What can a comparative study of courts teach us about the independence of the judiciary in emerging democracies? Maria Popova's book examining the lower courts of Russia and Ukraine provides a number of insights that challenge prevailing wisdom on the relationship between new democracies and judicial independence. Popova begins by telling the story of a Ukrainian candidate de-registered in the 2002 Ukrainian parliamentary election for allegedly failing to complete his paperwork properly. After losing his final appeal at the Supreme Court, the man became convinced that the central government had intervened to derail his political ambitions. From this starting point, Popova seeks to discover why independent courts are rarely seen outside of consolidated democracies and to identify factors that make judicial independence more or less likely to materialise in emerging democracies. She defines ‘emerging democracies’ as states that hold elections to select the executive and legislative branches of government but have yet to consolidate a democratic system.
Popova's principal contribution is her strategic pressure theory presented in Chapter 2. The theory builds upon the work of scholars who argue that judicial independence arises from political competition: when a regime is uncertain of its political future it will take steps to bolster judicial independence and insulate judges from the other branches of government in order to protect itself from future persecution by its opponents through the courts – a form of political insurance. Popova adapts this idea to the context of emerging democracies where she observes that intense political competition seems to have the very opposite effect. Politically vulnerable incumbents in those countries prefer courts susceptible to regime manipulation for several reasons. First, the benefits of a dependent judiciary are more significant in emerging democracies where courts can be used to achieve the regime's short-term political goals by directing outcomes in politically salient cases. Second, there is a lower political cost associated with manipulating court cases given old informal channels of influence that often continue in spite of changes in the formal rules (i.e., the constitution or legislation) designed to shield judges from interference. Third, the manipulation of courts in emerging democracies ends up spreading to a wide range of legal cases, producing a collective action problem that results in regime control of a large number of judges and effectively prevents the judicial branch from pushing back against interference. The result is less independent judicial output and a system of adjudication that favours incumbents, a phenomenon Popova describes as the ‘politicisation of justice’.
In Chapters 4 and 5, Popova tests her strategic pressure theory by taking the reader on a journey into the heart of Russian and Ukrainian trial courts. Popova meticulously develops her methodological approach in Chapter 3. While recognising that there exist many different conceptions of judicial independence and methods of testing it, she rejects approaches that focus on formal rules (they frequently do not work in practice), regime attacks on the judiciary (we do not know the true reasons for these incidents), and the career promotions of judges closely linked to the regime (an indirect measure combined with a lack of reliable data in emerging democracies). Instead, Popova concludes that the analysis of case outcomes in a sufficiently large sample size provides the best indication of independent judicial output. Output that does not systematically reflect the preferences of non-judicial actors can be linked to the rule of law's promise of equal protection and responsibility under the law. In other words, a significantly high ‘win’ rate for the government might suggest judicial bias in favour of the incumbent regime. As part of her methodology of examining judicial output, Popova devises a ‘multistage win rate analysis’ that seeks to control selection biases by screening out frivolous cases and accounting for the possibility of government contestation only in cases that it thinks it will win. Popova selects cases from the lower trial courts on the basis that they hear the vast majority of cases and are the first – and often only – point of contact between citizens and the justice system; therefore, lower trial courts play an important role in the realisation of the rule of law. To form her datasets, Popova selects two types of cases to test the independence of courts from incumbent politicians: electoral registration disputes and defamation claims against media outlets. More than 1,000 cases were analysed during the period of 1998 through to the end of 2003. In each of these cases, Popova meticulously recorded the trial outcomes, researched and coded political affiliation, socioeconomic status, and resources of the litigants.
Popova's study of these Russian and Ukrainian legal cases lends support for her strategic pressure theory's central claim that intense political competition in emerging democracies is associated with weaker courts, at least from political incumbents in these types of cases. For example, although both countries had low independent judicial output in the cases examined, the Russian courts had more independence from the preferences of politicians in electoral disputes than their Ukrainian counterparts who were more than twice as likely to be successful (Chapter 4). In defamation lawsuits against the media, Popova's data again shows that Russian judicial output was less dependent on the preferences of political actors as compared to the Ukrainian courts: Russian politicians were less successful in their defamation claims (winning 60 percent of the time) compared to their Ukrainian colleagues who not only won their cases more often (99 percent of the time) but also received an advantage in moral damage awards compared with opposition-affiliated plaintiffs (Chapter 5). Given that Russia had a much less politically competitive environment than Ukraine during the period studied, Popova interprets the results as providing evidence for her strategic pressure theory on the basis that the vulnerable Kuchma regime in the Ukraine “sought victory in every case not just to muzzle its critics but also to signal its strength to its opponents” (p. 127). Popova complements her analysis in Chapters 6 and 7 by questioning whether it can be said that Russian courts are truly independent if the regime could manipulate the outcome of cases but simply refrained from doing so on the basis that it felt politically secure. In a qualitative study, Popova surveys a number of informal practices carried over from the Soviet period that provide opportunities for the regime to pressure the judiciary, which Popova describes as “levers of influence”. Popova's analysis demonstrates that Russian politicians did not always use the informal channels available to them to pressure courts while the electorally vulnerable Ukrainian incumbents took full advantage of them. What is particularly striking is how informal practices seem to persist despite formal rules, which are especially comprehensive in Russia's case, that seek to insulate courts from the other branches of government. Popova concludes that old informal authoritarian practices play a role in the observed lack of independent courts in these emerging democracies and that an independent judiciary cannot be created through institutional engineering alone.
The study presented by Popova in this book is an important contribution to the literature on judicial independence that will be useful to both political scientists and legal scholars. The work illustrates the value of a focused comparative approach to revealing how legal principles operate in practice and offers important conceptual and theoretical insights into judicial independence. In particular, the study provides a rich contextual basis for understanding Russian and Ukrainian trial courts during the period studied, throwing light on some of the problems of independent judicial institutions in the cases examined. What remains to be seen is whether the predictions of the strategic pressure theory hold true in other emerging democracies and in different types of legal cases. Popova's definition of an ‘emerging democracy’ is broad and captures a large number of countries, yet the judicial method and function are likely to vary from one emerging democratic state to another considerably. Some countries, for example, may lean on courts more heavily for carrying out particular economic or social policies that could generate what seems like a biased result. There are a number of contextual factors that must be taken into account at the domestic level, from the constitutional role assigned to the court to the economic, historical, and social climate. While a context-specific approach does not negate the importance of comparative study, it may be the case that future work will require the strategic pressure theory to be qualified in some respects. Nevertheless, Popova has initiated a dialogue by providing an original methodological approach focused on judicial output that should prove capable of application to a number of other legal cases and countries, although this will not be without challenges for those more comfortable with qualitative, as opposed to quantitative, approaches to studying judicial institutions.
In the end, Popova achieves much with her clear writing and sharp analysis: her original theory builds upon the work of other scholars and is borne out by her detailed study, which challenges the prevailing conception of the relationship between political competition and judicial independence. It also confirms a gap – or more aptly, a chasm – between de jure and de facto judicial independence in these post-Soviet states. Her call to judicial reformers for an increased focus on informal constraints and other institutions such as a free press is worthy of consideration. It is clear, as Popova argues in her conclusion, that democracy requires more than just elections and that independent judicial output requires more than just formal institutional controls. Both are important to nearly all conceptions of the rule of law and this book ultimately demonstrates the need for further comparative study of courts, using a variety of both qualitative and quantitative methodological approaches, to look behind the pervasive rhetoric. Such studies stand to offer both conceptual and theoretical insights into democracy, judicial independence, and the rule of law along with useful lessons for reform projects carried out by the multitudes of international organisations operating in the field.
