Meddling with Justice

Abstract

The judiciary in post-Orange Ukraine is in deep crisis.1 By 2010, as Ukraine marked the fifth anniversary of the Orange Revolution, both domestic and foreign observers were decrying dependence and corruption in the country.2 The winner of the Orange Revolution, then-President Viktor Yushchenko, repeatedly blamed the system for serving as a brake to the country's democratic development.3 After losing her bid for the presidency to the opposition leader Viktor Yanukovych in February 2010, then-Prime Minister Yulia Tymoshenko accused the High Administrative Court of dishonesty and pro-Yanukovych bias for their failure to expose fraud. She went on to accuse the Constitutional Court of corruption and shamelessness for declaring pro- Yanukovych parliamentary coalition constitutional.4 President Viktor Yanukovych, newly elected, also vowed to get rid of pliant and corrupt judges.Judges have used every occasion to complain in public that the system is in crisis due to unprecedented pressure from public officials.5 Freedom House reported that the judicial framework and independence was stronger in the Ukraine of 1999 than it was in 2009. The World Bank also revealed that the Ukraine of 1996 had a better Rule of Law score than the Ukraine of 2008. Newspapers and TV shows have been full of stories about the growing prices of judgeships and decisions. And Ukrainians themselves increasingly distrust the judiciary-only 4 percent of them approve of the performance of courts.How and why does the Ukrainian judiciary suffer from greater pressure and dependence, deeper corruption, and public disdain while at the same time featuring highly contested, free and fair national and local elections; alternating parties in power; flourishing freedom of the mass media; heavy involvement of international donors in legal reform, and (up until the advent of the global financial crisis in the fall of 2008) high levels of foreign investment in the growing seven-percent-a-year economy? More generally, how and why do highly competitive elections and highly fragmented politics go hand-in-hand with the weakening of power?Addressing these questions is crucial for our understanding of the actual dynamics of empowerment, because the experience of Ukrainian politics runs against the predictions of the mainstream theories of empowerment. These theories argue that the following three conditions are necessary, if not sufficient, for developing accessible, independent, and powerful judiciary: 1) strong political opposition, 2) fragmentation of political and economic power, and 3) vibrant electoral markets. Post-Orange Ukraine has all of these conditions, yet they exist simultaneously with an increasingly dependent judiciary.This essay argues that increasingly competitive elections and highly fragmented politics accompany weaker courts in Ukraine because rival elites continue playing power politics in order to gain and/or remain in power. The high stakes of political competition force rival elites to use all available resources (including courts) to win elections, to hold onto power, or to undermine the political and economic bases of rivals. Politicians and economic magnates can get away with this clearly criminally punishable behavior due to the entrenchment of impunity, which subservient courts only strengthen. Fearing no sanctions for obstructing justice, the powerful feel that they can intervene in any trial. As a result, highly competitive elections and fragmented politics, coupled with well-entrenched impunity, are associated with increasing dependence.To show how and why the rulers and the opposition have faced strong incentives to capture the courts (which in turn were expected to provide important benefits to their patrons) and acted upon these incentives to meddle with decision-making, this essay proceeds to examine the key indicator of disempowerment-the improper interference with decision-making. …