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A Rada week that will be one legislative step backwards?

October 3, 2016

This week the Verhovna Rada will see the following draft laws presented for voting:

Draft Law 3665 – A draft law on mediation creating legitimate mediation institutions in an effort to reduce pressure upon the judicial system.

Draft Law 2297 – A draft law relating to the creation of a far more favourable tax environment for charity donations made via telecom company operating systems (donations via text/SMS etc).

Draft Law 3491D – Relates to framework education, outlining obligations and accountability throughout the administrative structures.

Draft Law 4549 – Which seeks to meet Ukrainian obligations under EU Directive 2012/27/EU within the energy market.

Draft Law 3603 – Proposes to align Ukrainian water management practices with the EU Water Framework Directive.

Draft Law 3259 – Aimed at the State and its strategic environmental assessment mechanisms.

Draft Law 2009a -D – Would bring Ukraine within the requirements of Directives 2003/4/EC and 2011/92/EU (not withstanding the several other conventions to which it is a party).

None of the draft laws are perfect.  Some are good, and some not so good.  Most, indeed probably all will require amendment – as there are few Ukrainian laws that are written so well that they subsequently escape amendment almost before the ink is dry on any presidential signature signing them into law.

Long has the blog bemoaned the standard of crafting and drafting of legislation in Ukraine – and that will undoubtedly continue far into the future.

This brings about a number of suggested amendments also before the Verkhovna Rada in the coming week that simply fall into the counterproductive and/or woeful categories.

Draft Law 4370-1 – A law that seeks to amend the procedure for appointing the heads of local state administrations.  Not only is it clearly unconstitutional, it presents the holder of the office of President with the opportunity if not usurp power, then to grasp power tightly at the very root of local democracy.

Draft Laws 5097 and 5177 – “The Lutsenko Drafts” seek to remove the exclusivity of NABU in investigating corruption among the elite as described in a previous entry.  This will simply not sit well with the national constituency, nor the “external friends” of Ukraine that have spent a lot of political and diplomatic energy, not to mention financial assistance and training for NABU.

Draft Laws 1592 and 5079 – The much anticipated attempts to weaken the e-declaration legislation by removing criminal responsibility for submitting deliberately false information within their declarations, and also to curtail access to e-declarations.

To be clear the e-declaration law is not perfect.  It does unquestionably require amendment.

However the removal of criminal responsibility for false declarations is not where fault lies within the current legal text.  To be sure without criminal responsibility few would expect the feckless and in many cases distinctly criminal within the political class to pay much heed to the accurate completion of their e-declaration.

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The issue of public access to e-declarations is perhaps a far more sensitive matter.

There are 7 nations that have committed to (but not yet delivered) public registries very similar to that of the Ukrainian e-declaration.

31 nations are considering making their registers/declarations public.

Only 2 countries have actually created a public register of declarations – The UK was the first and Ukraine is now the second.  For once Ukraine is leading the way in the transparency arena.

To be a public figure within a democratic legislature or senior civil servant within Ukrainian State institutions demands an advanced level transparency – particularly in a nation like Ukraine where corruption is deeply ingrained within this class of people.

The desire of Ukrainian society to also see included in those e-declarations the assets of parents and children of public figures and/or senior public servants is entirely understandable when they have historically been consistently used to hide the assets of public figures.  This is currently a legal requirement prior to any legislative amendments.

It is justifiable, and it is indeed currently legitimate, for prescribed investigative anti-corruption bodies to have access to all such information on an e-declaration including that of family members who hold no public office, but is it proportionate in respect to individual privacy of non-public figures for the entire nation to have access via a public register?  Is it justifiable for anybody to gain access to information relating to non-public family members simply because the information is stored on Government servers via any Ukrainian equivalent of a Freedom of Information Act?

The fundamental question is whether or not the same freedom of information access to that of public figures should equate to the same level of access relating to non-public family members?  It is where matters may get a little messy and may perhaps darken the door of the ECfHR one day in the future unless due consideration is given.

Emotion dictates that full and absolute transparency is demanded from public figures who have stolen from the Ukrainian people (and therefore this blog) directly and indirectly daily, and for decades.  Morality demands that their nefarious gains should not be allowed to be hidden via their family members, or easily in any other way – perhaps for many, regardless of any rights to privacy.  Proportionality however, specifically with regard to family members, may consider unfettered access to all such information in a public register worthy deliberation should the data demands of the e-declaration remain unchanged.

Sooner or later, this issue will be raised.  In the meantime however, few in Ukraine will have any sympathy for the privacy rights of those involved, one way or another, in raping, pillaging and hording the proceeds of the country over the past 25 years (and more).

Nevertheless, the proposed Draft Laws 1592 and 5079 are far from being the remedies for the issues within the e-declaration legislation.

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