The Irony of Promoting Administrative Justice

Guest post by Howard Fenton

In 1996 I traveled to the newly independent Ukraine to talk with Ukrainian judges about American administrative law. The Ohio Supreme Court had contracted with USAID to provide training to the judges across the full range of American law utilizing Ohio judges and law professors. I volunteered to lecture on administrative law and quickly realized the significant differences between the American and Soviet systems as I listened to the questions and feedback from Soviet judges.

Most telling were the judges’ questions about how we enforced court decisions against government officials or agencies. The judges could not comprehend why a government bureaucrat would obey an order from a judge. Further questions, in fact, included asking me how big an army or police force the Chief Justice had to enforce court rulings!

I began to understand this question as I learned more about how courts in the Soviet Union fell far behind the Communist Party or government bureaucrats in power and prestige. As an American trained lawyer (and former government official) with an instinctive respect for judges, it did not occur to me that American bureaucrats might refuse to obey court decisions. However, I was at a loss to tell these judges why that was true other than centuries of Anglo-American history and tradition, although they latched on the contempt powers of the courts as the real reason. Today I worry that this history and tradition (and even the contempt powers) might not be enough to ensure that our government officials will respect the decisions of courts. After spending thirty years trying to convince other countries that our system of administrative justice offered a better path to accountability and transparency, it is painful to see that system in danger. 

Constitutional and commercial law reform projects dominated the post-Soviet rule of law landscape in the 1990s, but the benefits of administrative law reforms resonated with some rule of law staff at USAID, and a number of projects were started. I worked primarily in the former Soviet republic of Georgia, but also in Ukraine, Armenia, and Uzbekistan during that period. In Georgia, USAID worked with the Council of Europe and the German foreign assistance office (GTZ) to help draft brand-new administrative procedure laws for agency practices and judicial review. I worked closely with a Dutch and German professor as we learned that administrative law in the Soviet Union primarily referred to their “administrative violations code” consisting of minor crimes and civil disturbance rules, often used to stifle dissent. Reform-minded officials, however, welcomed new Western-style laws addressing accountability and transparency for government officials.

Our goal was to help these countries adopt laws that would guarantee the rights of ordinary citizens to challenge adverse government actions in a fair and transparent process. These reforms always included the right to go to court to seek relief against the government for adverse decisions if the person was not satisfied with the agency’s decision. There were numerous obstacles in drafting these new laws and getting the newly empowered parliaments to adopt them but implementing them posed even greater challenges. During this time USAID actively promoted both the drafting of initiatives and their implementation where the drafting and adoption was successful.

The fundamental challenge to successful implementation of these reforms was that much of the government and the judiciary were left over from the Soviet system and were threatened by both the transparency and accountability the new laws required. Coupled with corruption that often permeated both the bureaucracy and the courts, promoting a new system of administrative justice was a daunting task. I spent a year in Tbilisi, Georgia in charge of the USAID administrative law reform project working with talented and dedicated Georgian lawyers who knew their way around the local bureaucracy and courts. Georgia had strong leadership at the time that was committed to these reforms, headed primarily by a U.S. trained lawyer who was the leader of the government’s law reform initiatives. He was particularly committed to administrative justice reform and pushed through the laws that my Dutch and German colleagues and I assisted in drafting. As the laws began to take effect, we especially watched to see the response of the bureaucracy to court decisions reversing government actions. In the year I was directing the project we enjoyed the acknowledgement and acceptance by the government of several court decisions against it.

The role of USAID in promoting law reforms in the newly independent Soviet republics as well as other post-communist countries was ambitious with mixed results. In some countries—such as the Baltic countries of Estonia, Latvia, and Lithuania—the transition to Western models of administrative justice has been largely successful. In other parts of the former Soviet Union success has been hard to measure or sustain. Some of the problems will seem familiar to us today. 

For example, government officials resist complying with the transparency rules that require disclosure of agency information to the public, even when ordered by the courts. Government bureaucrats also resist and delay complying with court decisions they disagree with, often ultimately ignoring them without consequence. Government agencies often broadly interpret laws with a positive purpose to harass or limit the ability of public groups to challenge or speak out against government decisions or practices.  The courts, designed to be independent, nonetheless rule for the government, either because of corruption or control by the government. These things happen under the new laws and procedures developed over the last decades, reflecting the ability of ill-intentioned government leaders to distort neutral laws and structures.

What is more troubling to me now is how this erosion from the rule of law is happening in our own country under long-standing and well settled laws. As disappointing as it is to see reform efforts protecting citizens in foreign states fail, it is far more distressing to see these protections failing here in America because of indifferent or ill-intentioned government officials. It is indeed ironic that those of us who spent the last 30 years helping develop protection for people from the government are finding ourselves fighting to protect our own citizens from our own government.

The loss of America’s commitment to the rule of law abroad and USAID’s role in building a legal foundation for administrative law reform is a modern tragedy. It pales in comparison however, to the loss of this commitment to the rule of law and administrative justice to our own country today.

ABOUT THE AUTHOR: Howard Fenton is Professor of Law Emeritus at Ohio Northern University. He practiced regulatory law in Washington D.C. before beginning his teaching career. While in academia, he also served as a consultant on rule of law projects for USAID, focusing primarily on administrative justice reforms.