Ukraine - Values and Law Belong to Conceptually Different Worlds
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Legal imperatives and penalties, while essential, are limited in their efficacy. Fighting corruption depends upon the resources of both mind and spirit. A new culture is necessary to replace endemic corruption. Education is an indispensable tool.
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Ukraine - Values and Law Belong to Conceptually Different Worlds
- 1. Solving corruption by law alone will not succeed. Current legal reforms have been described as piling up new laws on a massive post-soviet mess. The slow pace of legal reforms demands sustained effort and a culture of integrity. Under the best of conditions, the effect of law is very weak to prevent corruption, and must be supported by ethical conviction. In the current context of Ukraine, emphasis on the legal issues in the Parliament is not enough. Civil society, young professionals, schools, and families will need to actively promote Ukrainian values and reject the culture of corruption.
- 2. Values and Law Belong to Conceptually Different Worlds
- 3. Fighting Corruption in Ukraine Гарі Реуше voxukraine.org voxukraine.org voxukraine.org voxukraine.org Індекс Моніторингу Реформ
- 4. New Laws will not solve corruption • Legal imperatives and penalties, while essential, are limited in their efficacy • Corrupt behaviour is literally legal in Ukraine 15
- 5. Six Strategies to Fight Corruption, Augusto Lopez-Claros (World Bank) 1. Paying civil servants well 2. Creating transparency and openness in government spending 3. Cutting red tape 4. Replacing regressive and distorting subsidies with targeted cash transfers 5. Establishing international conventions (cross border dimension) 6. Deploying smart technology (internet, public procurement, etc)
- 7. How would you evaluate the costs of corruption to you and your family?
- 8. In a self-perpetuating cycle, reinforced by years of unfulfilled promises, the general population does not trust that government proclamations of combating corruption are sincere. Not believing change is possible limits the possibility for change.
- 9. fighting corruption depends upon the resources of both mind and spirit virtues of honesty, duty and loyalty are cultivated by the language of the heart and the voice of conscience 10
- 10. Focusing only on legal reforms is insufficient to overcome a culture of corruption A wider, societal effort is required to create a new culture. A new culture is necessary to replace endemic corruption that many believe to be inherited from the Soviet Union and its aftermath. A new culture will express a love for Ukraine as a separate national entity— different from its Soviet past.
- 11. How is it possible to build moral capacity? What strategies will encourage positive social actors who choose to lead lives of service and demonstrate strong moral principles? 5
- 12. Education is an indispensable tool. 4
- 13. « »Путешествие в страну Добродетелей
- 15. Терпеливость Вежливость Терпимость Вера в силу молитвы Уважение Верность Уверенность Верность слову Умение прощать Гибкость Умение радоваться Дисциплинированность Умеренность Доброта Целеустремленность Доверие Честность Дружелюбие Честь Единство с миром Чистоплотность Заботливость Чуткость Любовь Щедрость Милосердие Энтузиазм Миролюбие Мужество Надежность Нежность Ответственность Отрешенность Послушание Правдивость 52
- 16. It needs to be a collaborative effort including religious communities, NGOs, and public institutions= It will not be easy, nor fast. The worse choice is to do nothing.
Notes de l'éditeur
- Thank you for inviting me to speak. I am speaking in Russian, because my Ukrainian is too weak. I would much prefer to speak in English, my native language. On the other hand, both Russian and Ukrainian are widely spoken language in Ukraine. More important today is the question of English. In my University, I have told the faculty that I will lecture to Ukrainian students only in English and that both professors and students are late and too slow in their development of English. 90% of Dutch speak English and by the way, now many languages are official in the Netherlands? =3 (Dutch, Frisian (co-official in Friesland), Papiamento).
