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Judicialization of politics: The
post-Soviet way
Armen Mazmanyan*
This article analyzes cases of higher court involvement in “pure politics” in post-Soviet countries. The main purpose of this endeavor is twofold. First, the work contributes evidence from
this under-studied region to enrich the debate on judicialization and extend its reach. Second,
the article traces the nature of political interventions by courts in post Soviet countries and
explores whether these represent patterns of judicialization typical to other polities. In particular, this article pays special attention to one essential facet of judicialization—political
empowerment of the judiciary—to analyze whether the incidents of judicial decision-making
on key political issues in post Soviet regimes is comparable, on important accounts, with the
judicialization of democratic politics elsewhere and especially in developed democracies.
1. Introduction
This article reacts to academic work describing a worldwide tendency towards the
judicialization of politics.1 As one of its essential propositions, research on judicialization claims there has been substantial transfer of political power from democratically
accountable decision-makers to judges globally. Apart from evidence originating in
developed democracies, this claim relies also on cases of judicial intervention into politics in other political regimes across the world.2
The article analyzes cases of higher court involvement in “pure politics” in postSoviet countries. The main purpose of this endeavor is twofold. First, the work contributes evidence from this under-studied region to enrich the debate on judicialization
and extend its reach. Second, the article traces the nature of political interventions
* Director, Center for Constitutional Studies, Apella Institute, Yerevan, Armenia. Email: [email protected].
Torbjörn Vallinder, The Judicialization of Politics—A World-wide Phenomenon: Introduction, 15(2) Int’l Pol.
Sci. Rev. 91 (1994); The Global Expansion of Judicial Power (C. Neal Tate & Vallinder Torbjorn eds.,1995);
Martin Shapiro & Alec Stone Sweet, On Law, Politics, and Judicialization (2002); John Ferejohn, Judicializing
Politics, Politicizing Law, 65(3) Law & Contemp. Prob. 41 (2002); Ran Hirschl, The Judicialization of Megapolitics and the Rise of Political Courts, Annual Rev. Pol. Sci. 11 (2008).
2
C. Neal Tate, The Judicialization of Politics in the Philippines and Southeast Asia, 15(2) Int’l Pol. Sci. Rev.
187 (1994); Tamir Moustafa, Law Versus the State: The Judicialization of Politics in Egypt, 28(4) Law & Soc.
Inquiry 883 (2003); The Judicialization of Politics in Latin America (Rachel Sieder, Line Schjolden, & Alan
Angell, eds., 2005); Hirschl, supra note 1.
1
I•CON (2015), Vol. 13 No. 1, 200–218doi:10.1093/icon/mov003
Judicialization of politics: The post-Soviet way
201
by courts in post Soviet countries and explores whether these represent patterns of
judicialization typical to other polities. In particular, this article pays special attention
to one essential facet of judicialization—political empowerment of the judiciary- to
analyze whether the incidents of judicial decision-making on key political issues in
post Soviet regimes is comparable, on important accounts, with the judicialization of
democratic politics elsewhere and especially in developed democracies.
Despite widespread application, the term “judicialization” admittedly suffers
from the lack of a proper scholarly definition.3 Referring to the growing transfer
of decision-making powers from the political branch to the judiciary, “judicialization” has implicitly acquired both normative and descriptive connotations. The
normative perspectives on judicialization, which dominate the discourse, are in
essence associated with the debates on democratic credentials of judicial review.
Descriptively, the scholarship on judicialization has depicted the extension of judicial politics to new areas of policy-making and the spread of this tendency geographically, across the world. This said, the descriptive account has followed the
normative inquiry and has been largely placed in the context of the quest for the
legitimacy of judicial review.
Remarkably, both perspectives encounter potential controversies if treated in a local
context outside the developed world. The normative question about democratic legitimacy of judicialization in the post-Soviet region, as well as probably elsewhere in nonconsolidated democracies, runs into an illuminating paradox: while judicialization is
conventionally treated as a counter-democratic practice, in non-consolidated democracies it clearly signals success of democratization. At the same time, the descriptive
account of judicialization, which has commonly attempted to strengthen the impression of judicial empowerment as a tendency across the world, has largely failed to
assess and contrast the quality and the logic of judicialization in each of the developed
and the developing world.
