(1)
Fair Election Commissions. Ukraine’s
election commissions should be reformed so that they are just and transparent,
to begin with by allowing all significant political parties to fairly
participate (e.g. those receiving three per cent. or more of the vote for the
jurisdiction involved). Fair and honest elections are fundamental for a
democracy. During a transitional period, there might be international
participation from the EU or another suitable international body to help
supervise and audit the conduct of elections. Outside supervision and auditing,
as an initial, temporary step, seems justified, since so many fraudulent
election practices have been used in the past in Ukraine.
(2)
Outside Audits of the Ukrainian Government. The
state budgets, at all levels of Ukrainian government, including the actual use
of funds, need to be audited by outside accounting firms of impeccable
reputation that cannot be influenced by domestic politics. (Initially, in an
effort to enhance confidence in government, the major international accounting
firms might be involved for such audits.) The auditor should be periodically
changed, so that the work of each auditor can be checked by the subsequent
auditor. The adoption of computer based systems for all government activities
(“E-Government”) can simplify this task and make government much more
transparent to avoid corruption.
(3)
Provide for Freedom of Information. All
court rulings and administrative decisions should be published, as well as most
other information on government activities (including as discovered in the
outside audits), as is done under the US Freedom of Information Act. Such
publication of decisions and access to information is also needed to help
citizens prepare complaints to the Maidan Council Ombudsman where abuse is
suspected. With the use of modern E-Government, such information can easily be
tracked and put online.
(4) Convert
the Maidan Council into an Ombudsman.
Institutionalize the Maidan Council that has been created to become an “Ombudsman”
to police the bureaucracy, the courts, the prosecutors, the militia, the
customs authorities, Parliament and the President – no one should be above the
law. An “Ombudsman” is generally defined as a public advocate, having
significant independence, who is responsible for representing the interests of
the public by investigating and addressing complaints of maladministration or
violation of rights (see, e.g., Wikipedia at http://en.wikipedia.org/wiki/Ombudsman).
The term Ombudsman comes from Sweden where the position was highly developed
over the past century, and is now generally used by many countries, although
some countries use other terminology. This position in Ukraine should, in part,
incorporate the role of special prosecutors as used in the US, for example to
respond to the Watergate scandal.
Whatever
the position is called, creating such a special independent investigative and
prosecutorial body independent of the Government to represent the people should
help to provide a better system of “checks and balances” to help ensure proper
government for the long-term future. The current Maidan Council could, in part,
be organized into such an Ombudsman. After the appointment of the existing
Maidan Council to serve an initial term, the appointment of the Ombudsman
thereafter could be based on a national election.
Any
citizen should be able to bring abuses of the legal system to the Ombudsman for
investigation by the Ombudsman’s professional staff. For example, anyone who
suffers from a wrongful decision of a judge or an administrator, where clearly
something improper has occurred, possibly due to improper action by the other
side, should be able to turn to the Ombudsman for justice. The Ombudsman might
also have a useful role to recommend corrections for the many known problems in
the drafting of Ukrainian legislation that facilitate corruption, such as that
caused by the 2008 amendments to the Ukrainian Land Lease Law
that make so many Ukrainian land leases technically invalid and subject
improperly to challenge by corporate raiders.
For
the past three years, as Chairman of the British Ukrainian Chamber of Commerce
(“BUCC”), I have pushed for the creation of such a Ukrainian Ombudsman to
control corruption in the judiciary and administration. Now is the right time
to act on this, so that the Ukrainian Ombudsman can, forever after, control the
corruption that, since the mid-1990s, has become endemic in Ukraine. This would
mean that all judges and bureaucrats will know that their decisions can be reviewed
and they can be forced to justify their actions, failing which the decisions
could be reversed. Such supervision seems appropriate since the higher courts
have not functioned as they should. Where a single gross abuse or a pattern of
abuse is shown, it should be possible for the judge, administrator or other
official to be dismissed.
The creation
of the Ombudsman to fight corruption and official malfeasance is one of the
measures that has made Sweden one of the least corrupt and most transparent
(and economically most successful) countries in the world today. Such an
Ombudsman could help Ukraine make the same transformation, that is so desired
by the Ukrainian people.
(5)
Provide for a Constitutional Right to Recall Officials. In
order to avoid the perception that street protests are necessary to remove a
politician, it should be provided in the Constitution for the right, upon a
petition being made by a certain percentage of the registered voters who can
vote for an official, to require a vote on the removal of the official from
office. This could apply for the President as well as Parliamentary deputies
and other elected officials. Such a right exists in many other countries –
giving citizens a direct right to intervene. The threat of possible recall can
be useful to positively influence officials.
(6)
Parliamentary Deputies Must Not Be Required to Belong to a
Party or to Vote as Instructed by Their Party. Deputies
in the Verkhovna Rada should always have the legal right to belong to any
political party, or to no party at all, and to be able to freely vote as their
conscience guides them, rather than always as the heads of their respective
political parties might dictate.
