The effect of international insulation of judicial appointments on executive-judiciary relations: insights from Ukraine’s judicial reform path

Abstract

Since gaining independence over 30 years ago, Ukraine has been facing the seemingly Sisyphean challenge to undertake judicial reforms that would strengthen the country’s democracy and expedite its European integration process. A rather innovative approach stemming from these judicial reform efforts of recent years can be found in the international insulation of judicial appointment procedures – in other words, the introduction of international experts who can determine whether a candidate for a judicial position is successful or not. Scholarly literature suggests that time-limited international insulation can lead to bureaucratic institutions that are better protected from political influence and whose employees put the interest of the public and the rule of law above personal interests. Since in the past, relations between executive and judiciary in Ukraine have experienced several challenges that have undermined the country’s democratic credentials, the following question seems worth asking: Does international insulation help to bring about executive-judiciary relations as they should ideally be in a representative liberal democracy? In order to find an answer to this question, this research paper constructs an ideal model of executive-judiciary relations in a democracy based on the concepts of legitimacy, accountability, mutual toleration and institutional forbearance and the sub-concepts of quality and impartiality. This model then serves as a benchmark against which two Ukrainian courts of first instance – one with international insulation in its appointment procedures (the High Anti-Corruption Court) and one without (the District Administrative Court of Kyiv) - and their respective relations with executive actors and organs will be juxtaposed. This comparison will be undertaken through an interpretive content analysis of statements by representatives of the two selected courts, of executive organs and statements by organisations from civil society and the international arena. The result of this research is that the relations of the executive with the court with international insulation are closer to the constructed ideal model and therefore more democracy-friendly than the relations with the court without international insulation. While more research is required to better understand the impact of international insulation on the judiciary (and on its relations with the executive) overall, this paper suggests that it can prove beneficial in bringing about executive-judiciary relations that are conducive to democracy.