- lecture based on article published in Vox Ukraine plus additional materials I invite you to visit the web site and review the article In general I recommend for you to read voxukraine.org. It is hard to get accurate, fact based information in Ukraine. VoxUkraine is an independent and non partisan analytical platform founded and managed by a group of highly experienced and accomplished economists and lawyers based in Ukraine and abroad. VoxUkraine aims at supporting economic reforms in the country through promoting research-based policy analysis and independent assessment of economic developments
- 1- Legal imperatives and penalties, while essential, are limited in their efficacy. Everyone seems to be waiting for action by the Verkhovna Rada, General Prosecutor’s Office, Judicial Reform. These are extremely important but not enough. Who here has read the “White Paper” from the US-Ukrainian Business Council? This is lawyers saying, essentially, that the legal system itself is corrupt and new laws don’t solve anything. I recommend this entire paper to be published in the newspapers, and studied in schools, clubs, and religious gatherings. http://www.usubc.org/files/White_Paper_Nov_18_15_UKR.pdf https://youtu.be/f_RxqiRCPB0 Introduction…Irina Paliashvili The legal community has always been active in the reforms process in Ukraine, but it has significantly intensified its efforts within past two years. There are many ongoing pro bono projects on legal reforms under way, mostly focused on specific sectors, or issues. The law firms involved in this project, which are members of USUBC, decided to focus on an overall strategic vision for legal and governance reform in the business and economic sector. The initial result of this work was the first edition of the White Paper on LEGAL REFORM: STRATEGIC PRIORITIES, released a year ago2, followed by the first USUBC-KSE conference held on 15 October 2014 at the Kyiv School of Economics (KSE). Recognizing the crucial importance for Ukraine of fundamental and systematic legal and governance reform, the USUBC Legal Committee decided to make the White Paper an ongoing project by preparing this second edition, and also by transforming our endeavor into a multidisciplinary project involving economists and political scientists. When the second edition of the White Paper was drafted, we invited prominent legal and non-legal experts to become our Commentators. Following several months of this collective effort, we are pleased to release the second edition of the White Paper on LEGAL AND GOVERNANCE REFORM IN UKRAINE: STRATEGIC PRIORITIES /Business and Economic Sector/4 – jointly developed by thirteen leading law firms with the participation of five Commentators, and presented on 30 October 2015 at the second USUBC-KSE Conference5. The first edition of the White Paper was released a year ago, before the new Verkhovna Rada and the new Government came into place, but our main conclusion then and now remains the same: Ukraine’s current post-Soviet oligarchic and kleptocratic system needs to be entirely dismantled and replaced by a brand new, modern, fair, civilized and service-based legal and governance system. This mission requires a systematic and strategic approach, which we continue to promote in the second edition of the White Paper. At this time, we have analyzed the achievements and failures of the new Rada and the new Government, and have shared our advice on the course of reforms for 21 sectors of the legal and governance system. We are pleased that some of our recommendations, especially in the area of judicial reform, are currently being considered. Overall, it is disappointing that after one year of having been in office, the Rada and the Government have not succeeded in dismantling the current system, let alone replacing it with the new one. We have observed various sporadic attempts and efforts, some of them progressive and effective, but none of them amounting to the dismantling of the old system and radically reforming its fundamental pillars: legislation, governance structure, public administration, institutions, judiciary, law enforcement and others. The Rada did produce numerous new laws and amendments, but this was done within the framework of the old system, and resulted in making our legislation even more complicated, contradictory and confusing. Even the language of the new legislation has not changed – the new laws are still drafted using the same archaic, often incomprehensible, legalistic language. The Rada is measuring its success by how many new laws it adopted, which is an entirely wrong criterion. At his lecture at KSE on 29 May 2015, the architect of Polish reforms, Leszek Balcerowicz, called this "the more legislation the better” approach "a socialist way". What is needed, he said, is not many laws, but good laws; good enforcement of bad laws is bad " Existing Ukrainian legislation is a massive, post-Soviet mess, which incorporates numerous special interests and corrupt schemes accumulated over 20 years. It is worsened by ongoing manipulations with the Constitution, swinging the country back and forth from Presidential-Parliamentarian to Parliamentarian-Presidential system, yet always preserving intact the insane duality of power (the worst possible solution, as it was defined by Ivan Miklos, a piling up new laws on top of this mess will not miraculously turn it into a new system, but this will continue to prevent Ukraine from becoming a true "rule of law” country. Rule of law means, among other things, strict enforcement of the existing laws, but if the entire body of current outdated and often absurd legislation gets enforced, the country will be paralyzed. This is why the current system cannot function without selective enforcement, which gives the vast bureaucratic class, including law enforcement