An imitative fight against corruption in a perfunctory democracy

A correlation between Ukraine obtaining a visa-free regime and the so-called “harsh and indisputable requirement of the European Union for introducing electronic declaration of income for public officials” is no more than a myth. The European Union has never put forward such a requirement. Ukraine has willingly undertaken the implementation of obligations under “Action Plan on Visa Liberalization by the EU for Ukraine”. But it contains no provision that goes: “We must introduce electronic declarations for public officials that have to include all their expenses, including a visit to the dentist”. The original of the document states that we must “ensure the efficient functioning of an independent anti-corruption agency”. The EU representatives have but provided a general framework of a corruption problem that needs resolution. The specific content of the anti-corruption legislation was left to the Ukrainian legislators to determine.

However, as a result we have got an odd formation created contrary to the Constitution – a National Agency on Corruption Prevention, which is funded by the State Budget and de facto has the investigative and detective power. In order to facilitate its operation, the legislation has been altered and a notorious “electronic declaration” has been introduced, despite the fact that it violates the basic constitutional rights of citizens pertaining to the content of the declaration and its publication. On December 30, 2015, 48 Members of Parliament forwarded a constitutional submission to the Constitutional Court with respect to this matter, which had been done in a correct legal manner.

The key question is as follows: who managed to interpret “requirements of the European Union” in such a cunning way that allowed them to trick everyone and assure them them that, unless there are the electronic declarations drawn up in a manner cooked-up by “unknown” lawyers and activists, the visa-free regime will face an obstacle.

These cunning business-lawyers have turned Chumak and the MPs and journalists into the frontmen of their incompetent statements, despite the fact that none of them are proficient in constitutional or international law, in order to push through the unconstitutional decisions.

I will provide all the arguments of “professional” activists on the subject at hand in advance:

“betrayal, budget falsification”, “Kremlin’s fifth column; Moscow’s agents and influence that have shattered our European aspirations”; “former “regions” and voters for “laws of January 16” and so on; “he has not put his mother-in-law’s “Zhiguli” and his daughter’s land into the declaration and so on”.

I would like to point out that for two years now the above reasoning has been used by the current pseudo-activists, the so-called ‘fighters’ who are riding the wave of combatting corruption for a fee, basically the degrading elements of political authority, who have profiteered off of enterprises and assets of the old regime as a result of fighting that very regime and turned into its successors in the form of ‘spin doctors’, the corrupt activists on call (who carry out rading, incursion, robbery, intimidation of political opponents, paid articles in paid “independent publications”). In essence, they have become a backbone of an ochlocracy being constructed since February 2014, which has nothing to do with law, the Constitution, European understanding of democracy and human rights, with fight against corruption etc.

I have spoken of this numerously, including the address at the Conciliation Board on November 2, 2015, and the meeting on visa-free regime at Speaker Groysman’s on October 16, 2015. And it was not just me: many other MPs, including the ones from the coalition, have spoken out.

It might be a deliberate sabotage on the part of pro-government coalition and a “perfunctory” fight against corruption on the part of current government.

Whatever the case may be, the EU Delegation to Ukraine has stated: “The Ukrainian leadership has undertaken an obligation that a fully operational National Agency on Corruption Prevention will be working in the first quarter of 2016, and a verification mechanism for assets and possible conflict of interest for public officials will be initiated shortly afterwards”.

This means that the National Agency will have to begin its operation by April 1, 2016. By that time, all five members of the Agency’s management will have to be appointed with recruitment of other staff underway.

This also means that the system of electronic declarations must be initiated at the nearest possible moment, and the Agency must possess means to examine not only these ones, but also the old declarations of public officials…

And irrespective of when the development of the system of electronic declarations is completed, the Ukrainian Government is still obliged to conduct an examination of the already existing paper declarations”, the EU clarification says.

