What do the adopted amendments actually entail?
Recent amendments to Ukraine’s Anti-corruption Law sparked a fierce public conflict between its critics and supporters. Both sides relied on politicized interpretations of the changes, ignoring the letter of law. The debate has been dishonest and has misled the public, various stakeholders, and even foreign governments supportive of Ukraine. This has undermined Ukraine’s international image and is counterproductive to the country’s reform interests.
The war of interpretations
Since Ukraine’s parliament passed amendments to the Law on Prevention of Corruption on March 23, 2017, extending the list of subjects covered by the law to include a new category of “natural persons”, a heated debate on the law’s interpretations devolved into a public war between its supporters and opponents. Critics of the law allege that it is an ugly act of revenge on anti-corruption civil society activists by the government as part of a larger campaign to thwart their reform efforts. Supporters claim that civil activists are sometimes as corrupt as the government officials, as they lobby interests of their (oligarch or political) sponsors, and that activists preach standards they do not themselves meet.
Unfortunately, the discussion has failed to produce a clear understanding of what the adopted amendments actually entail. Both harsh criticism and passionate defence of the amendments have often relied on a politicized reading of the letter of the law. What is largely absent from the debate is a much needed sober legal analysis of the law. Even the National Agency on Corruption Prevention came short of providing any clear indications or explanations about how it understands the law. As a result, emotive statements, loaded with speculative bits and pieces of legal opinion, set the stage for (mis)perceptions and (mis)understandings of the law.
Perhaps out of genuine fear that anti-corruption efforts will be stifled, (or, as some cynics suggest, as a means of pursuing other political agendas), criticism of the law strayed from an honest debate about the new legal changes. Critics have often gone overboard with wild interpretations, sometimes making claims about the law which are absolutely untrue, even under the most unfavourable of interpretations.
The unsupported criticism has severely damaged Ukraine’s reputation at a time when the country is most vulnerable. The battle moved beyond Ukraine’s borders to involve international organizations, foreign government officials, and institutions. This affected financial programs of support from Western donors, and resulted in strong words of condemnation from several of Ukraine’s friends and allies. The English media space saw a predominantly unbalanced and severe criticism of the law, alleging that it “exceeds” anything even ousted President Yanukovych ever enacted and that it is in fact, a “Putin law” befitting undemocratic Russia.
Such damaging consequences could have been avoided if the Rada had consulted and involved all stakeholders in drafting the law, and crucially, if criticism of the law had stayed true to the legal text, and not promoted emotionally charged interpretations having little to do with the law, generating panic and hysteria.
It is indisputable that the newly amended anti-corruption law should have been drafted more responsibly to avoid confusion and panic. In theory, the legal text may be construed as overly broad in scope by those with malicious intent. The adoption of this amendment was untimely and damaging to essential trust in Ukraine’s post-Maidan government. The government should not have rushed to impose highly onerous e-declarations on civil activists without involving all stakeholders in drafting the law and should have done so only after having first earned society’s trust. Worse still, the government and other proponents of the law promoted the changes by discrediting civil society activists which the reformers perceived as a public smear campaign.
On the other hand, criticism has been carried away by unrestrained speculations about the government’s motives, often dismissing the letter of the law as absolutely irrelevant. What this conjecture ignores is that while its judiciary is indeed in dire need of reform, Ukraine is not a country of kangaroo courts. Nevertheless, critics have relied on suppositious motives to arrive at an interpretation of the law which catches virtually anyone who opposes corruption and their taxi driver.
The law should be criticized on its merits, not on conjecture. The debate should be honest to preserve trust on all sides of the corruption barricade, and so the law may be fixed in such a way that works for all stakeholders involved.
Dispelling speculations about the law
Interpretations of controversial provisions of the amended law will benefit from an understanding of principles of statutory interpretation to achieve clarity and consistency of the statute’s application. As a starting point, the law must be read according to accepted conventions of statutory interpretation. The interpretation should not be superficial, nor should it misconstrue the law to be contrary to its declared purpose or Ukraine’s Constitution.
Unfortunately, many proposed interpretations of the law sit outside statutory construction and interpretation. Commentators often violate standard principles of interpretation, such as the Doctrine of Absurdity, which holds that commonsense interpretations should be preferred in order to avoid absurd legal conclusions. Every provision of the law must be interpreted in a way that produces a reasonable outcome.