and the judiciary, enormous discretionary power over the ordinary citizens and businesses and feeds systematic corruption. No anticorruption measures can succeed if they are undertaken within this system, which itself is a Petri dish for corruption. Corruption, as a consequence, cannot be fought in isolation from its basis. The only effective tool to fight it is to eliminate its breeding ground, to throw away the Petri dish. Until this happens, any anticorruption measures will be ineffective and will turn into a camouflage for more corruption. There is a common sense solution to this ongoing crisis: It is therefore no surprise that the current legal and governance system feeds corruption and corruption feeds it back, locking Ukraine into a vicious cycle, which no number of new laws and anticorruption agencies can break, and in which no meaningful rule of law can be installed. This situation also breeds cynicism by the public, as summarized in the anecdote: The Ukrainian people want two things: (1) to get rid of corruption in the country; and (2) to be able to evade any law for as small a bribe as possible. Evidently, before demanding rule of law and eliminating corruption, we need to change the system since the current one is beyond repair – in response to any attempt to improve it, the system simply mutates and adjusts, breeding a new class of corrupt public servants. Ukraine can borrow the most modern, simple, uncorrupt and well-tested legal and governance system from the most successful countries in our neighbouring region, and install the best components from each. As an overall model, we can use the Estonian system because it is 100% EU- compatible, is oriented at freedom of entrepreneurship, but also at social and environment protection, has no corruption component, and perfectly fits into modern IT solutions. The tax system can be borrowed from Slovakia. The anticorruption, law enforcement and customs components can be borrowed from the Georgian experience, especially given that the first steps with creating the new patrol police according to the Georgian model and with the help of Georgian experts proved to be quite successful. Then Ukraine will need to place a five-year moratorium on changing any laws (most of corrupt schemes are installed through never-ending legislative amendments), which would ensure stability and trust in the new system in the society. The experts, who designed and implemented the best reforms in the countries of the region (Estonia, Slovakia, Poland, etc.) and who are fluent in EU requirements, should train the new cadre of Ukrainian civil servants and judges, and carry out the selection process (all previous ones must leave, but apart from those who were lustrated, should be allowed to participate in the new selection process). Georgian experts should help to reform the law enforcement, prosecutors’ office (prokuratura) and customs service, and be given a full mandate to eliminate corruption. Ukrainian society and business are ready for this: they have been suffocated by the current system for a long time. They have nothing to lose and a lot to gain if a new, transparent and simple legal system, modeled after the least corrupt and most successful countries, is introduced in Ukraine. A modern, globalized and free-market Ukraine will no longer need a separate law for every step of the way, with a vast bureaucracy to selectively enforce it (in the civilised world there is no need for a separate Law "On Grapes and Grape Wine”, “On Milk and Dairy Products). The current legislation, "On Libraries and Librarian Activities or other hand, is so massive and inconsistent that compliance often is just not possible, but there stand on guard the law enforcement, the tax authorities and the judiciary, which continues to blackmail the society and extort bribes because they are an integral structural part of the current system. At present, when a real reform is needed, the Government often claims to be helpless. Why? Because we need a new law to do this. However, every time the Government wishes to introduce new restrictions and hurdles, it goes ahead and does it without the need for a new law and sometimes in direct contradiction with existing laws. Similar situation is at the Rada: if a special interest needs a new law or an amendment, it gets adopted in record time, but if a new bill is needed in the interest of general public, it goes through many weeks and months of agony, before it finally gets passed in a neutralised version. Under the current dual governance system, nobody takes responsibility, but it is always a legal technicality that both prevents a branch of power from making a progressive effort, and also keeps corrupt officials or judges in their job. There are many examples when legal technicalities are successfully used to stop a progressive effort: thus during the selection process for new key officials, somehow the candidates, who are best qualified, but independent, are disqualified because of legal technicalities. The society no longer accepts the we need a new law and legal technicalities excuses. The inability of the current system to cope with modern challenges forces the public and businesses to resort to various parallel structures – all kinds of ombudsmen, or even to so-called garbage bin lustration (when the frustrated public throws most notorious politicians into garbage bins) – these measures, although useful during the transition period, ultimately only have a cosmetic effect on the current system, and in the long run they will help it to survive. Even the current deregulation will not work because no meaningful deregulation is possible at the level of secondary legislation (regulations by the ministries), when overregulation continues at the level of primary legislation (laws adopted by the Rada), and when the