Fenton, Howard N. --- "Where Too Little Judicial Deference Can Impair the Administrative Process: The Case of Ukraine" [2010] ELECD 830; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 28

Section Title: Where Too Little Judicial Deference Can Impair the Administrative Process: The Case of Ukraine

Author(s): Fenton, Howard N.

Number of pages: 7

Extract:

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 defer-
ence 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 develop-
ment 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 proce-
dures. 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 ...