to a lawyer, equal rights of the parties, and the right to be heard in court – should be observed,  and that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.

Currently the law on lustration fails to contain some provisions dealing with such guarantees of rights.

It also suggests the provisions of the law containing the list of positions subject to lustration should be revised, and that lustration should only apply to those positions that could pose considerable danger to human rights and democracy, and that guilt should be proven in each specific case – it cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.

All of which, again, was entirely predictable – so much so it was predicted at the time.

Legislate in haste – repent, repeal and pay reparations at leisure!”

Timeliness is not necessarily something associated with the Ukrainian legislature unless its vested and varied interests are threatened – and due to the prima facie conflict with the constitution, any threats posed by the poorly written Lustration Law for those at the top of the corrupt and nefarious tree may be seen as temporary pending appeals and ultimately successful (including reappointment and reparation) ECfHR rulings as the law currently stands.

With the Constitutional Court reaching its final (and probably unfavourable) conclusions upon the immediate horizon, notwithstanding several pointed comments from the Venice Commission since its “Opinion” has been roundly ignored (the last barbed comment only a few days ago), only now (21st March 2016) have necessary amendments been submitted to the Verkhovna Rada via Bill 2695 that seek to comply with the Venice Commission official Opinion/recommendations .

The submitted draft proposes to quite significantly alter the composition, independence and powers of any lustration body, clearly identify and reduce those positions (and therefore people) able to be subjected to any lustration process.  (This long after many that would now be excluded from the process should the law be amended, having already been lustrated and who are probably now forming an orderly but very long queue at the ECfHR unless they somehow “settle” domestically.)

It is perhaps fortunate – or more than unsatisfactory depending upon a readers point of view – that the lustration process in Ukraine, since the law was passed, like so many policies has not enjoyed systemic and consistent implementation.  Therefore the damage done – or not done – is far from what it was designed to be.  Repercussions have domestically been, and perhaps at the ECfHR will therefore be, somewhat more limited than they should have been/could be.

It remains to be seen just how snugly draft Bill 2695 will meet the “Opinion” of the Venice Commission, (and by default how many unnecessary ECfHR claims will be prevented in the future), or indeed whether the draft Bill will manage to gather the necessary 226 votes to amend all the laws that will require changing – which include the laws “On the cleansing of power” (Lustration Law), “On the recovery of confidence in the judiciary”, “On prevention of corruption”, “On elections of People’s Deputies of Ukraine”, “On elections of President of Ukraine” and “The Code of Administrative Offences.”

At its most fundamental, the conflicting issue is one of “collective justice” which an aggressive lustration would require to “cleanse en masse” post-soviet endemically corrupted institutions swiftly, verses that of “individual justice” that “Europeans” expect from due process – notwithstanding the constitutional issues.

Perhaps the Ukrainian constituency has now replaced the initial (and rightful) rage that demanded more or less unchecked “collective justice” across the swathes of corrupt practitioners within cancerous State institutions in the aftermath of 2014, to that of stoic and unfaltering determination to deal with the problem in a far more “European” way over the long haul.  As Ukraine has clearly still not got to grips with fundamental requirement of upholding the rule of law in a consistent and equitable manner, and until it does there is no solid foundation for any reform or any legislation that emerges from the Verkhovna Rada be it good, bad or counterproductive, a long haul it is certainly going to be.

The question is whether the “Lustration Law” of October 2014 is a policy car crash that has now truly hit the wall with consequences that should have been foreseen but weren’t, or whether those consequences were foreseen with very clear eyes, and the damage caused in the resulting car crash was deemed entirely acceptable in buying sufficient time to partially cleanse the system and partially placate a then raging society?

Whatever the answer, there remains the need for a policy of institutional and political cleansing that meets the expectations of the domestic constituency (first and foremost) and also external supporters of Ukraine – and the current leadership remains far from achieving that.

Nevertheless, the legacy of “Legislate in haste – repent, amend, repeal and pay reparations at leisure”  appears to require facing very soon indeed.

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