October 14 can be called, without exaggeration, a historic day for Ukraine. After a long period of resistance and tight public pressure, the MPs finally voted a complete package of anticorruption bills into law. The most important of them is Law No. 5085 “On the National Anticorruption Bureau of Ukraine” (in the first reading, it was called “On a System of Specially Authorized Entities to Counteract Corruption”). Coupled with the adopted Law No. 5114 “On Making Changes to Some Legislative Acts of Ukraine about Identifying the End Beneficiaries of Legal Entities and Public Figures” (which calls for revealing the real owners of legal entities), it provides for a wide range of instruments to break down the post-Soviet corruption-based model of management in the highest echelons of power. The Anticorruption Bureau will only deal with corruption among top officials.
A total of 278 MPs voted for the Anticorruption Bureau to be established. Interestingly, the former Regionnaires Serhii Kliuiev and Serhii Kivalov were also among the fighters for purity in governmental circles. By contrast, the BYuT’s Serhii Vlasenko, the Party of Regions’ Hanna Herman, Borys Kolesnikov, Vadym Novynsky, and Anatolii Blyzniuk abstained from voting.
According to Viktor Chumak, chair of parliament’s Organized Crime and Corruption Control Committee, as the MPs were preparing for a second reading of the Anticorruption Bureau bill, they discussed 176 and took into account 52 amendments. He says the changes “are not critical.”
But public activists are of a different opinion. The original concept envisaged that the bureau would be staffed by the new people who had not been involved in the old corruption schemes. Vitalii Shabunin, founder of the nonprofit organization Corruption Counteraction Center, says there was a hope that such people would be found. But the overall concept of corruption control changed a little after the BYuT’s Pashynsky and Pavlenko had introduced their amendments. Shabunin told The Day about the most crucial changes in the documents.
The first change is about formation of the Anticorruption Bureau. “Our version of the draft law forbade people who had worked in the law-enforcement bodies for more than five past years to apply to the bureau’s anticorruption units. They have withdrawn this provision. So, the new law allows recruiting old-time prosecution, security service, and police investigators to this body. In other words, they are the people who failed to curb corruption. Therefore, it is very important who will head the Anticorruption Bureau, for it is up to the chairman to decide whether or not this kind of people will be part of his team,” Shabunin explains.
The second change is that the clause on a mandatory lie detector check for the whole Anticorruption Bureau’s staff, including its chairman, has been deleted.
The third one is that the Anticorruption Bureau will have limited access to banking secrets and a limited right to withdraw documents. “We wanted the bureau to have the right to do so at the request of its chairperson, but the amendments say ‘exclusively in coordination with a judicial investigator.’ This is the problem – the notorious Pechersk Court will thus be able to overrule the bureau’s decisions,” Shabunin adds.
Besides, there are also some criticisms about the law on opening the register of real estate and owners of legal entities. “If someone wishes to obey the law formally, they can do so. For example, the adopted laws call for drawing up a public register of real estate and the end beneficiaries of legal entities. But the main point here is how fast this will be done. This can be done within three months via the Internet or within a year by way of a query to some official body,” he says.
So, in Shabunin’s view, the amendments make it difficult to pass anticorruption laws, but, on the whole, they do not break the concept of anticorruption struggle, for the bureau’s performance will depend to a large extent on who will head it.
In what way will the Anticorruption Bureau chairperson be elected? A commission is formed, which consists of nine people – three from the president, the cabinet, and parliament in each case. This commission selects three candidates for the bureau chairmanship and submits candidatures to the president for approval. The latter chooses one of the three and proposes that the Verkhovna Rada confirm him or her in office. Should the MPs refuse to support the president’s proposal, he chooses another one of the remaining two. If this one is also rejected, the president puts forward the third one. Should parliament fail to support none of the three candidates, a new competition will be announced.