This article suggests that the “theory of judicialization” should better define its own
status with respect to cases originating in political regimes in which courts do not
have necessary independence from the politicians. This gap in the academic research
is unfortunate from a number of perspectives. First, extending the blanket account of
judicialization—a tendency by courts and judges to gradually take over decision-making powers that had previously belonged to political agencies—to political regimes,
where judicial empowerment is merely formal and where courts serve as loyal agents to
the incumbents and often as a mere façade, is not simply misleading, but is ultimately
deceptive. Second, the normative account of judicialization is to some extent irrelevant
to such polities, as political decisions here do not reflect people’s choices one way or the
other. As an alternative to the strictly normative quest, the scholarship on judicialization in non-consolidated democracies would accomplish more if it concentrated on the
study of the political determinants of courts’ empowerment, and on the perspectives,
causes, and consequences of meaningful and consistent judicial involvement in politics
in respective polities.
Hirschl, supra note 1, at 99.
3
202
I•CON 13 (2015), 200–218
2. Judicialization in post-Soviet polities: empowered
disempowered courts
One important question pertaining to the definition of “judicialization” in young
democracies is whether formal judicial empowerment is a sufficient indicator of judicialization. It is necessary to ask this question if we are to attempt assessing the quality
and the status of judicialization in political environments where the law on paper significantly differs from actual practice. This distinction has not been visible in the rich
literature on the global expansion of judicial power, which has often taken for granted
the facts of formal empowerment, as well as inconsistent, single incidents of judicial
intervention into politics in non-consolidated democracies or non-democracies, in an
effort to strengthen the impression of a worldwide spread of judicialization.
Judicial politics in post-Soviet countries present an exemplary case study for the
inquiries suggested above.4 Here, the line between formal and genuine empowerment
is so salient that the failure to take it into account may essentially pervert the meaning of our statements on the judiciary’s political significance or the role of courts in
society in general. In fact, the region champions probably the most paradoxical tale of
judicial empowerment. Contrary to the widely held intuitions and theories, empowerment of constitutional tribunals, which were designated as guardians of limited
power, almost everywhere coexisted with a governance style of limitless power. In an
anecdotal way, this reality challenges Ginsburg’s famous argument that constitutionmaking politicians choose strong courts if they do not expect to stay in power for a
long time.5 It turns out, in fact, that post-Soviet leaders chose strong courts for exactly
the opposite considerations: that is, expecting that they would never give up their
power. This apparently puzzling proposition is supported by empirical evidence showing that strongly empowered judicial review emerged not only in countries which
proved to be among the least democratic in the region, but it also proliferated in the
most entrenched autocratic regimes at sub-federal level in Russia.6
As political regimes and patterns revealed themselves over time, the paradox of judicial empowerment has waned, as it seems only the students of the genesis of judicial
review still maintain interest in the matter. As far as the apparently paradoxical mismatch between formal and genuine empowerment of contemporary constitutional
courts is concerned, this reality, once puzzling, is no longer of strong interest for
students, albeit it may still be an exciting subject as a typical pattern of what can be
branded as “constitutionalism with adjectives,”7 where such adjectives as notorious as
For the purposes of this article, the term “post-Soviet region” or equivalent terms (“post-Soviet countries,” etc.) include all former republics of the Soviet Union except Lithuania, Latvia, and Estonia. These
are Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan.
5
Tom Ginsburg, Economic Analysis and the Design of Constitutional Courts, 3(1) Theoretical Inquiries in
Law 3.
6
Alexei Trochev, Less Democracy, More Courts: A Puzzle of Judicial Review in Russia, 38(3) Law & Society
Review 513 (2004).
7
In the spirit of “Democracy with Adjectives,” see David Collier & Steven Levitsky, Democracy with Adjectives:
Conceptual Innovation in Comparative Research, 49(3) World Politics 430 (1997).
