Originally posted here.
October 30, 2015
Kyiv School of Economics
As prepared for delivery
Thank you, Irina, for your kind introduction. I’d like to thank the President of the US-Ukraine Business Council Morgan Williams, and you, Iryna, for the invitation to be here with you today. I’m pleased to be in the company of such distinguished speakers and guests: Bohdan Vitvitsky, Former Federal Prosecutor with the U.S. Department of Justice and my friends and colleagues Andreas von Beckerath, Ambassador of Sweden and Luc Jacobs, Ambassador of Belgium.
What a difference a year makes.
When we gathered here last year, the Kremlin-backed war in the East was in full force. The battle for Donetsk Airport was in its third week. Political leaders were campaigning for parliamentary elections – elections that voted in the most reformist government in Ukraine’s history.
Today, the guns are quieter. We are seeing the first, tentative, positive results from the Minsk process as heavy weapons withdrawal goes forward and the ceasefire holds, more or less. But make no mistake: Ukraine’s two wars go on. The war against a determined aggressor in the East. Against a relentless propaganda machine. And, less visible but arguably even more insidious, on the home front, the war against corruption, the central battlefield in the struggle between Old Ukraine and New Ukraine.
This past Sunday, Ukrainian citizens voted in local elections that showed the resiliency of Ukrainian democracy in the face of difficult economic conditions and Russian aggression in Crimea and Donbas. The estimated turnout of 46% percent was in line with previous local Ukrainian elections, and significantly higher than U.S. local election participation. We urge Ukrainian authorities to hold postponed elections in Mariupol and other locations as soon as possible. We appreciate that President Poroshenko has pressed for them to occur on November 15, alongside the second-round of mayoral elections.
The solid turnout and results show us that the Ukrainian people are firm in their demand for change. Newly-elected leaders must take those demands seriously, and stay firm in their commitment to reforms, including the decentralization of power.
We all know that reform is not a single action. For Ukraine, it is a long process requiring difficult and sometimes unpopular change. To bring to life the Ukrainian people’s demand to choose their own future as a strong, free, successful, European state, both leaders and citizens must act with courage and resolve to overcome the obstacles ahead.
The USUBC’s Legal Committee has done important work in analyzing the structural, procedural, and legal obstacles to reform in several areas in Ukraine, from anti-corruption to taxation, and from public procurement to agribusiness. As a result, several practical solutions have been identified that could strengthen the rule of law and move Ukraine closer to its chosen European future.
It will surprise no one here that many of the USUBC recommendations focus on three areas – judicial reform, anti-corruption, and prosecutorial reform. The United States is providing significant assistance in each of these areas.
We all talk a lot about the importance of rule of law. But we all also know that the most beautifully written laws in the world are worthless if they are not enforced, and applied equally to all citizens. We also know that equal enforcement requires an independent, accountable judiciary that acts with integrity to fight corruption.
Ukrainians today do not believe their judiciary can or will do that. According to a recent poll, only five percent of Ukrainians approve of the job judges are doing. Five percent! For the majority, the courts exist not to defend them, but to protect the financial and political interests of corrupt and powerful special interests. This Soviet legacy, sprinkled liberally with oligarch influence in the 24 years since independence, must be cast off if Ukraine’s judiciary is to act with independence and integrity. If it is to uphold the rule of law, protect human rights and serve the Ukrainian people. If it is to meet the European standards and aspirations that Ukrainians stood on the Maidan two winters ago to defend, and have fought and died for in the nearly two years since.
The United States stands ready to work closely with willing Ukrainian partners. We welcome the robust debate around proposed constitutional amendments to make this happen. It is truly a sign of Ukraine’s healthy democracy and civil society that business leaders, members of the Reanimation Package of Reforms civil society coalition, the Constitutional Commission, the Cabinet of Ministers, judges, parliamentarians and others, have all weighed in on the issue.
How this debate is resolved will ultimately be decided by the Ukrainian people, not in Washington, not in Brussels, and most certainly not in Moscow. To that end, we encourage all Ukrainians – entrepreneurs, business leaders, civil society activists, students, workers – to join the discussion. The shape of Ukraine’s justice system is not just for policymakers and academics. All those who look to the courts to uphold their individual rights, defend the Constitution, and protect the integrity of the rule of law in Ukraine should care deeply about the outcome.
In that regard, I welcome President Poroshenko’s decision to submit both the Constitutional Commission’s and the Reanimation Package of Reforms’ proposals to the Venice Commission for review. I applaud the spirit of cooperation among the stakeholders who engaged with the Venice Commission last week to find a compromise and a joint vision for a way forward on judicial reform. As one civil society representative noted, the process marked a unique moment when Ukrainian “representatives of all stakeholders of the judicial reform stood up together.”
