A bit of history and actuality ...
About a year ago, the Government Commissioner for anti-corruption policies proposed to the Cabinet of Ministers of Ukraine a new initiative. According to his idea, any normative act draft, which went to Cabinet, before getting through the Government, should undergo the anti-corruption expertise. Certainly, the introduction of such practices was seen as a positive step of the authorities, based on the international experience of corruption prevention.
Although it is worth to recall, that the initiative of the Commissioner was in effect only on the level of the Cabinet of Ministers of Ukraine. So, despite its entire positive objective, the situation resembled in fact the famous parable, about the mountain giving birth to a mouse. Why? Because the practice shows that the most corrupted and the regulations adopted at the local level. Often, their adoption is carried out in violation of procedure, without a detailed study and expert analysis. Therefore, even if all the documents received from the Government for consideration do not contain the risks of corruption, the influence of anti-corruption expertise is minimal, covering no more than 10-15 percent of all regulatory acts produced in the country. The bulk of the documents developed in the regional and district state administrations is just not covered by the anti-corruption expertise. Despite this, the Ministry of Justice has developed the methodology of anti-corruption expertise designed to change the situation. The ministry of Justice through its offices throughout the state began a systematic analysis of the anti-corruption instruments which are reviewed and examined by the authorities. This means that from now on, any instructions, programs, orders or other regulatory legal acts developed at Ukrainian national or local level will get trough the anti-corruption expertise.
“PROS” and “CONS” the Anti-corruption methods of the Ministry of Justice
Currently in Ukraine there are at least two methods of anti-corruption expertise. The first was developed by Office of Government Commissioner for anti-corruption policy, the second by the Ministry of Justice. The latter appeared in the form of an order from the Ministry of Justice from 25th of June 2010 under the number 1380 \ 5. Basically, in this review will be discussed the guidelines of the Ministry of Justice.
The methodology provided by Government Commissioner is more detailed and comprehensive, seeks to identify a large number of corruption risks. However, this methodology is difficult to use, primarily because of the complicated algorithm of the analysis of normative-legal draft acts. Therefore, more the method of the Ministry of Justice should be considered as more favorable because its practical orientation. The recommendations are written for the lawyers who are employees of the Ministry of Justice.
It is interesting to note that the guidelines contain some examples of typical formulations, which hide corruption risks. But the document itself clearly defines the limits of discretion, of powers that give officials an opportunity at its sole discretion to determine all or part of the form and content of their administrative decision, which are often made in their favor...
Another positive factor of the methodology is the duty of the employees of the Justice Ministry to provide suggestions and recommendations to the content of the expert legal draft acts in order to eliminate the factors fostering corruption. Also, the experts should include in the legal draft acts the preventive anti-corruption provisions (provisions designed to prevent and deter the law violation by corruption).
A few words about the possible risks by applying the guidelines of the Ministry of Justice.
The first risk traditionally runs from school - the larger the volume of the lessons, the greater is the chance that they will not be learnt by the students. The recommendations are rather comprehensive document with legal orientation for the guidelines presentation. And this greatly complicates the use of methodology addressed to the central and local executive authorities. As a striking example of this can be the repealed Law on Public Procurement. In principle, this law contained a good logic, and introduced the practice of transparent tender procedures. But the overall length of the document reached about 70 pages with 10 font size. So, just to understand how this law works, it must be read at least three times. And in order to work on it, it was necessary to use it under the methodical support of relevant specialists.
At the present time, the anti-corruption expertise in Ukraine is professionally produced only by two institutions: the Ministry of Justice and the Office of Government Commissioner for the anti-corruption policy. This means that today in Ukraine, especially at the local level, there is a lack of high qualified specialists, capable to conduct the anti-corruption expertise, even with guidelines from the Ministry of Justice. Therefore we can assume that it will take at least a year, to ensure that in a suitable environment for the experts would be formed and the practice of the recommendations become systemic in Ukraine.
However, only a special training and a methodological support for the implementation of professional expertise are not enough. After all, life is often much more complicated than the theory written on the paper. Therefore, an effective use of provisions in the recommendations requires the involvement of anti-corruption experts familiar with the scope of regulation of normative legal act. Such persons could be the activists of the community councils, which have been established in most of the executive authorities of Ukraine. The members of the community councils are mostly experienced professionals who have the necessary experience and qualifications, although they are not especially familiar with the anti-corruption expertise. Interestingly, the draft of the new CMU Decree on community councils assumes the conduction of public anti-corruption expertise as one of the main tasks of those councils.
Another risk in the application of guidelines is a purely Ukrainian tradition to adopt the legal acts without the mandatory approval of the Minister of Justice. This means that in many cases, the experts of the Ministry of Justice may simply be unaware of the existence of regulations fostering corruption which were "forgotten" to be turned over to their approval. And finally a bit of imagination. In two years, the anti-corruption expertise is becoming the norm for the Ukrainians, and therefore each normative draft act will get trough the expertise. Now, note the question! To who will be this normative legal act be passed - to the department of internal controls, established in government and subordinated to the Government Commissioner for anti-corruption policy, or to the local management of the Ministry of Justice? Today, this issue is still not coordinated, and therefore we should expect a duplication of functions for the anti-corruption expertise at the two departments. For officials, this issue is even easier - after whose reviewing is the document considered as getting through the anti-corruption expertise?
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Oleksii Khmara, Bocharov-Tuz Volodymyr
Creative Union «TORO»
Transparency International National Contact in Ukraine
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