4
Judicialization of politics: The post-Soviet way
203
“façade,” “pseudo,” and “sham,” are often applied to define the constitutional status
of the respective countries.8
2.1. Formal empowerment
As elsewhere in the high days of transition from the authoritarian rule, not only
did constitution-makers create separate bodies to implement constitutional review
over majority-backed decisions, but they also generously empowered the courts to
become key players in even the most partisan politics. In Russia, a constitutional
court was created in 1991, and on paper, it became the most powerful tribunal of
its kind (the First Russian Court). Its powers included both concrete and abstract
review of international agreements, laws, and presidential and governmental acts,
jurisdictional disputes, impeachment of the highest state officials, and constitutional review of suspension of political parties. The Court was famously given the
authority to review constitutional complaints—a practice known at that time only
in Germany.9 The Court also enjoyed the right to legislative initiative if it identified
gaps in the laws. Other unusual powers granted to the Court included the right to
provide binding interpretations of the Constitution and the right to launch proceedings on its own initiative. To sum up, as a Russian constitutional judge remarked,
the First Russian Court was assigned all possible responsibilities from every existing
model in a way that “the law overbuilt the institution” and that the court “could not
bear the weight of its own construction.”10
In Ukraine, a constitutional court law was adopted as early as 1992, which invested
a tribunal with “far reaching powers.”11 Although this tribunal never came into effect,
and the formation of the constitutional court (with considerably fewer powers) was
delayed until the adoption of the Constitution in 1996—a fact that speaks for itself.
Ultimately, all formerly Soviet countries created constitutional courts, except for
Turkmenistan, which, in general, quite significantly departed from standard political and institutional trajectories typical of the whole region. While the institutional
design of these courts carried major adjustments in the years to come, and nowadays
none of the post-Soviet courts are institutionally as strong as the first courts were in
the beginning of 1990s, constitutional tribunals today are still significantly empowered politically.
For a better illustration of this proposition, Table 1 below outlines the main functions of each constitutional court in the region. Abstract review is omitted, as this basic
function is implemented in each jurisdiction; albeit in Kazakhstan it is implemented
For one, see Richard Sakwa, Constitutionalism and Accountability in Contemporary Russia: The Problem of
Displaced Sovereignty, in Russia and its Constitution: Promise and Political Reality 1 (Gordon Smith & Robert
Sharlet eds., 2007).
9
Klaus von Beyme, The Russian Constitutional Court in an Uneasy Triangle Between the President, Parliament
and Regions, in Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in
Post-Communist Europe in a Comparative Perspective 309, 314 (Wojciech Sadurski ed., 2002).
10
Quoted in Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe 116 (2000).
11
Kataryna Wolczuk, The Constitutional Court of Ukraine: The Politics of Survival, in Constitutional Justice,
supra note 9, 327, at 329.
8
204
I•CON 13 (2015), 200–218
only prior to the promulgation of laws by the president, in a French-style ex ante
fashion.12
To a student of comparative judicial review, as well as to those with a basic knowledge of the US-centered constitutional theory, Table 1 should confirm the fact of judiciaries’ political empowerment. Besides the function of abstract judicial review, which
is the key feature of constitutional courts of continental type, post-Soviet courts possess functions that are not only “marginal” in light of the main designation of such
courts, but that are fundamentally political in many respects.13 For example, constitutional courts in Azerbaijan, Georgia, Russia, and Tajikistan can review jurisdictional
disputes between the branches of the government, thus involving courts in political conflicts. Impeachments are part of the responsibilities of constitutional courts
in Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, and
Ukraine. Constitutional courts in Armenia, Georgia, and Moldova can decide on constitutionality of political parties. Electoral disputes and disputes on the results of referenda are part of the responsibilities of constitutional courts in Armenia (presidential
and parliamentary elections and referenda), Azerbaijan (presidential and parliamentary elections), Georgia (elections and referenda), Kazakhstan (presidential and parliamentary elections and referenda), Kyrgyzstan (presidential elections), and Moldova
(presidential and parliamentary elections and referenda); in all other countries of the
region, major electoral disputes are adjudicated by general high courts.
