Questionable Efforts

When there’s nothing worth praising, you soften the criticism by saying the person tried hard.  This was presumably the motivation behind welcoming “the increase in legislative activity” in the Parliamentary Assembly of the Council of Europe’s October report on Ukraine.

In the wake of the 31 October Local Elections, run according to one piece of “legislative activity”  the words seem grotesque mockery. You can’t deny that the new regime tried hard. Nor that they got the result sought. This seems to finally have penetrated with US and EU observers who have issued the according statements. Obviously diplomatic niceties cannot be entirely ignored. However in a situation where television channels say only nice things about the government, if the EU Representative really must “welcomes the readiness expressed by President Yanukovych to draw lessons from the local elections”, it would seem expedient to ask immediately what lessons and when.

The time has passed for politely nodding our heads when the Deputy Head of the President’s Administration writes “letters in defence of democracy”, while not saying a word when a law is passed which stacks the odds in favour of the ruling party. After all, warnings about inevitable electoral violations and imbalance were voiced by Ukrainian and international experts from the outset.

And what kind of “defence” does Ms Herman have in mind when the President’s Administration is collecting information about the political preferences and “influence” of all figures in leading positions in the regions?  This is manifestly aimed at establishing anything but democratic control over society.

Only scepticism can be felt at the creation on 5 November by the President of a “Commission for the Strengthening of Democracy and Affirmation of the Rule of Law.”  The aim sounds noble, of course, which is presumably what is counted on, as well as he fact that the newly appointed Head, Serhiy Holovaty, is well-known in Strasbourg and Brussels.

European bodies, including the Venice Commission, were also well aware of the work achieved by the body with almost the same name abolished back in April by President Yanukovych. The National Commission for the Strengthening of Democracy and Affirmation of the Rule of Law had received positive assessments for its work on judicial reform.  Yanukovych however decided he could do better alone and first got rid of the Commission, and then signed his changes into law without – as promised – awaiting the Venice Commission’s assessment of the Law on the Judiciary and Status of Judges. The assessment received in October is negative, with most comments applying to the new changes which further weaken judicial independence.

The new regime is just as lavish with assurances about conclusions which will be drawn from the Venice Commission’s assessment.  Only one conclusion seems evident – that Serhiy Holovaty has more chance of hypnotizing European officials with a moving refrain about commitment to democracy. They don’t have to be convinced, after all, as long as the fine words keep flowing.

When the words are used for propaganda purposes and the aim of such “legislative activity” fairly hits one in the eye, the danger of welcoming empty assurances becomes palpable.

Ukraine has obligations before the Council of Europe and these are being flagrantly ignored, both in laws passed and those stalled.

In March the President’s “legislative activity” was confined to the creation of a “National Anti-Corruption Committee” and delaying the entry into force of fundamental anti-corruption legislation. In theory the laws will come into effect from 1 January 2011, but as they say, don’t hold your breath. After all, those same parliamentarians who in July were in such a rush to pass the President’s version of “judicial reform”,  on 2 November rejected a draft law proposing mandatory declaration by high-ranking officials and their families of expenditure, as well as one aimed at clearly defining conflict of interests to prevent officials using their position for their own ends.

The parliamentarians clearly saw these laws as conflicting with their interests, while the Party of the Regions went one step further, with an alternative draft law on access to public information.  Parliament’s failure to adopt the law drawn up by civic organizations and approved by European experts was largely due to lack of support from the Party of the Regions.  This is in such overt breach of the Party’s promises that a new tactic has been adopted. The draft bill tabled by Olena Bondarenko and Volodymyr Landys, is full of fine words, little access and seems aimed at stalling the adoption of any law.

It is absolutely clear how vital a contemporary law on access to public information is for Ukraine. It is a fundamental obligation before Europe, and any diplomatic phrases, if it is stalled again, can only jeopardize still further Ukraine’s democratic development.

Given the uncertain fate of the law on access to public information, as well as hardly unfounded pessimism regarding the regime’s plans to fight corruption, not the opposition, we would be unwise to forget yet another piece of “legislative activity” passed without hesitation by the ruling coalition. Passed seemingly with only noble aims since who would deny the need for personal data protection?

The question is, of course, rhetorical however the specific Law “On Personal Data Protection” was condemned by human rights, media and business groups, including the Association of Ukrainian Banks. Their calls on the President to veto the law were ignored and it is due to come into force on 1 January 2011.

The difficulties experienced by Ukraine’s legislators in providing clear and unequivocal definitions are notorious, yet this law is in a class of its own. Virtually everything which can serve to identify a person is defined as “personal data” and therefore protected by law. It will shortly be illegal to circulate any information, including a person’s surname, without the person’s written consent, unless s/he is a first category public servant. The President seemed unbothered even by the clear warning from the Association of Ukrainian Banks of the dangers posed “for the restoration and development of Ukraine’s economy”.

Perhaps the reader believes that commonsense can be expected to prevail, that you won’t seriously need to obtain written permission to name any other public official, bank client, witness of an accident, etc. No optimism is called for. What will prevail, as is becoming increasingly common in Ukraine, is an absolutely selective application of the law. When “needed”, it will most certainly be dragged out to prosecute a journalist, civic activist or business person.  It is this possibility that places freedom of speech in grave danger.

All this and other examples of legislative activity also jeopardize Ukraine’s economic prosperity.  A government which conceals information about its expenditure and activities; which doctors laws and uses enforcement and regulatory bodies, the courts, etc, to serve its own ends, will not balk at using similar methods against foreign investors.

Ukraine needs investors and western support. These are levers and should be applied – in defence of democracy.