In Shabunin’s words, the latest wording of the draft law has also undergone changes, as far as the appointment of chairperson is concerned. For example, the candidate must have a higher juridical education and must have worked for 10 years in the profession and 5 years in executive positions. In other words, it is in fact a person partly “nurtured” by a corrupt system. “So, there is a risk that an old-time functionary may assume the office of one in charge of corruption control?” we ask him. “No, but it will be difficult for the young and new people to make their way through,” he answers. There is number of protective devices that will prevent Yanukovych’s followers from becoming the Anticorruption Bureau chairperson. First of all, Shabunin continues, the future chairperson will have to go through lustration, as all the other bureau staff will. Besides, the chairperson is to report to parliament twice a year, while a civic council, which will be attached to the bureau, will also submit an alternative report. Shabunin believes that this council should include public activists and journalists. Under the law, the Verkhovna Rada can pass a vote of no confidence in the bureau’s head. This step requires the collection of 150 signatures.
The law enters into force within three months after being signed by the president. This period should be enough to elect the bureau chairperson, create the organizational structure, and hire the staff. The law says that the bureau staff’s salary should be set “in line with budgetary resources.”
Will this entity be effective in fighting corruption or will it just turn into another bronze monument on the grave of the contemporary, not Soviet, era of Ukraine?
Shabunin is optimistic. “Approving the package means creating a real opportunity to begin to effectively and professionally fight against corruption,” the Corruption Counteraction Center founder says. “The required laws have been passed. It is only the question of implementation. When the Anticorruption Bureau chairperson is elected, it will be clear whether the topmost leadership has a political will to combat corruption or is just pretending to do so. We will see the candidates delegated to the ‘commission of nine.’ So voting for the Anticorruption Bureau is only the first step to the victory. It must be followed by implementation.”
“Taking into account the nature of our politicians and the staff of our governmental bodies formed in the years of independence, the Anticorruption Bureau will only be effective if it is run by invited foreigners. As we did a thousand years ago, we should again invite the ‘Varangians’ to manage the anticorruption process,” says Andrii Novak, Ph.D. in economics, chair of the Committee of Ukrainian Economists. In his words, the attempt of the president and the MPs to change the rules of the game stands a good chance to be thwarted unless one important thing is taken into account. “The point is not in powers. They are sufficient. All the law-enforcement bodies (police, the prosecution, the security service, specialized financial audit units) have some anticorruption functions, but there are practically no results. Small-time offenders are being caught for statistics’ sake, but when it comes to really great damage to the state, there is no progress. So, main problem now is observation of the letter of the law in these bodies. And this is a human factor, for the leadership of our law-enforcement bodies themselves are heavily corrupt,” he says. Therefore, while opening and handling corruption cases, the Anticorruption Bureau will sooner or later deal with prosecution offices or courts – the most corrupt entities in Ukraine. “For this reason, establishing the Anticorruption Bureau without carrying out judicial reform amounts to playing for effect,” Novak says in conclusion, emphasizing that it is a job for next-convocation MPs.
Ichak Adizes, one of the world’s leading experts in business and governmental effectiveness, stressed in an interview with The Day that, when establishing the Anticorruption Bureau, we may provoke the appearance of “another kind of prosecution service.” So, he thinks we should take cautious approach. “The root cause of corruption is in the fact that the current system of licensing and public administration is in a total mess. A great change is now taking place – transition from a planned to a market economy. This change has made ‘holes’ which people use for corruption. Of course, somebody can be put in prison, but this will not radically solve the problem. You must fill in the holes to ward off the temptation to take bribes,” he said.
P.S. As we were going to press, it was reported that the President of Ukraine had signed a decree on the establishment of the National Council for Anticorruption Policies. This will be an advisory body that will be drawing up anticorruption strategy proposal for Poroshenko and making a thorough analysis of the effectiveness of the measures to forestall and counteract corruption. The council will consist of 17 members: nine will represent the public (six representatives of NGOs, who have the experience of drawing up anticorruption proposals, a member of the All-Ukrainian Association of Local Government, and two from the Association of Entrepreneurs), and the rest are members of the Council of Judges, the Cabinet, and parliament. The National Council will have its sessions once in two months.