If formal empowerment is taken as an indicator of judicialization, to some, these
functions would make the respective jurisdictions home to judicialization by default.14
Moreover, some of the typical functions of post-Soviet courts would probably qualify
in the US as political by definition, according to the existing judge-made doctrine.15
Finally, judicialization of politics can be said to be institutionally prescribed in these
jurisdictions simply due to the fact that these constitutional systems lack any reasonable notion of judicial restraint, not to mention a US-style political questions doctrine.
By way of example, the Russian Constitutional Court could not, under any condition, excuse itself from reviewing the constitutionality of the military operation in
Chechnya, given that a valid request had been filed. Similarly, the Constitutional Court
of Ukraine had no valid ground to abstain from making a decision on the dissolution
of the Parliament by the President in 2006, and therefore its conscious abstention
from making a decision in that critical political moment plainly constituted a breach
of its legal obligation and seriously damaged its reputation.16
Table 1 presents the institutional settings of the Kyrgyz Constitutional Court as until 2010. In 2010 the
Court was abolished by the interim government. Although the function of constitutional review was
reintroduced in a separate chamber of the Supreme Court, the new institutional design of judicial review
is by now under construction.
13
Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central
and Eastern Europe 13 (2005).
14
Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of
the Supreme Court (1980); Hirschl, supra note 1.
15
Nixon v. United States 506 U.S. 224 (1993) and Baker v. Carr 369 U.S. 186 (1962).
16
See Armen Mazmanyan, Should Constitutional Courts Adjudicate Political Disputes? The Perspectives of
Democratization in Soviet Successor States, 34(1) Rev. Central & E. Eur. L. 71 (2009).
12
Lower court
referrals
yes, since 2005
b
a
no
no
no
no
no
yes
yes
no
yes
no
yes
yes, since
2008
no
no
no
yes
no
no
no
yes
yes
no
no
no
no
no
no
no
no
no
yes, both
yes, both
no
no
yes, only Const.
yes, only Const.
yes, only Const.
yes, only
Const.
no
no
yes, both
Self-initiating Legislative Constitutional
cases
initiative and statutory
interpretat.
yes, since
2004
yes, since
2005
no
Individual
complaint
nob
no
no
no
yesa
no
no
no
no
no
no
yes
no
no
yes
yes
yes
no
no
no
yes
no
no
yes
yes
yes
yes
no
yes
yes
yes
yes
yes
yes
no
no
yes
yes
yes
yes
yes
yes
yes
yes
no
no
no
yes
yes
yes
yes
no
no
yes
yes
no
no
no
yes
no
no
yes
no
no
yes
no
no
no
yes
yes
no
no
no
no
no
no
no
Ex-ante Review
Jurisdiction Impeachment Electoral Political parties Actio
review international disputes
disputes
popularis
agreements
The Constitutional Council of Kazakhstan reviews the laws passed by the Parliament but before they are promulgated by the President.
Only the laws envisaging constitutional amendments are subject to ex-ante review.
Ukraine
no
Uzbekistan no
no, only Sup.
Ct and Sup.
Econ. Ct.
Georgia
yes
Kazakhstan yes
Kyrgyzstan yes
Moldova
no, only Sup. Ct.
Russia
no, only Sup.
