war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

Unforeseeable Immorality

Halya Coynash
There is surely something wrong when public officials can seek PR through suggesting the need for censorship and the Commission for Public Morality can seriously propose amendments to the law in this area making it even more muddled, subjective and totally unforeseeable

«I’m a model of tolerance, I just can’t stand perverts”. Who or what they can’t stand may vary, but I imagine we’ve all heard such statements. To some extent they’re even natural - we all feel we know what’s good or bad, how people should behave, but for some reason others don’t understand. If we don’t move too far beyond our familiar circles, the assumptions can remain more or less intact. But just try explaining to a foreigner some concept that’s “clear without words” like “offensive”, “vulgar” or “society’s moral criteria”, and it will prove not so simple. For that matter in communicating with Ukrainians you can also run up against unfortunate incomprehension of the “obvious”. 

So can we impose our collection of moral truths on other people in the country (and endeavour to “enlighten” the world)? Democratic countries value pluralism of views, cultural and ethnic traditions, religious beliefs, and cannot, by definition, push “the one and only correct worldview”. That’s the theory, of course, and there are plenty of collisions, however legislation is based on maximum tolerance and respect for diversity.

Those same principles are enshrined in the Ukrainian Constitution so it is absolutely unfathomable how, under the leadership of professor of law and former National Deputy, Vasyl Kostytsky, amendments are being proposed to the Law on the Protection of Public Morality which have very little in common with the fundamental principles of a law-based democracy. I would stress though that in my view the problem is not only in the amendments. Although some of the provisions of the law itself, as well as measures by the National Expert Commission on the Protection of Public Morality [the Commission] are difficult to take seriously, there is precious little humour in the situation which has emerged.

Over recent months the new Head of the Commission has demonstrated superhuman activity informing how the State wants to protect public morals and expanding the activity of the Commission.  Various high-profile measures, for example, against the network, received considerable media coverage. In interviews, Mr Kostytsky has spoken of changes to a number of laws linked with public morality and plans to “strengthen the juridical base of the Commission”. One might have expected a surge of interest in the results of such energetic efforts by the Commission’s lawyers. Perhaps the descent into farce of equally enthusiastic activity by the Commission has dulled the vigilance of those who normally follow movement in this area.

Why make amendments to legislation? We hope that laws are changed in order to remove ambiguity, ensure that consequences of non-enforcement are entirely foreseeable, and to bring them into line with the Constitution and international standards. Unfortunately in the given case none of this would seem to be the case.

According to Mr Kostytsky the range of terms has been expanded, with the appearance of new and definition of some existing terms in the law

In terms of hate crimes, in is unclear why only two terms are defined, and the definition of xenophobia seems excessively narrow (“hatred, animosity or fear of foreigners”). The definition preferred by the Commission for anti-Semitism is positively strange: (“a form of national and religious intolerance expressed through animosity towards Semites (a group of peoples with common roots that include modern Arabs, Jews, Ethiopians and others”). This so broadens the concept that it is difficult to know what you could do with it.

Not that it’s at all clear whether they are planning to do anything to counter demonstrations of primitive prejudice. One can welcome the fairly comprehensive list of types of ethnic, racial and religious enmity however beyond stating that they’re prohibited, it effectively says nothing. You can quibble over the entirely new term “Ukrainophobia” (prohibiting “hostility, animosity or other negative elements in ones attitude to Ukrainians as a nation, their culture, traditions, language, or to Ukraine as an autonomous State with its own independent domestic and foreign policy, to its national symbols, as well as to citizens of Ukraine”). You probably don’t need to complain too hard given the total unenforceability of this ban.

The same lack of any applicability can be noted with regard to a huge number of terms. We are given, for example, a definition of “ignorance”, this being the “absence of knowledge”, however what precisely is prohibited, that is, how one should understand “propagating ignorance” is anyone’s guess. There is still no definition at all for the highly controversial term “blasphemy”, which is absolutely incredible in the light of certain high-profile scandals, for example, over the cartoon on Muhammad in a Danish publication, or the fatwa declared against the British writer Salmon Rushdie.

It would seem that attempts to “strengthen the juridical base of the Commission” basically get nowhere. This is all the more disturbing in those areas where the Commission already has experience and a somewhat questionable claim to fame. Pornography, for example, is still described as “vulgar-naturalistic, cynical, indecent fixation on sexual acts, special demonstration of genitals for the sake of it, anti-ethical scenes of sexual intercourse, sexual perversions, depictions which do not meet society’s moral criteria”. Whose criteria are we talking about?  It is worrying that the lawyers clearly understood that the term “moral criteria” didn’t, legally speaking, say a lot, yet, despite all the protests and scandals, managed only to come up with the extra word “society”. The distinction drawn between “erotic” and “pornographic” remains as unclear and comical as ever.

I would nonetheless repeat that it is difficult to laugh. After all the amendments are not to a speech by some nice grandfather figure, but the new version of a law. And a law must be clear and foreseeable, and not some kind of muddle of subjective concepts which each new Head of the Commission can interpret as he sees fit - or expedient.