same unreformed public administration makes sure this vicious circle continues. At present, cancellation of one regulation by a ministry is followed by adoption of the new law by the Rada, which requires yet another regulation. Ukraine book by because need a clean break from its Soviet past. It is not by chance, however, that a new Anders Åslund is entitled: Ukraine: What Went Wrong and How to Fix It – Bohdan Vitvitsky, who served before fixing the problem, it needs to be acknowledged first, which our politics class refuses to do. One of our White Paper Commentators, as a US Federal Prosecutor and a Resident Legal Advisor at the U.S. Embassy in Ukraine, stated in his interview to Alexander J. Motyl: “which few in Ukraine seem to realize, is the systemic deformities in the entire legal system going back to Soviet times... Since a well-functioning legal system is necessary for a country’s normal political and economic development, a successful anticorruption drive...one thing that needs to be addressed, and real reforms of the legal system need to be attempted in tandem We need a breakthrough - installation of a civilized legal and governance system just in two or three years will push Ukraine from the Stone Age into the 21st century, it will liberate and restart the economy and will result in significant domestic and foreign investment. Can it be done? It absolutely can. Other countries in the region, under similar circumstances, including the war, have done it. Ukraine’s current leadership, instead of finding ridiculous excuses every time (Georgia is too small, Poland is too big, Estonia and other Baltic countries had spent less time under Soviet occupation, etc.) must expresses a decisive political will and move ahead with these radical changes. Historically it was even done in this land. Prince Vladimir, who ruled Kievan Rus in X-XI centuries, came to understanding that the Pagan system was outdated and was slowing the country’s progress compared to more advanced neighbors who practiced mainstream religions. He sent envoys to study different religions and laws, ultimately deciding on Christianity and Christian Law. History can be the judge on whether it was the right choice, but definitely at that time this was a major breakthrough for Kievan Rus. So we do have a historic precedent, when one of the most revered leaders of Kievan Rus acknowledged that the current system was outdated, looked abroad for the new system, studied and comparedwhat would work best, and then radically and successfully replaced the old system with the new one. That happened 1000 years before the information age – today Ukraine can do this too!
- In a self-perpetuating cycle, reinforced by years of unfulfilled promises, the general population does not trust that government proclamations of combating corruption are sincere. Due to this cynicism, many older Ukrainians adopt a fatalistic perspective regarding the potential for positive change. This is very much part of the problem. If you don’t believe you can succeed, you probably will not. And if you don’t do anything There are times for big politics, when the whole country discusses fundamental political issues regarding its future. However, Ukraine has already chosen its strategic development path. I believe that the Revolution of Dignity was the point of no return for the Ukrainian people. People started to believe in their own strength and capacity to change the system for simple values fundamental to leading lives of dignity – respect for the individual and freedom. Now we have to start down the difficult path from simple aspirations to real change and results that will bring us pro-European, pro-Ukrainian reforms in Ukraine. Today a serious political crisis is blocking our path. A few weeks ago President Petro Poroshenko and Prime Minister Arseniy Yatsenyuk asked that I begin a dialogue with them to present my plan to swiftly pull the country out of this crisis. Over the past weeks there have been a lot of rumors and speculation, so I decided to share my thoughts about this situation. The time has come in Ukraine when the economy has to be depoliticized, and we need to concentrate and unite the best talents and resources for solving the unprecedented challenges that the country faces. Ukraine’s government has to now focus on two key things: restoring the trust of citizens and growing the Ukrainian economy. To restore trust and grow the economy the government can’t take one or two steps forward, it has to take a giant leap ahead. I am convinced that the only way to address the challenges we are facing in this political situation is to install a technocratic government – in other words, a team of “no-one’s” people, those who have no political past, who aren’t subservient to any of the oligarchs or politicians’ “friends”, those who have no political ambition for the future. I stand ready to assemble such a team, one that is ready to work on behalf of the entire country, all of its citizens, and not separate political or financial groups. For me, a technocratic government is one that is established on five fundamental principles: Members of the government have to be uniquely committed to serving the Ukrainian people; not themselves, not their parties, nor special interests. The main criteria for working in the government – an untarnished reputation; Members of the government have to possess zero tolerance of corruption and zero tolerance of political interference in the work of the government; Members of the government shouldn’t be concerned with the next elections or their own political careers. Their only goal should be the growth of Ukraine. Populism will be their worst enemy; They all have to believe that Ukraine can only be a success through democratic and economic freedom, particularly via the implementation of the Ukraine-EU