Court and
Sup. Ct. of
Arbitration
Tajikistan yes
Belarus
Armenia
Azerbaijan yes
Country
Table 1. Institutional settings of constitutional courts in post-Soviet countries
Judicialization of politics: The post-Soviet way
205
206
I•CON 13 (2015), 200–218
2.2. Disempowerment: political attack and judicial incapacitation
Despite the generous empowerment of constitutional courts, the executives’ attacks
on them from the early 1990s have left little optimism for independent judicial review
until now. As the fashion of any political development in the formerly Soviet area was
dictated by Russia, so was the fashion of political responses to the aspiring judicial
power. The Constitutional Court in Russia was suspended by President Yeltsin in 1993
after it had sided with the Parliament in its decisive confrontation with the President.17
This move set the pattern for how post-Soviet leaders would treat constitutional tribunals if these proved to be too troublesome. The Constitutional Court in Kazakhstan,
which repeatedly dared to decide against the will of the incumbent, was taken out of
the Constitution by President Nazarbayev in 1995.18 The substitute institution, which
has been formally on the scene ever since, is a much weaker body called Constitutional
Council. In Belarus, Lukashenka forced the resignation of justices starting in 1996, at
which time the Constitutional Court had been actively involved in striking down antidemocratic legislation promoted by the President.19 The new judges remained loyal
to Lukashenka despite the infamous record of dictatorial governance in the country.
Lastly, the Kyrgyz interim government suspended the country’s Constitutional Court
in 2010, accusing it of supporting the ousted president after the latter had been forced
out by a wave of popular protests.20 Although constitutional adjudication has been
reinstated in the new Kyrgyz Constitution and embodied in a separate chamber of
the Supreme Court, the constitutional adjudicator had been incapacitated for more
than three years and had probably suffered a major blow as an independent and
confident body.
The significance of these attacks on the courts for the constitutional culture in the
region is hard to underestimate. After all, these were the biggest, most emblematic and
most grotesque cases. In all other states politicians did not need to show the whole
might of their power in the manner of their Russian, Kazakh, Belarusian, or Kyrgyz
colleagues, though they would not hesitate if necessary. As of now, none of the postSoviet constitutional courts has emerged as an independent tribunal. The courts in
Central Asian states of Kazakhstan, Tajikistan, Uzbekistan, as well as in Azerbaijan
and Belarus, are plainly façade institutions, largely serving as image-makers for the
quasi-sultanistic political regimes. Other courts, in Armenia, Georgia, Kyrgyzstan,
Moldova, Ukraine, and Russia, are more vigorous, to varying degrees, but are subject
to serious constraints from the dominant political power. While the determinants of
vigorousness are multiple, the main variable is the degree of political freedom and the
scale of political competition in a country.
Although the following assumption is hardly pioneering, it is highly illuminating:
the degree of judicial independence and hence the degree of effective judicialization
For the details, see Robert Sharlet, The Russian Constitutional Court: The First Term, 9 Post-Soviet Affairs
1 (1993); Robert Ahdieh, Russia’s Constitutional Revolution: Legal Consciousness and the Transition to
Democracy 1985–1996 (1997); Schwartz, supra note 10.
18
Schwartz, supra note 10.
19
Id. at 226.
20
Kathleen Collins, Kyrgyzstan’s Latest Revolution, 22(3) J. Democracy 150 (2011).
17
Judicialization of politics: The post-Soviet way
207
is proportional to the degree of democratic development in a country. By now, not
any of the states under our review has emerged as a consolidated democracy. The
political regimes in the post-Soviet area range from fragile democracies to outright
authoritarian states. According to Freedom House, none of the states in the region
currently qualifies as a free country. Only five countries among the twelve are ranked
as partially free: Ukraine, Moldova, Georgia, Armenia, and Kyrgyzstan; the other
states, including Russia, are non-free countries.21 In its “Nations in Transit” Report,
Freedom House ranks Ukraine, Moldova, and Georgia as hybrid regimes, and Armenia
and Kyrgyzstan as semi-consolidated authoritarian regimes. Russia, together with
Kazakhstan, Uzbekistan, Tajikistan, and Turkmenistan, is ranked among consolidated
authoritarian regimes.
