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E-declaration legislative changes – Ukraine

March 25, 2017

As to be entirely expected when positive changes regarding transparency occur in Ukraine, there is going to be some form of tinkering with such enabling legislation to provide wiggle room for those otherwise unwillingly trapped by it.

So it comes to pass with the statutory e-declarations required for Ukrainian public officials (be they elected, civil service, judicial, or appointed to State Owned Enterprises) and arguably this wiggle room was created without due parliamentary procedural adherence, thus immediately casting a shadow over what emerges as statute (subject to presidential signature).

An apparent procedural disregard for the Verkhovna Rada Committee that put forward some amendments occurred.  Those amendments were hijacked, altered and yet more apparently added and voted through, in violation of Verkhovna Rada protocols.  It is unclear at the time of writing just what was voted into statute vis a vis the amendments proposed by the Verkhovna Rada Committee.  Regardless there appears, prima facie, to be a gross violation of procedure.

It also appears that some slyly inserted loosely worded amendments offer a way out of submitting e-declarations for those currently obliged to do so – specifically for those who have (or will) attained the status of “combatants”, or who enroll in higher military education establishments.

How many corrupt legislators, judges and other public office holders will now enroll in higher military education or engineer their status of “combatant” to avoid obligatory e-declarations of their wealth?

The amendment suggested by the Verkhovna Rada Committee did indeed set out to save those fighting on the front lines from the requirement to complete e-declarations.  Indeed it appears that if this hijacked amendment is not been signed by President Poroshenko within the week, e-declarations will be applicable to many troops due to the current wording of the existing law – which was (rightly) not the intention or spirit of the existing law.

However it is not this newly inserted wiggle room that will possibly be employed for nefarious purposes to avoid e-declarations that has drawn the headlines or ire.

What is contentious is how the amendments will effect civil society and NGOs.

The UK, EU and US were all swift to denounce those civil society related amendments as a step backwards.

Twitter feeds from UK Ambassador Gough – “Changes to law a serious step back. Could limit NGOs capacity, expose them to pressure & affect reform. Needs urgent review“, EU Commissioner Johannes Hahn – “E-declarations should target in public administration – not hamper work of civil society.” and “Changes to the law on e-declarations are a step back, not forward, and should be reconsidered.”, notwithstanding the US Embassy Kyiv making clear:  “E-Declaration for senior public servants is a powerful step in the promotion of reforms in Ukraine. Members of civil society play a vital role in ensuring transparency; to make them a target – a step back.

Ergo there will be fairly significant pressure from international funders upon President Poroshenko not to sign the amendments (whatever they are as they remain far from clear), yet with statutory timelines pressing him to sign the amendment if only to avoid military issues ensnared in the statute.  An option is perhaps to sign it and then send an urgent Bill to the Verkhovna Rada to immediately cancel the amendment, or amend the amendment to something better crafted/drafted (perhaps something similar to the original Verkhovna Rada Committee amendment that was hijacked).

However a cursory look at the origin of additional amendments and the votes that hijacked this VR Committee amendment would suggest the presidential party is a willing conspirator in the hijacking (together with the People’s Front and The Radicals).

Indeed a reader may or may not be inclined to link this latest legislative hijacking to the recent Poroshenko Party-People’s Front shenanigans surrounding the NABU auditor appointment by way of Verkhovna Rada procedural naughtiness and pushing the envelope when it comes to overtly interfering in/influencing corruption initiatives.

Yet further, a reader may ponder how the presidential party is involved in two such machinations inside a month without the knowledge of the Presidential Administration and/or the President himself?  Such optics are not helpful and yet there will be many diplomatic missions that will have those within viewing these events through such a lens.

However, given that the Ukrainian civil society space is undoubtedly infected with pocket NGOs of the corrupt, notwithstanding those of distinctly unfriendly States, and considering that there are certain NGOs that are undoubtedly shaping policy and effectively lobbying government, is there not a reasonable moral case to be made for them to also disclose funding/wealth when preaching transparency (of governance)?

Is it not fairly common for those that would lobby government to be formally declared in a register, annotating those that are foreign funded?  Similarly, are not some in senior NGO positions required to declare their incomes?

Is this then an argument regarding the matter of timeliness and institutional robustness rather than a matter or statutory requirements?

Is it simply that the outspoken governments see the legislative amendments as untimely given full consideration to the unreformed corrupt judiciary and more generally a weak grasp on rule of law, that as a result Ukrainian NGOs and civil society should be allowed to continue working as they are – at least and until the domestic structures and processes are in place and robust enough to protect them from a currently untrustworthy State and State institutions?

That said, there will be some NGOs that will voluntarily disclose their funding just to set a public example to those in government.

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