11.01.2010 | Halya Coynash

Where the State should fear to tread


The situation was a touch too sinister to be comical, although elements of the surreal cannot be denied. In early October 2008, while the world reeled from the financial crisis, the war over South Ossetia and much more, Ukrainian television journalists were invited into parliament to discuss supposedly excessive negativity in the news.  What is worse, they actually went and sat quietly, much as their predecessors had daydreamed through Communist Party pep talks. At that stage few even thought to demur, although this was to change over the next months of extraordinary activity, especially from the State-organized and financed “National Expert Commission for the Protection of Morality” (hereafter the Commission).

With confidence in Ukraine’s political leaders at a record low, and the said leaders apparently oblivious to the threat to the country posed by their permanent and vicious struggle for power, it seems hardly an auspicious time for politicians and civil servants to become so intent on restoring the “moral health” of … the public. This, however, is precisely what we have been hearing for the last year.  The constant claims that it is all in the interests of “national security” are especially disturbing.

The seeds had been sown some time earlier. The Law on the Protection of Public Morality was passed, despite opposition, in 2004, and even without the amendments at present being suggested is a staggering example of everything that a law should not be. No need for obscure legalese: the principle is quite simple: we must be able to foresee which behaviour will incur sanctions. The law fails to provide any clear definitions of what it prohibits and even the distinction drawn between pornographic and erotic material (expanded in Criteria adopted in 2007) is beyond the grasp of most mortals. While the Commission remained largely dormant, the problem did not receive the attention it deserved, and has now become acute. One extraordinary example wais the “expert” opinion from the Commission in April, finding “pornography” in the novel by renowned Ukrainian writer Oles Ulyanenko “The Woman of his dreams”. The passage cited as an example by the Commission is certainly sexually explicit, only so are many works of world literature which have not been banned for many a decade.  The reason given is a classic example of terminology and thinking which have no place in a law, or from the body empowered to enforce it: “The author’s mastery and expressive power with language could encourage base instincts in the reader which gives grounds for finding them pornographic”. It transpires that the definition of pornography is not clear, and it all depends on some vague and undefined “base instincts”.. And this is when a large number of Ukrainians would dispute whether in fact pornography should be prohibited at all.

Before mentioning even foggier areas, it is worth noting a law passed in June which was purported to be on the one type of pornography which is a crime in any form – child pornography. Despite calls from human rights and media organizations, the President signed amendments into law which make possession of any pornography for the purpose of sale or distribution a criminal offence. It is now not only unclear what will be deemed pornography (with one of the criteria being “propaganda of sexual deviations”), but also how the police will decide whether there was intent to sell or circulate. However, most galling is the fact that the law does not achieve its supposed aim. Possession of any child pornography must be a criminal offence, and it is immaterial whether a person planned to sell it or not. This is besides any other considerations in accordance with Ukraine’s international commitments. Parliament chose to ignore the latter and not criminalize all child pornography, while instead introducing yet another inadmissible restriction on people’s freedom. The restriction will probably result in only more scope for arbitrary application or, more likely, blackmail by law enforcement officers, since even if in court you can prove that material found in your possession did not fall under this law, the publicity will for many people be too daunting.

It is not generally known how extraordinarily puritanical the Soviet Union was when it came to any matters pertaining to sex, and we can see that some have problems shaking off this legacy. Soviet aspirations, however, went much deeper, with the State endeavouring to control all aspects of human life.  The resurgence of fundamentally undemocratic efforts to meddle in areas where the State has no role to play has in recent times become frighteningly apparent in Russia. Not only are most television channels and the media effectively Kremlin-controlled, but history textbooks for schools present a seriously distorted view of modern history, especially the Soviet era.  Shudders rippled through the democratic world just months ago when a “history commission” was set up under the President to ostensibly combat “falsification” of history.

Since Ukraine is one of the targets of this and other recent measures to obstruct any readjustment to old Soviet propaganda about the Stalinist regime, the War, etc, it is more than frustrating to find the Ukrainian authorities reverting back to similarly fossilized Soviet thinking. The law on public morality has terms which either in no way fall within any government’s scope of responsibility, such as “propaganda of ignorance”, whatever that may mean, or which require very careful definition, for example, “blasphemy”.. The tomes of unforeseeable and therefore dangerous waffle were recently supplemented by a “Doctrine of Ukraine’s Information Security” which the National Security and Defence Council of Ukraine effectively copied from a similar document produced by their Russian counterparts. . The document is full of terms which European experts have long indicated have no place in a democratic society, such as “information sovereignty”, while “information security” means just about whatever the authorities wish it to mean.

It is probably no accident that the initial noises and measures to impose specific notions about positive news content, morality and protection of Ukraine’s “information sovereignty” were treated almost with humour.  Ukraine is not Russia, and protest or ridicule from civic organizations, the media and members of the public generally in no way muted.  The problem is not only in that other legacy from Soviet times - the authorities’ total lack of interest in public opinion, but also in the deliberate blurring of issues. The talk of protecting national security in all these documents and laws, the constant harping on about Ukraine’s interests and “national security”, “traditional values”, etc are music to the ears of many people who have been brought up on nationalist ideas.  Ukraine is also constantly bombarded by Russian propaganda and brazen untruths about the country’s history and present situation. The war between Russia and Georgia exacerbated the feeling for many Ukrainians of being at threat in an “information war”.  Such a sense of vulnerability makes people look to the State for support and not always clearly differentiate between protection and unwarranted intrusion.  The Commission has also been increasingly seeking the support of religious organizations which have considerable influence in a country with a large population of believers.

None of this reflects the views of all Ukrainians, and indeed this is impossible in any democratic country. The task is to ensure democratic mechanisms aimed at respecting all people’s rights and not interfere in areas which must remain the private realm of the individual.  The Ukrainian authorities’ intrusions may seem humorously inept and harmlessly vague in comparison with the increasing grip on society in neighbouring Russia. Harmless, however, they are not, and the lack of clarity and mechanisms for safeguarding the individual from undue interference make the public dangerously dependent on the democratic will of the authorities. We are seeing a worrying lack of such democratic will in Russia and would be well-advised to take warning now.

First published as Do čoho by štát nemal vstupovať  in the Slovakian journal Zahraničná politika (Foreign Policy):

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