Institutional Viability and High Courts: A Comparative Analysis of Post-Communist States

Abstract

The development of judicial viability involves a process by which constitutional courts attain institutional stability and value as an end in itself. Institutional stability denotes the courts' capacity to withstand environmental shocks, and value involves entities acquiring a distinctive mission and identity in the newly democratized governmental system. More precisely, we argue that constitutional courts attain functional (substantive) viability when they attain high levels of three features: differentiation (unique character and mission); autonomy (functional insularity); and durability (institutional resilience and adaptability). The emergence of judicial viability, therefore, lies in the interplay of these features over time. Using factor analytic methods, we derive a single score that accurately measures these institutional features in post-communist states.

Notes

A previous version of this paper was delivered at the Interim Meeting of the International Political Science Association's Research Committee for Comparative Judicial Studies in Melbourne, Australia, January 17–18, 2007. The authors thank Brian Galligan, the anonymous reviewers, and the participants of that conference for their insightful comments and suggestions.

¹This is not to say that other factors do not influence levels of institutionalization. We recognize that other aspects play an important role as well, such as socio-economic and political circumstances, levels of economic development, and democratic consolidation. This is especially true in post-communist countries where circumstances pertaining to the collapse of the Soviet Union vary across newly independent states.

²Alternatives to an independent facility include housing the court with the Ministry of Justice, another court building, or within the Parliament.

³A judges’ association is defined broadly to refer to organizations formed by judges to represent their interests, promote their professional training, and protect their judicial independence. Such organizations include judges’ unions and professional associations.

⁴Several scholars make similar arguments about the importance of life tenure (see Tate and Vallinder 1995; Larkins 1996; Schwartz 2000; Smithey and Ishiyama 2000; 2002; and Helmke 2002).

⁵Furthermore, Rogers and Vanberg (2002) and Vanberg (1998; 2001) note the informational advantage gained by judicial institutions through the possession of abstract and concrete judicial review.

⁶Specifically, we look at the following post-communist states: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Macedonia, Moldova, Mongolia, Poland, Romania, Russia, Serbia and Montenegro, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.

⁷See Appendix 1 for specific coding rules for each variable.

⁸Additionally, the lack of powerful computing resources slowed the development of factor analysis as a statistical method.

⁹From hereon, we focus on the results obtained from the single factor model and refer our readers to Table 1 for the results of the two factor model. We believe that such focus is appropriate both theoretically (since we argue that judicial viability represents a single underlying dimension of judicial institutional growth) and methodologically (since our single factor model explains almost 90% of the total variance and none of our variables load significantly on the second factor).

¹⁰At least two support personnel per judge.

¹¹However, it is important to note that by the end of 2005 the mean age for the post-communist constitutional courts is 12 years, and a vast majority of courts cluster in the 10–14-year old range. We thus caution our readers in interpreting these results and reiterate that the physical age of the institution is a necessary but not a sufficient condition for institutionalization.

¹²Also see Appendix 2 for a full list of judicial viability scores and ranks by country.

¹³Since then, the government has renovated the building of the Constitutional Court several times and updated its network capabilities in 2003.

¹⁴Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania, art. 7.1, Law No. 8577, 4 FLET. ZYRT. 101–22 (2000).

¹⁵The Constitution was amended in December 2004 (see BVR, No. 2/2005, art. 44) as part of a compromise with the outgoing government. These amendments do not affect the judiciary, but they attempt to transform Ukraine into a parliamentary form of government, providing for a stronger Verkhovna Rada of Ukraine (which will appoint and dismiss the Prime Minister and most other ministers) while significantly reducing the authority of the President. Owing to their perceived controversial nature and alleged violations of procedural guidelines during their adoption, the President, on a number of occasions, had hinted at a possibility of appealing the constitutionality of these amendments before the Constitutional Court of Ukraine.

¹⁶Ukraine's judicial administration system is extremely convoluted, with numerous bodies sharing the responsibilities for different aspects of court administration. The highest bodies in this system are the Congress of Judges of Ukraine and the Council of Judges of Ukraine (COJ), its executive arm.

¹⁷Const., art. 148.

¹⁸LJS articles 41(11), 50(11); LCC art. 31.

¹⁹Const., articles 40.2, 49.2; LCC articles 25., 49.2.

²⁰See CCU Procedural Regulations §74.3. It is interesting to note that no other judge or court in Ukraine is given this level of administrative control.

²¹Constitution, art. 150; Law on the Constitutional Court, art. 40.

²²Law on the Constitutional Court, articles 93–94.

²³For instance, American Bar Association's Ukraine 2006 JRI report mentions that the CCU has issued a number of essentially repetitive decisions on partial unconstitutionality of annual budget laws, including those related to the judicial budgets. Nevertheless, every subsequent budget law includes the same language as that which was deemed unconstitutional. In another example, the government, in a matter that was pending before the European Court of Human Rights, failed to inform it about a relevant decision by the CCU. Unfortunately, no legally specified mechanisms are available to the CCU to compel the government to comply with its decisions.

²⁴Apparently, the VRU was interpreting its right to control swearing in of the justices as a veto power against appointees of the President and the Congress of Judges. Most observers agree that this was constitutionally impermissible. Interestingly, the possibility of such a situation was forewarned as early as 2 months prior to its occurrence (see Bohdan 2005).

²⁵As of 4 August 2006, Verkhovna Rada appointed Holovin, Kolos, Markush and Ovcharenko as Constitutional Court judges. President expects the Court to resume work on 7 August 2006. (Source: Unian News Agency at URL: <http://www.unian.net/eng/lastnews/>.)

²⁶Questions concerning the percentage of the national budget allocated to the court system cannot be addressed because the national budget is not a publicly available document. During his interview with the American Bar Association's Judicial Reform Index (JRI) assessment team in 2002, the CC representative was unwilling to divulge the exact amount of salary, noting that salaries in Uzbekistan are generally quite low, but at least the salaries CC judges are paid are comparable to those paid to other high level government officials.

²⁷Constitution of the Republic of Uzbekistan, 8 December 1992, Art. 97.

²⁸Law on the Constitutional Court, 1995, Art. 19.

²⁹Some experts believed that the CC caseload would increase in 2002 because it was given authority to review decisions and instructions of the Prosecutor General to ensure they comply with the constitution (pursuant to Art. 13 of the new Law on the Procuracy, NO. 257-II, 21 August 2001). Despite this enhanced jurisdiction, however, no cases of this type have made it to the CC. Furthermore, neither lawyers nor lower court judges could cite one key CC decision that had an important influence on civil rights or liberties. Nor could they cite one decision that had arguably been made against the interests of the executive power. Several referred to the CC as a ‘dead’ organization (see Uzbekistan 2002 JRI report, available at http://www.abanet.org/ceeli/).

³⁰Freedom House measures democratic freedoms according to two broad categories: political rights and civil liberties. These categories contain numerical ratings between 1 and 7 for each country, with 1 representing the most free and 7 the least free. To facilitate interpretation, we invert the scales; using the inverted scale, 1 represents least free and 7 represents most free rating. (FH data and methodology is available at www.freedomhouse.org).

Additional information

Notes on contributors

Kirill M. Bumin

Kirill M. Bumin is a PhD candidate in the Department of Political Science at the University of Kentucky and a Visiting Instructor at Georgia Southern University. Kirk A. Randazzo and Lee D. Walker are Assistant Professors in the Department of Political Science at the University of South Carolina.