This
issue has festered for years and has been a source of corruption and
confusion in the marketplace. Bringing transparency and consistency
to the property market will be a real boon to the protection of
property rights.
More needs to be done, however, and
quickly, as the legal system has suffered from profound neglect and
abuse for many years. Below are nine practical, high profile and
easy-to-implement “quick wins” involving institutional reforms
and access to justice that will protect and promote the human rights
and property rights of citizens and businesses by strengthening
personal freedom, fighting corruption, and encouraging investment.
Each of these reform initiatives should be judged against three
guiding democratic governance principles: do they promote
transparency, accountability and the effective delivery of services
to the public.
A. Institutional/structural reforms:
Quick Win 1. Abolish deputy
immunity. Once again, the Verkhovna Rada’s newly minted
deputies have fallen silent on their electoral promises to abolish
the blanket immunity deputies enjoy from prosecution. Abolition is an
important matter of principle – maintaining this affront to the
constitutional principle of equality before the law only undermines
the government’s credibility, perpetuates the culture of impunity
that permeates Ukraine’s institutions and breeds corruption.
A law should be put before the parliament to
limit deputy immunity to the classic parliamentary privilege that
anything said by a deputy in the chamber of the parliament is free
from prosecution. This initiative will be seen by the public as
having stood up for fairness, justice and equality before the law.
Quick Win 2. Repeal the Economic Code of Ukraine. Adopted as a sop to Ukraine’s post-Soviet
state-owned enterprises and Soviet-era legal theorists, the
provisions of Ukraine’s Economic Code are ideologically
incompatible and in conflict with Ukraine’s excellent modern Civil
Code. No other civilized country that I know of has two systems of
regulating civil law relationships – statist vs market. If the
state enters into contractual relations in the marketplace, then it
should be subject to the same rules as all other actors. The
inconsistencies between the codes has been a major source of
corruption in the commercial courts, allowing judges to exploit the
conflicts to allow corporate raiding and unlawful transfer of
ownership of businesses, thereby undermining confidence and trust in
Ukraine’s justice system.
Quick Win 3. Eliminate the Higher
Commercial Court and investigate the judges. This initiative
follows on from the previous recommendation. It is part of the wider
strategic objective of creating an independent judiciary as a
necessary element of credibly re-establishing the rule of law in
Ukraine. Either a law or a presidential decree can be passed to
re-organize the commercial court system by eliminating the Higher
Commercial Court and transferring it’s jurisdiction to the Supreme
Court (where, in my humble view, it belongs anyway), thereby
lustrating about 80 judges.
An investigation should then be
immediately launched into the source of funds of at least five
reportedly millionaire judges of the Higher Commercial Court. I’m sure we can find 80
honest and capable jurists in the country (even foreigners, as is now
popular) to replace those under investigation.
This initiative will improve the
transparency, accountability and quality of service of the judicial
system, and will be a major step in embedding the rule of law in the
market.
Quick Win 4. Pass the Administrative
Procedure Code. The Ministry of Justice has been working on with
outside experts for many years. This “constitution for civil
servants” is crucial to ensuring transparency and accountability in
public administration by imposing the principle of legality in how
civil servants take decisions affecting citizens rights. Especially
important, it eliminates arbitrariness by imposing the principle of
legality to the exercise of administrative discretion. The ministry
can explain to the people that it has in this way ensured that civil
servants will now act as public servants and not as public masters.
B. Open up the system of justice and
improve legal services
Quick Win 5. E-governance for
services. Transparency should be the hallmark of the Ministry of
Justice. The minister should perform a complete review of the
services performed by the ministry to the public and put as many of
them on the internet as possible. In addition to the immoveable
property registry, the registration of businesses, non-governmental
organizations, births, deaths, marriages, the granting of licences,
etc. can all be facilitated electronically. Commoditizing services by
eliminating bureaucratic involvement will reduce corruption, enhance
transparency and improve the efficiency and quality of services.
Quick Win 6. Ease registration of
non-government and charitable organizations. The Viktor Yanukovych-era law
complicating the registration of NGOs and charitable organizations
should be immediately replaced with a simple law or administrative
act encouraging and facilitating the volunteer sector. Given the
explosion of volunteerism in the country, this simple initiative will
instantly enhance the mnister’s and the government’s popularity,
while making government more accountable to civil society and
encouraging public-private partnerships.
Quick Win 7. Improve notarial
services. Most of the public’s experience with the legal system
takes place with notaries. This is the central nervous system of the
legal system. Unfortunately, the encounter is often less than
satisfactory because of corruption, long wait times, poor service,
and expensive notarial stationary. Let’s make the notary system
more service-oriented by merging state and private notaries into a
single private system (the poor can receive targeted assistance to
off-set the cost) and encourage competition by abolishing notarial
districts. The number of notaries can be controlled by raising
standards to ensure that only highly qualified and honest notaries
are allowed to practice.
Quick Win 8. Individual
constitutional challenges. Allow individuals to appeal violations
of their constitutional rights directly to the superior courts all
the way to the Constitutional Court. Currently, such references are
at the discretion of the presiding lower court judge or prosecutor –
a wholly unsatisfactory arrangement (especially in criminal cases)
where the discretion of the court can in effect decide the
substantive fate of the applicant. Due process, a fundamental
component of the rule of law, demands it.
Quick Win 9. Communicate with and
listen to the public. Enlist the people to help with reforms –
the minister should explain the reforms and ask the people what they
think. Simple feedback initiatives, such as performing local and
nation-wide service delivery surveys on these and other issues will
go a long way to re-establishing the government’s credibility with
its citizens.
Daniel Bilak is managing partner for CMS Cameron McKenna and former adviser to the justice minister of Ukraine (1995-1997, 2005-2006).