This fog is extremely convenient for those who want to decide at their own discretion when to apply the law and when to look the other way.

This is one of the reasons why I believe it unwise to see the law and activities of the Commission as a joke, however there are others. We need to part with the Soviet habit of treating laws as empty words which the authorities will apply or ignore as the whim takes them. This leads to even further degradation of those in power and encourages corruption.

There have been increasingly more calls to ban or fight various forms of expression which supposedly damage public morality and even place national security in jeopardy. The Acting Head of the SBU [Security Service], V. Nalyvaichenko, recently stated that there should be “a law which imposes liability, either criminal or administrative, as punishment for those actions, even by the highest public figures, which prevent the President carrying out his functions, insult him as an institution of power, or restrict him in those actions or the decrees which he issues”. Mr Nalyvaichenko erroneously claimed that there is such “strict liability” in the USA. One can see this as the latest move in the rivalry between the President and Prime Minister. One undoubtedly can, however I would suggest trying to imagine similar statements from the leadership of security services in other democratic countries.

Not much easier, incidentally, to imagine a State body issuing a joint statement with the All-Ukrainian Council of Churches and Religious Organizations which speaks of “our categorical rejection of the pseudo-values impoed upon us and other children, like “free love”, legalization of debauchery, sexual perversion, narcotics, cultivation of avarice, intolerance, ignorance, anti-Semitism, xenophobia, lack of respect for national and religious places of significance” I will confine myself to just one reason why the head of a state commision should have asked the honourable representatives of religious organizations to issue their statement without his participation – it is clearly set out in Article 35 of Ukraine’s Constitution regarding freedom of conscience and the separation of Church and State..

Whether the high-ranking public officials are really so poorly informed about the experience of other countries, or they are relying on their audience’s lack of knowledge, I leave to the reader to decide.  Politicians who have been waxing eloquent of late over fighting disrespect for national dignity, for national symbols, prefer not to go into details. Ukraine can undoubtedly choose its own path (or, more likely, the same path Russia seems to be taking), yet would it not be better to explain to the public that the majority of democratic countries have resolved this difficult issue quite differently? One can refer to the judgment of the US Supreme Court which confirmed the right under the First Amendment to the Constitution to burn the state flag as a sign of protest.

Not to mention the extraordinary phrase constantly repeated about “participation in drawing up international agreements on issues of protection of public morality”. Please understand me correctly: I would in no way question the importance of Ukraine taking part in drawing up international agreements. However I would seriously question whether they can name even one such agreement.

They may, of course, say that they are talking about conventions on fighting xenophobia or child pornography, since these are also prohibited in the law on public morality. I suspect that we are seeing a deliberate blurring of absolutely separate things – unequivocal crimes demanding severe measures, such as the use of children in pornographic films, and what some consider a sin, others acceptable behaviour.

When it’s not clear what precisely falls under the ban, then all of this fog makes it possible to use the law extremely selectively, against homosexuals, for example. It is also deeply frustrating to see empty words being bandied about where real measures are needed. Perhaps it’s convenient for some officials, as was the case recently, to keep the public bemusedly trying to understand whether we were seeing unacceptable censorship, or measures against child pornography. It would be good if they could explain how exactly such manoeuvres help to protect children at risk.

If you read the draft law, there can be no doubt that the plan is to spread this fog over all channels of communication, including the Internet. It is to be hoped that someone has the brain or commonsense to expunge this arrant nonsense before it even reaches parliament. While they’re at it they would be well-advised to deal with the clearly inflated ambitions regarding the role and powers of the Head of the Commission.

It is thus not yet in any way definite that the authorities are seriously planning to bring in censorship, nor that they would succeed. I would very much like to finish on that positive note, but unfortunately cannot. There are, firstly, different forms of censorship. If the Cabinet of Ministers’ plan to reach “public agreements with the heads of media outlets on the protection of morals in Ukraine’s information realm” is carried out, then what this can be called except censorship I have no idea.  And even without this, when the threat hangs over a media outlet that its licence could be removed one does not necessarily have to resort to vulgar introduction of direct censorship.

There is another no less significant “but”. In the last few days the BBC experienced another scandal when the renowned psychotherapist Dorothy Rowe publicly accused the Service of doctoring the text of statements she made regarding the role of religion in our lives. The BBC immediately apologized, offering her an opportunity to fully express her views. Put more bluntly, they were caught practising something that looked very much like censorship, and they had to try to prove as quickly and convincingly as possible that it was all a misunderstanding or aberration.

While in Ukraine the Head of the National Expert Commission on Protection of Public Morality, Deputy Prime Ministers I. Vasyunyk and M. Tomenko, as well as the Acting Head of the SBU, have all in one way or another spoken of a need to protect the psychological health of the public, i.e. to introduce some form of censorship, and people brush it aside, calling it “PR”. Not nice, of course, to tell them where to go, but it certainly seems time to teach them that PR should improve ones reputation, not arouse general condemnation.  I suspect we could all do with some lessons on what kind of actions and words must be treated with “zero tolerance”.

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