Now I would like to call upon the professional lawyers and the people, Ukrainian citizens, whom I deeply respect, to look into this issue in all its complexity, to examine the legislative acts in a specific field as a complex of acts, and first and foremost – to see the repercussions of the application of current legislation.

To those among you who have and still do genuinely believe in the possibility of a visa-free entry, I would like to clarify that the delay in the introduction of the system of electronic declarations is irrelevant to the time of granting of the visa-free entry into the EU to Ukrainian citizens.

It means that the EU requirements contain the provisions on the operation of the Agency, as opposed to the content of electronic form of declaration and the terms of its introduction, as excited euro-optimists and their spin doctors would like you to believe.

Therefore, it is not the amendment that’s the issue, but the ability of incumbent Government to fight against corruption, organize the work of law endorcement and special agencies in accordance with the Constitution, the laws, and international obligations.

Particularly, the initiation of the National Anti-Corruption Bureau is an obligation of the Ukrainian authority; the Bureau that could work using the existing information medium and the existing declaration form. By the end of 2015, the Ukrainian authority still had not initiated the Bureau, neither had it appointed the Bureau’s staff.
The Prevention of Corruption Act has not yet been amended in conformity with the comments of the Scientific Expert and Legal Department of the Verkhovna Rada (there are 22 pages of comments!). In other words, the Act is incompatible with the Constitution, there is a National Anti-Corruption Bureau established with no respect to the Constitution with a partially appointed staff, members of which were appointed with no regard to Ukrainian legislation.

Regretfully, the incumbent Cabinet of Ministers of Ukraine does not comprehend, nor accept that the Constitution of Ukraine is the backbone of all laws of Ukraine and neglects Article 3 of the Constitution, which lays down that “human rights and freedoms and their guarantees shall define the content and direction of the public policy… The assertion and protection of human rights and freedoms shall be the primary duty of the state”.

They also pay no heed to Article 6, which says that “the bodies of the legislature, the executive and the judiciary shall operate within the limits set up by this Constitution and in conformity with the laws of Ukraine”.

A portion of laws pushed through or lobbied by the Ministry of Justice are frankly ignorant and incompatible with the Constitution and the laws of Ukraine, which was reflected in the conclusions of the Scientific Expert and Legal Department of the Verkhovna Rada. All comments can be accessed at the Verkhovna Rada’s site, if you need clarification for a reasoned discussion.

The Committee’s Conclusion from September 16 2015

The Conclusion of the Main Scientific Expert Department from September 16 2015

The Comment of the Main Legal Department from November 9 2015

The Committee’s Conclusion from September 16 2015

The Conclusion of the Main Scientific Expert Department from September 16 2015

The Comment of the Main Legal Department from November 9 2015

The Committee’s Conclusion from September 16 2015

The Conclusion of the Main Scientific Expert Department from September 14 2015

The Committee’s Conclusion from November 4 2015

The Conclusion of the Main Scientific Expert Department from September 14 2015

The accumulation of these legislative initiatives with no real guarantees for the protection of the constitutional rights of Ukrainian citizens, of the people displaying an opinion different to that of the current power, the absence of genuinely safeguarded freedom of opinion and ideology, the lack of guarantees for the parties, factions, and groups outside of the pro-government coalition, the lack of rights of the opposition threaten the real fight against corruption, as opposed to the imitative and perfunctory one carried out by a selected few “activists” in Ukraine. It creates an illusion of a fight against corruption, which could easily be called a façade.

Hiding behind such declarative “mountains-as-molehills”, those members of the current authority, who had been cutting down the budget, continue on the sly to control the flow of funds, while the education, healthcare, and social budgets suffer cutbacks in order to redirect the funds to the pocket fighters against corruption and to the charter capital of the Ukrainian defense industry, instead of creating production and workplaces.

P.S. For the purpose of educating myself and “declarative fighters against corruption” on the European legal norms, within a week I will have filed a lawsuit against MP Chumak on protection of honor and dignity, and business reputation.

 

Author: Andrii Derkach

Source: Left Bank

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