(7)
Pay Officials in the Government Administration and Judges
Properly. In the past, Ukrainian officials have been paid minor salaries,
that equaled a tiny fraction of the salaries in the private sector, on the
understanding that they could steal enough to make their position worthwhile
for themselves, and also pass a percentage up to higher officials. It has been
conservatively estimated that senior officials in the previous tax
administration stole over USD 2 billion per year.
To
protect the interests of Ukrainians, administrative officials and judges need
to be reasonably paid, by reference to similar top jobs in the private sector
(perhaps not the equivalent for public service, but at least a significant
percentage of such private sector pay). They can then best be held accountable
for their public performance, with zero tolerance for corruption. In view of
the massive amounts of money that these officials manage and the judges
effectively control, this is a practical approach as used in the west to
control corruption, and should save, for spending on public needs, much more
taxpayer money than is spent for such increased salaries.
(8)
Correct the Problems in the Agricultural Land Lease Law Previously
Created to Undermine Farmers and Facilitate Corporate Raiding. There
are a number of problems in the Land Lease Law that were deliberately created
to make land leases subject to invalidation and farms subject to corporate
raiding. For example, as noted above, in 2008 amendments were passed to the
Land Lease Law to require all agricultural land leases to have express
provisions on whether the land lease rights may be contributed to the capital
of a company or may be pledged. These 2008 revisions actually appear to have
been adopted only to permit land leases later to be invalidated, as the
amendments serve no other useful purpose. They permit land leases to be voided
because the current model land lease, adopted in 2004, was never amended to
include these two provisions that were imposed in 2008 as “material terms”, and
a land lease without all material terms may be lawfully voided by a court. Most
land leases in Ukraine continue to be based only on the 2004 model form. In
fact, most state land registrars resist registering land leases that contain
any variations from the 2004 model land lease form.
These
2008 amendments need to be repealed, and their effect should be cancelled, so
that no agricultural land lease can be terminated due to this artificial
problem created to assist corporate raiders. Agriculture is a very important
part of the Ukrainian economy, and a principal basis for Ukraine’s future
economic development, so it is of critical importance that these problems from
the past should now be corrected. In addition, this problem from the cited 2008
amendments threatens most on-shore oil and gas operations, as they also
generally rely on agricultural land leases.
(9) Adopt
a New Constitution. Due to certain
controversies that have arisen over the current status of the Ukrainian
Constitution and other related matters, a new Constitution should be quickly
adopted, in principle based on the 2004
Constitution with the changes outlined above and possibly a few other
revisions, such as to further provide for and streamline the impeachment
process. Ukraine needs certainty in the status of its laws, starting with the
Constitution.
(10)
Reassure Crimea
/ Develop Crimean Agriculture. Finally, in view of
the current political situation, things should be done immediately to reassure
Crimeans that the new Ukrainian Government will properly look after their
interests. For example, Crimeans should be assured that the Government will
finally act to improve the economy in Crimea, which is depressed compared to
most of Ukraine. In particular, it should be proposed that Ukraine, with the
World Bank and the IFC, will rebuild and expand the irrigation canals that have
been silted up, and the water pipes that have been stolen and sold as scrap
metal, including to rebuild with much greater capacity the main canal from the
Dnipro River to Crimea, so that Crimea can become the “California” of Europe,
the Middle East and North Africa, supplying high priced fruit and vegetables as
well as grain. As food supplies become increasingly tight, expected over the next
decade, such agricultural production should become increasingly valuable. This
should provide a needed supplement to Crimea’s income from tourism.
As a
consequence, there should be a much larger tax base for the long term
development of Crimea – as happened in southern California. The water available
from the Dnipro River is effectively unlimited (unlike for California), and it
should tie Crimea to Ukraine. Based on such anticipated expanded agriculture,
the necessary roads and other infrastructure should also be proposed to be
developed to transport production and generally benefit all Crimeans, including
by assisting the further development of tourism.
A
number of major companies are interested in investing massively in irrigation
farming in Crimea. The soil there is better than in California, and there is a
relatively warm micro-climate permitting multiple crops per year using western
agricultural technology, once suitable irrigation is established. Such
development should also reduce unemployment in Crimea, which is currently a
problem, especially away from the resort areas that attract tourists.
These
initial suggestions made above should help fundamentally to change the way
government is conducted in Ukraine and assist to develop Ukraine’s political
and economic potential.
Bate C Toms.
Mr. Toms is chairman of the British Ukrainian Chamber of Commerce, the senior partner of the law firm B C Toms
& Co. (which has offices in London and Kyiv), having studied law at Yale
Law School and Magdalene College, Cambridge. Before law school, Mr. Toms
focused on Soviet Studies, including at the Institute of Political Studies in Paris under Mme Carrère
d’Encausse, France’s leading expert on Russia, Ukraine and the CIS.
This letter is written in Mr. Toms’ personal capacity and not on behalf of the
BUCC; these proposals are currently being presented by Mr. Toms to the BUCC’s
Board for their consideration.