This week, the Venice Commission released its Opinion on the Constitutional Commission’s proposed amendments and also weighed the views of civil society. The Commission found the amendments to be “very positive, well-drafted and deserves to be supported,” adding that “after so many attempts…the time has come to proceed with this long overdue reform in order to finally move towards achieving an independent judiciary.” I urge Ukrainian authorities to hold inclusive discussions around these recommendations and to move forward with constitutional amendments in line with international standards. I am told the relevant working group met this week, and we may see some draft bills before the Rada next week.
However, while that process continues, Ukraine can also push forward in three areas to strengthen judicial independence, accountability, and integrity.
First, implement the Law on Restoration of Trust in the Judiciary. Lustration is incomplete. More than a year into the process, corrupt judges are still on the job. Judges continue to go unpunished when they disregard human rights and demonstrate contempt for the rule of law. The Interim Special Commission for Vetting Judges needs more time to get its vital work done. And the judiciary needs to act on its recommendations so that the lustration process brings real results. The Ukrainian people deserve no less.
Second, strengthen judicial self-governance so that Ukraine’s judiciary can work without political interference and corruption. When an influential or corrupt person calls, looking to buy a decision or threaten a judge, that judge should be able to hang up the phone fully confident that he or she is shielded by her independence and protected by the judiciary. Judges should feel empowered and protected to act independently, knowing they will not face punishment or reprisal for deciding a case on its legal – not political – merits.
The Constitutional Commission has proposed changing Ukraine’s Constitution to strip Parliament, the Presidential Administration and Cabinet of the right to appoint judges, establish, or abolish courts, or make decisions about how funds supporting judicial operations are spent. However, those amendments alone will not guarantee judicial independence. To succeed, judges need to understand the scope of their independence and exercise it with confidence and, critically, integrity. At the same time, other branches of government must give up control – control that has given them power, influence, and, in many cases, opportunities for corruption.
Third, reinforce judicial accountability, transparency, and integrity. U.S. Federal Judge Mark Wolf, known for uncovering the corrupt relationship between Boston mobster Whitey Bulger and the FBI that is featured in a recent Hollywood movie, “Black Mass,” frequently travels overseas on judicial capacity building efforts. His mantra is that judicial integrity is the most important principle to uphold, since independence without integrity creates its own set of problems, particularly for countries with a tradition of corrupt judiciaries. Posting all judicial decisions online, so that they are available to the public, is an important step. Appointing Spokespersons in almost every court also serves as a critical link to the community. Citizen report card surveys, which USAID launched in Ukraine, make it easier for officials to understand what people want and need. Thanks to citizen feedback, there have been real improvements in how justice is served in Ukraine’s courts. Looking to the future, ensuring that all judges and court personnel file their public financial asset declarations online will be another signal of the judiciary’s commitment to greater transparency and accountability.
Of course, reforming the judiciary is only part of the story of ensuring a justice system that delivers justice for all. Equally vital is an independent procuracy that acts with integrity. This means prosecutors who will take on complex corruption cases and punish or imprison even the richest and most powerful when the law requires it.
As one civil society activist put it, the true measure of Ukraine’s commitment to fight corruption is the number of officials from the current administration in prison for corruption. The authorities’ willingness to prosecute all corrupt officials and oligarchs, regardless of their political party or personal wealth, is a critical indicator of its commitment to the rule of law. On this indicator, Ukraine post-Revolution of Dignity still comes up short.
Like the judiciary, the procuracy must transform itself into a modern, politically independent and professional institution to fight corruption, uphold the rule of law, and protect Ukraine’s government and people.
In Odesa last month, I spoke at length about necessary reforms to the Prosecutor General’s office.
Ukraine’s Prokuratura must abandon the Soviet legacy of political control and corruption which has allowed the powerful – including those in government – to get away with influence peddling and human rights abuses. These acts of impunity undermine the rule of law and Ukraine’s future place in Europe’s community of free, prosperous, democratic nations.
As I said in Odesa, the Prosecutor General’s office must stop undermining reforms, stop protecting corrupt prosecutors within its ranks, such as the notorious “diamond prosecutors” arrested in July, and stop blocking criminal investigations into bribery, graft, and political dealing.
The United States is committed to supporting an effective Prosecutor General’s Office which Ukrainians can trust to defend their rights. To get there, we need honest partners who are committed to the rule of law.
