Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 28: Where Too Little Judicial Deference Can Impair the Administrative Process: The Case of Ukraine
Howard N. Fenton Questions concerning the degree of deference that courts owe decisions of the executive permeate discussions of administrative justice systems. Although at least some deference is the norm in the developed world, in one post-authoritarian system – that of Ukraine – the emerging response has been to give executive decision-making little or no deference at all. The recently enacted Code of Administrative Adjudication of Ukraine (2005) emphatically prescribes both the authority and the responsibility of the courts to protect the rights of people against the power and authority of the state and, in doing so, weights the system heavily against the executive. This may be understandable as a reaction to both the authoritarianism of the former Soviet regime and the widespread corruption of the post-Soviet government. Nonetheless, it serves as a major impediment to development of a mature administrative justice system in Ukraine, which is the topic of this brief contribution. Upon becoming independent following the break-up of the Soviet Union, Ukraine had to establish its own governance structure, including new courts and judicial procedures. The country has been slow to develop its administrative justice system during this period, failing repeatedly to enact an administrative procedure law, and only creating administrative courts and adopting a judicial review law in 2005. However, this code made it abundantly clear that in Ukraine, the system of administrative justice aligned the courts and the citizens against the powers of the state. To appreciate the approach Ukraine has taken, it is helpful to look at...
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