This issue with interpretation is amply manifest in arguments proposing that “sandwich eaters” and “water suppliers” are covered as subjects under the new law. A well-known anti-corruption NGO argued that “research once” or writing “two articles” qualifies as “systematic” anti-corruption activity. Despite its obvious absurdity (only natural persons are covered by the e-declaration requirement), a number of commentators speculate about the amended law forcing NGO’s, media outlets, and businesses to file e-declarations. Such interpretations are simply not sound, and no stretch of the imagination allows for such conclusions. The best reliable indicator of legislative intention is the meaning of the legislative text. There is no need to come up with imaginary problems based on irrational fears.
“All anti-corruption protesters”?
Many interpretations also rely on conclusions drawn from selective parts of the text taken out of the law’s broader context, violating another tenet of statutory interpretation: provisions in a law cannot be read in isolation of the whole. It is well accepted that when drafting a law, a legislator expects that the law’s context will not be ignored by its interpreters. It is also crucial that provisions of a law are interpreted within the meaning of how they are used in the statute which is being analyzed.
For example, the scaremongering insinuations that attendees of a “meeting held by patients due to the lack of medicines because of corruption” might be covered by the rules of financial control ignores other qualifying criteria which apply, and as a result, arrive at a conclusion completely unsupportable by the law. Participants of an anti-corruption rally can hardly be said to be implementing the anti-corruption policy within the meaning of the law, nor do they qualify for the obvious criteria of management required by paragraph 3 of Art.3.1 (5). The evident intention of parliament by adopting the anti-corruption law was not to regulate protests, but to establish principles of anti-corruption policies in Ukraine. It stands to reason that protests don’t make anti-corruption policy, only the state makes policy.
“All activists must disclose their assets”?
The argument that “all activists must disclose their assets” requires a reminder of the first rule of statutory interpretation: the language of the text of the law is the first step in any inquiry into its meaning. This claim is simply unsupportable as no evidence of such a rule can be found in the text of the law.
“Third party vendors”?
Speculations about “third party vendors” make very little sense when one analyzes the provision of paragraph 2 of Art. 3.1 (5) in its totality, and takes into account the criteria for works and services – implementation of anti-corruption policy. No theoretical “office suppliers” or “taxi drivers” can be assumed to provide systematic services to fight corruption – a clear criteria under the law. To argue the contrary is beyond absurd.
The existence of problems of interpretation and application of law is inherent in any legal system. Legal rules always struggle to balance between providing certainty and some degree of generality so they may adapt to ever-changing society. Critics should not pretend that this (or any) law can provide absolute accuracy.
Opponents of the amendments often appeal to the principles of legality and legal certainty to argue the law’s “unconstitutional” nature because of the legal text’s vagueness. Legal certainty is, indeed, a central requirement for the rule of law as it protects citizens against risks created by ambiguities of the law. General concerns about Ukraine’s parliament’s legislative drafting are valid – the European Court of Human Rights (ECHR) has criticized other Ukrainian legislation for failing to meet the standard of legal certainty. (It should be noted that such criticism is reserved not only for Ukraine, and has been directed at the legislation of other countries as well.)
However, it is impossible to justify an unconstitutional interpretation of the law over a perfectly valid interpretation consistent with constitutional principles. This is precisely what critics of the law often do. According to the principle sometimes referred to as the Canon of Constitutional Avoidance, if a statute is susceptible to more than one reasonable construction, an interpretation should be chosen that avoids raising constitutional problems. Concerns about the amended law’s ambiguity arise only from the interpretation which undermines its Constitutional legality and runs contrary to the purpose of the Law on Prevention of Corruption. Critics concluded the law is unconstitutional after interpreting the law in such a way that produces an unconstitutional result rather than interpreting it so it is consistent with Ukraine’s Constitution. What has been ignored is that when one applies an interpretation consistent with the context of the said law, as well as the Constitution, the amended provisions read rather clearly.
The claim that the amended law covers “any civil society activists”, implying that the principle of legal certainty is violated, demonstrates that critics ignore specific relevant provisions, as well as the context of the Law on Prevention of Corruption. Such claims ignore the criteria set by Art.3.1 (5), and the general purpose of the law. By analyzing the definition of “corruption” as defined in Art.1 of the Law on Prevention of Corruption, we can easily arrive at the intended scope of the law. The law strives to curb abuse of office (office powers), or opportunities related to it, for illegitimate private gain, or a gain by a (related) third party, by persons enlisted in Art.3.1 (which includes civil society activists, as defined by Art.3.1 (5)). In other words, civil society activists must be entrusted with powers (within the decision-making process) in order to fall under the law. The telling title of Art. 45 of the Law on Prevention of Corruption – “Filing of declarations by persons authorized to exercise functions of the state or the local self-government” – which makes references to natural persons described in Art. 3.1 (5), serves as another good reminder of the context and purpose of expanding the scope of the law to civil society activists.