Partners like David Sakvarelidze and Vitali Kasko, two courageous reformers working to establish an independent Inspector General to investigate and prosecute corrupt individuals within the PGO. We hope the Prosecutor General’s office will provide Inspectors General Sakvarelidze and Kasko with the resources and authority they need to seek more convictions and restore public trust in the PGO. Kasko’s comments to the media this week that he and other reformers within the PGO are under intense pressure are very worrisome, a sign that the battle between Old Ukraine and New Ukraine rages within this critical institution. I have discussed with Prosecutor General Shokin our strong support for a new regulation on the independent operations of the Office of Inspector General (IG) that meets western standards and clearly defines the IG’s jurisdiction, powers, and authority, in order to enable it to perform its functions in a manner that is effective and credible.
We strongly support President Poroshenko’s commitment to renew the PGO with reformers, with prosecutors who respect rule of law and fight corruption, and who are dedicated to public service. To that end, the United States, with our Eurpean partners, is supporting independent, merit-based testing of procuracy candidates. More still needs to be done to ensure that the procuracy is led by people of the highest integrity. People who will heed the call expressed so clearly on the Maidan: enough. Enough business as usual. Enough corruption and impunity. The Ukrainian people rightfully demand change now. Too many people have sacrificed too much to do anything else.
The United States is encouraged and was proud to support the selection and training of a new group of detectives and analysts at the National Anti-Corruption Bureau. We have great hopes for these anti-corruption crusaders. Now a qualified, capable, and committed Independent Anti-Corruption Prosecutor must be appointed to unlock the anti-corruption bureau’s potential to take down high-level corrupt officials. Expectations are high for the anti-corruption bureau and the Anti-Corruption Prosecutor. The U.S. is strongly committed to supporting their vital mission.
What Ukraine needs now is a way to channel the expectations for a justice system that delivers justice, demanded by those on the Maidan, into action. People need to know what justice reforms mean for them, how they can influence the debate, and how they can ensure that the reforms reflect their aspirations and protect their rights. They need to feel they are a part of a new Ukrainian participatory democracy. They need to contribute.
Today, much is being done to raise legal awareness and foster a culture of rule of law in Ukraine. The Constitutional Commission is convening roundtables in the regions to educate citizens about proposed constitutional amendments. The Ministry of Justice is expanding legal aid across the country, both in terms of scope and access. Civil society organizations like the Ukrainian Helsinki Human Rights Union are empowering students through Human Rights Summer Camps to demand accountability for human rights violations, whether on the Maidan, in occupied Crimea, in Donbas, or in their own towns.
The posters, billboards and television spots produced by Transparency International Ukraine encourage citizens not to stay silent, but to blow the whistle on corruption. Transparency International’s new website empowers people with practical information about how to get health care, enroll their kids in school, file a court claim, or get help from the police without having to pay a bribe.
Such grassroots efforts are helping to solidify a psychological change from the Soviet rule by law to the democratic rule of law. But more must be done. Whistleblowers in government need protections against retaliation. Journalists need unfettered access to officials’ financial asset declarations so they can “follow the money” to any sources of corruption. Your people need to be inoculated against corruption and learn the habits of engaged citizens at school, through civics classes and extracurricular activities. Government officials must redouble their efforts to listen to their constituents and provide opportunities for them to be part of the process. Civil service reform is absolutely crucial, because a society and government that pays its civil servants less than a living wage is essentially expecting them to engage in corruption.
This is a heavy lift. As part of the battle between Old Ukraine and New Ukraine, Ukraine is undertaking difficult, life-changing, future-changing reforms to how officials are chosen, how they do their work, and to whom they are accountable. This is happening in every ministry, in every city and town, and in every organization. But the justice sector is the central battlefield in this struggle. Without genuine reform here, other reforms will falter.
So today, I ask you to help.
Find allies among businesses, academics, civil society, and political leaders. Press the judiciary, the prosecution, the Constitutional Commission, the parliament, and President to kick reforms into high gear. Use your voices, your connections, and your influence openly and unashamedly to engage in the policy debate and hold the government and each other accountable for implementing reforms. And, most important, when you see corruption happening, blow the whistle. Take a stand. Be courageous to stand up for what you believe in. For the future of Ukraine.
And next year, when we gather here for the third USUBC-KSE conference, let’s look back at the foundation you’ve laid for the rule of law in Ukraine and measure Ukraine’s progress in building up a new European state, free of its corrupt Soviet past. Let’s agree that we will look back and be able to say once again: what a difference a year makes.
Thank you very much.