Association Agreement and the IMF Program; Members of the government have to be accomplished crisis managers with experience in successfully reforming and managing their organizations. For these individuals it is their personal reputation that is proof of their honesty before the Ukrainian people whom they are ready to serve. It is precisely their personal reputation that is the best guarantee of the responsibility they bear before Ukraine’s citizens. For a technocratic government to work, it must have the backing of at least 226 votes in parliament in order to fully implement the Ukraine-European Union association agreement and International Monetary Fund program, or a mini-coalition agreement to guarantee the introduction of all reforms enshrined in these international commitments. The same difficult, but successful path to economic reform to create dignified lives for their citizens, has already been taken by our East and Central European colleagues. This is the same path we have to take in order to avoid substituting genuine reforms with another round of meaningless discussion. The more successful we’ll be now, the greater trust we’ll have from the people and support from our international partners, without whom we cannot carry out deep structural reform. Today the world looks at Ukraine with a certain amount of distrust, doubting our capacity to fight corruption and to build the foundation for a dignified future for millions of Ukrainians. Every day of honest government is a chance to prove that our national interests are more important than political pressure and special interests. It is the chance to launch the restoration of people’s trust in their government. This is our common effort. Every citizen has the right to a responsible government, honest courts, the opportunity for personal development, and to grow their business in the absence of any undue influence from state authorities. At the same time, each of us has our own personal responsibility, regardless of the war, to build the foundation for a strong and healthy economy for Ukraine. Only by cooperating with civil society and responsible, independent media can we attain irreversible change which will allow us to build a dignified future for all our citizens. We cannot allow anything to take us off course in this regard. The government has to concentrate on introducing a maximum number of reforms to modernize the Ukrainian economy. Ukrainians sacrificed a great deal for the future of their country. That is why we have to save the country now. That is why right now, without hesitation, we have to restore our citizens’ trust and safeguard economic growth. I never aspired to high office and have no plans or desire to build a political career in the future. My only aspiration is to introduce reforms in Ukraine in order to safeguard the country’s economic growth, enhance the development of its civil society, and improve every Ukrainian’s well-being. Natalie Jaresko is the finance minister of Ukraine.
- "Clearly, the set of capacities necessary for building up the social, economic, and moral fabric of society depends upon the resources of both mind and spirit. The civilising virtues of honesty, duty and loyalty so central to human progress are cultivated by the language of the heart and the voice of conscience. Legal imperatives and penalties, while essential, are limited in their efficacy. To draw upon the spiritual roots of motivation that lie at the heart of human identity and purpose is to tap the one impulse that can ensure genuine social transformation. From the Baha'i perspective, then, the emergence of public institutions that engender public trust and that are devoid of corruption is intimately bound up with a process of moral and spiritual development. As Bahá'u'lláh confirms: "So long as one's nature yieldeth unto evil passions, crime and transgression will prevail.” Does anybody in this room disagree with what I am saying? Have we done enough in Ukraine to make it clear to our leaders and the world, that we will accept nothing else and will not give up.
- Focusing only on legal reforms is insufficient to overcome a culture of corruption. I hope I have already made this point. The laws themselves leave the door open to corruption. It’s not Gary saying this, but a large group of Ukrainian lawyers including friends of mine. A wider, societal effort is required to create a new culture. If you are not part of the solution, you are part of the problem. A new culture is necessary to replace endemic corruption that many believe to be inherited from the Soviet Union and its aftermath. You have to replace corruption with something that is better, and stronger. A new culture will express a love for Ukraine as a separate national entity— different from its Soviet past. Ukraine culture in my opinion has one foot in the past, and one foot in the future.
- How is it possible to build moral capacity? strategies to encourage positive social actors who choose to lead lives of service and demonstrating strong moral principles? SOCIAL ACTIVISM means action and learning. Collaborative activities are important. Is there any group, left, right or centre, who has a different set of values? Groups communicate, interact and learn from each other. Learning is only useful in the context of social experience Individuals construct knowledge through interaction with their environment"
- Education is an indispensable tool. Education is growth rather than an end in itself. Education occurs through its connection with life. Rather than participation through curriculum Learning should be hands-on experience based,rather than abstract. (move to example in next 2 slides)
- It needs to be a collaborative effort including religious communities, NGOs, and public institutions I personally work with these organisations and more.