Making sense of the amended law
The reasonable interpretation of the most controversial Art. 3.1 (5) (which cannot be dismissed until it faces scrutiny by the court) is that it provides a list of criteria which must be met by natural persons in order to fall under the law. It is not sufficient to meet just one criterion, but all of the listed criteria. This interpretation is based on the language of the legal text, as well as the context of the law.
The absence of numbering in Art. 3.1 (5) compared to Art. 3.1 (1) or (2), for example, where numbering is provided to paragraphs (subsections) cannot just be ignored simply because one decides to do so. Principles of interpretation tell us that each word or element of syntax in the statute is meaningful and useful. An interpretation that would render them redundant or meaningless should be rejected. This is important to take into consideration because both Articles 3.1 (5) and Art. 3.1 (1) provide lists, yet the prime difference between them is the presence of subsection numbering in Art. 3.1 (1): (a), (b), (c) … and the lack thereof in Art. 3.1 (5). Another indication that such reading of the legislative text is relevant can be found in the Art. 45.1 which points to subsection numbering in Art. 3.1 (2), but makes reference to Art. 3.1 (5) as one whole category.
We can safely assume that the legislator’s use of numbering in Art. 3.1 (1) denotes a list of categories, each of which falls under the class of subjects of “persons, authorized to perform functions of the state or local self government”. The absence of numbering in Art. 3.1 (5) is likely meant to denote a list of criteria applicable to a specific class of subjects: natural persons. This line of reasoning is shared by experts at the Centre of Policy and Legal Reform.
By interpreting Art. 3.1 (5) as a list of criteria applicable to natural persons, we achieve a result which limits the scope of the law to the clearly defined classes of subjects and is consistent with the purpose of the Law on Prevention of Corruption. If the paragraphs of Art. 3.1 (5) are interpreted as a list of separate categories, the law’s application becomes overbroad which can hardly be construed as reasonable within the declared purpose of the law. This would raise the issue of its constitutional legality before national courts, and perhaps even the European Court of Human Rights (ECHR).
The outcome of interpreting Art. 3.1 (5) as a list of criteria applicable to natural persons is a rather well structured set of requirements for natural persons to fall under the Art. 3.1 (5). In brief, these include:
- Beneficiary of financial aid. Financial aid must meet the criteria of qualifying as Technical aid or other development aid, and the purpose of the aid is to prevent or counter corruption.
- Engagement in activities implementing anti-corruption policies. The activities must meet the criteria of being of a systematic nature throughout the year, and pursue the goal of implementing anti-corruption policies.
- Management position at the NGO implementing anti-corruption policies.
If we apply this above set of criteria to a situation of a “media news agency” (commonly used to argue the overbroad application of the law), we’d arrive at the following scenario: if a media news agency is incorporated as a non-profit NGO, then only their management would be captured by the law, and only when they received funds from technical aid programs, and only if the activities of the NGO implement anti-corruption policy as follows from the law.
If interpreted in this way, Art. 3.1 (5) would save all of us the trouble of absurd or mischievous consequences that could thwart the purpose of the anti-corruption law. The law will be applied then only to situations when civil activists act in a capacity similar to that of officials. This interpretation also clears any doubts about the constitutional legality of that clause.
However, if the government decides to interpret Art. 3.1 (5) as a list of separate categories of natural persons as the opponents of the law fear, principles of statutory interpretation will provide them with legal ammunition to fight the government’s interpretation in the courts to limit the application of the law to reasonable reach.
Fight for truth using truth
Закон потребує доопрацювання і роз’яснення через можливі суперечливі наслідки ряду положень, зокрема суперечливого абзацу 3 частини 3 ст.45 антикорупційного закону,
The law needs fine-tuning and clarification because of the debatable outcomes of some provisions, for example the controversial Art. 45.3 (3). Unfortunately, this matter falls beyond the scope of this publication. Nevertheless, the letter of the law simply does not substantiate many positions argued by its critics. When fighting for truth, for accountability, for justice, transparency, and good government, the fight must not be dishonest. When fighting for truth, one must fight with truth.
All this said concerns of civil society must be addressed before the government implements the law. A public war over interpretations of the law, whether on the streets in protest, or in the courts, will further force a wedge between the government and civil society. To foster trust, Ukraine’s parliament should make the necessary changes to the law to remove potential ambiguities and doubts about its application so civil activists who fear an over-broad interpretation of the legislation by law enforcement agencies will feel less afraid. Only when united by a common goal of a more transparent Ukraine, governed by the rule of law, not by the rule of men, can all stakeholders hope for true change that will make Ukraine’s institutions resilient to corruption.