Wanted now: Independent, impartial and transparent courts
The April 8 decision of the Constitutional Court of Ukraine, which legitimized the governing coalition formed by President Viktor Yanukovych, raised again the issue of judicial reform in the country.
I will not dwell on the Court’s decision, because in my opinion, the Constitutional Court has the authority to render a decision that the majority agrees upon. Nevertheless, such a decision, disregarding the Constitution and laws, has its consequences. It undermines the rule of law and the separation of powers.
Ukraine’ s Constitution is very clear on this subject; that a majority in the Verkhovna Rada can only be formed by factions, not by individual defecting deputies, and yet the present coalition of the new government came about as result of individuals switching sides. The recent decision is a reversal of a previous decision of Sept. 17, 2008, just one and half years ago dealing with the same subject matter.
Legally nothing has changed -- except for the change in the government. Therefore, if the rule of law and democracy are to survive in Ukraine, its judiciary must undergo immediate changes, the sooner the better. What is needed is an independent, impartial and transparent court system that supports public trust and confidence.
More than 400 participants of an April 20-22 judicial conference sponsored by the U.S. Agency for International Development’s Rule of Law Project in Ukraine emphasized that judicial reform is needed. The following recommendations may serve as a guideline:
A strong, independent judiciary holds all citizens and officials accountable to the written law and thus is vital for the proper functioning of a democracy. First, the rule of law must be upheld. Second, governmental powers must be adequately separated so that they can check each other. Third, the judiciary must be strong and independent.
I. Rule of law
The rule of law is the lynchpin to promote democracy throughout the world. Speaking before the United States Congress in 1861 about the establishment of the U.S. Court of Claims, President Abraham Lincoln said: “It is as much the duty of government to render prompt justice against itself, in favor of its citizens, as it is to administer the same, between private individuals.”
Rule of law has numerous meanings, but two are especially relevant at any time.
First, law must be supreme. Each person is subject to the law. As Lincoln said, the government must swiftly render justice against itself, and the rule of law guarantees that the law is supreme not just to ordinary citizens, but also to the government itself.
Second, the law must be centered upon a concept of justice that emphasizes interpersonal adjudication. Not only must the substance of the law be the same for everyone, but the procedures by which law is carried out must be the same. Special rules that take important officials outside the purview of the law cannot be tolerated, and the procedures of the law ought to be blind when looking at litigants.
II. Separation of powers
A political system based on the separation of powers with appropriate checks and balances is vital to the preservation of democracy. The aim of a judiciary and, more broadly, of a government, is to provide stability through the consistent application of the law and adherence to the Constitution. The separation of powers is an effective way to do this, since it sets up a system of balances under which the different branches watch each other and keep each other in check.
In order for separation to be effective, the different branches of government must be co-equal, with each wielding sufficient power; no one branch can so dominate the government as to render separation irrelevant. This type of balancing is especially important in regards to elections.
If citizens cannot be assured of a fair and honest election process, they will have no faith in other components of the political process. Social stability rests on the individual’s confidence in the electoral process to function correctly in every respect. Separation of powers bolsters this confidence by using the judiciary to check any undue pressure that might be exerted by the executive or legislative branches.
III. An independent judiciary
A strong, independent judiciary is one of the most important ways to separate power and uphold the rule of law. Three aspects of an independent judiciary are relevant to its success in upholding the law: procedures to enable independence; treatment of the judiciary as an independent body; and judicial conduct that accords with and bolsters its independence.
The first aspect, procedures for independence, requires that judges be granted protections to ensure their ability to remain independent.
In the United States, the Constitution guarantees the protections of life tenure and non-reduced salaries so that federal judges will not fear repercussions for making an unpopular decision. The American Bar Association noted in 2005 that judicial salaries in Ukraine are “universally regarded as too low” and that under-funding of judicial facilities is a serious problem. Adequate funding must be made available to enable the judiciary to become self-sufficient and independent from other branches of government.
Absent these protections, judges’ ability to make politically or socially unpopular decisions is imperiled, since they could lose their jobs or salaries for the content of their decisions. In addition to salary and job protection, procedures should be put in place to ensure the prompt publication and availability of judicial decisions, so that the judiciary can truly act as its own body.
Procedures must also be in place to timely and adequately enforce judgments, so that judicial commands are not ignored. These protections insulate judges from the pressure to conform decisions to prevailing political sentiment and allow them to focus on and uphold the rule of law.
Second, the judiciary must act as and be treated as an independent branch of the government. The judiciary, as well as each individual judge, must act as co-equal to and independent of the other branches of the government.
Judges are independent in this sense if they are not beholden to any other branch of government or any political party. It is vital that the legislative and executive branches refrain from attempting to influence the judiciary, and it is even more vital that the judiciary resist and rebuff any attempts at influence.
In a 2005 review of the state of the judiciary in Ukraine, the American Bar Association noted that “the perception of judicial corruption is widespread” and that “government officials employ an array of means in their attempts to influence the judicial decisions.” Judges must fight these improper influences and assert their independence. Judges will not be respected until they respect themselves enough to act with the courage and conscience required of an independent judiciary.
Third, the judiciary must act as an independent body that impartially applies the law. Even with the best procedures in place, the judiciary will never earn the trust of the people and the rest of the government if the judiciary itself does not act as an independent body. Judges must be honest-brokers, in that they are independent from and neutral among the parties that appear before them.
Judges must decide matters before them impartially, on the basis of facts and the law, without any restrictions, improper influences, inducements, or threats, direct or indirect, from any party or institution for any reason. A judge’s moral commitment to this form of independence eliminates favoritism and corruption from the nation’s judicial system. If judges fail in this duty the public will lose confidence in the basic equity of its society, generating cynicism, anger and instability.
Bohdan A. Futey is a judge on the United States Court of Federal Claims in Washington, D.C., appointed by President Ronald Reagan in May 1987. Futey has been active in rule of law and democratization programs in Ukraine since 1991. He has participated in judicial exchange programs, seminars, and workshops and has been a consultant to the working group on Ukraine’s Constitution and Ukrainian parliament. He also served as an official observer during the parliamentary elections in 1994, 1998, 2002, and 2006, and presidential elections in 1994, 1999, 2004, and 2010, and conducted briefings on Ukraine’s election law and guidelines for international observers.