3. Assessing post-Soviet courts in pure politics
The state of independence of post-Soviet courts and their institutional memory of
political attacks, as described in the previous section, has predetermined the distinctive mode in which these courts afford to involve in politics. The courts’ access to politically sensitive decision-making is limited strictly to those questions that are not vital to
dominant political interests.22
“Pure politics” or “mega-politics” is defined by Hirschl as core political controversies
that define and often divide polities and should therefore be free from judicial decision-making.23 Hirschl includes several categories of cases under this term: electoral
processes, executive prerogatives of macroeconomic planning or national security
issues, fundamental restorative justice issues, as well as formative collective identity
and nation-building processes.24 As highlighted in the previous section, judicial intervention in these areas is not discouraged in formerly Soviet countries, but, on the contrary, is often directly prescribed by the law. In practice, post-Soviet courts have not
hesitated to make decisions which belong to the realm of pure politics, as described
above. The irony, though, is that such “political” activity of post-Soviet courts rarely
implies any consistent empowerment of the courts.
In fact, the field for judicialization of post-Soviet “pure politics” is extremely thin.
The record of judicial involvement in post-Soviet politics shows that higher courts get
meaningfully activated only in situations witnessing a true political competition and
uncertainty about the winner in the competition.25 This leads to the first observation
of judicial involvement in power politics in these polities: judicial decision-making
Freedom House, Map of Freedom (2013), available at http://www.freedomhouse.org/sites/default/files/
Map%20of%20Freedom%202013%2C%20final.pdf.
22
Lee Epstein, Jack Knight, and Olga Shvetsova, The Role of Constitutional Courts in the Establishment and
Maintenance of Democratic Systems of Government, 35 Law & Soc’y Rev. 164 (2001).
23
Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75(2) Fordham
L. Rev. 721, 721 (2006).
24
Id.
25
Armen Mazmanyan, Constrained, Pragmatic, Pro-democratic: Appraising Constitutional Review Courts in
Post-Soviet Politics, 43(4) Communist & Post-Communist Stud. 409 (2010).
21
208
I•CON 13 (2015), 200–218
on essential political issues is incidental. The incidents of such decision-making, to
review, are predominantly limited to situations of political competitiveness which are
extremely rare in the political regimes of the region. Except for the mentioned situations, courts make politically important decisions also in another situation: as agents
of politicians who exploit the courts for different strategic purposes. This leads into the
second observation on “judicialization of pure politics” in the former Soviet area: judicial intervention in politics is more often than not a product of direct political instruction or manipulation. The concluding observation on post-Soviet “juducialization” is
follows from the above two: occasional judicial review of politically significant matters, most of which amount to instances of uncovered political exploitation, cannot
testify for any meaningful transfer of power from the politicians to judges. In effect,
this conclusion may challenge any claims of meaningful judicial empowerment in
these countries.
A brief survey of the most significant and noteworthy examples, both old and new,
of judicial politics in the post-Soviet zone can better illustrate the above-described
limits on judicial action in politically sensitive cases. Except for the golden age of the
Russian Constitutional Court’s famous activism of 1991–1993, when Russia’s constitutional judiciary unusually enjoyed significant independence and popularity, the
history of constitutional jurisprudence in the entire post-Soviet region provides few,
if any, cases of deviation from the patterns of the judiciary’s empowerment depicted
above. In other words, all cases examined clearly confirm political partisanship, affiliation, or manipulation behind each and every instance of apparently brave judicial
decision-making in politically sensitive situations. Those cases that do not are decided
in exceptional and very rare situations of clear or explicit uncertainty about the outcome of an emerging fight for political power. Any of these categories plainly confirm
that the judiciary’s political empowerment is more likely than not a false impression:
in reality, it is a substitute or a deceptive cover for direct political action by the dominant power-holder, or is clearly incidental and rare to an extent that it cannot be taken
as a true pattern of judicialization.
3.1. Judicialization during political turbulence
Although political culture across the world varies and it predetermines considerably
those forms that the power structures take in individual countries and regions, the
pattern of relationship between the judiciary and the political leadership in a country
is apparently of a universal nature. This pattern was accurately described by Robert
Dahl in a seminal article reflecting on the US Supreme Court:
Except for short-lived transitional periods when the old alliance is disintegrating and the new
one is struggling to take control of political institutions, the Supreme Court is inevitably a part
of the dominant national alliance. As an element in the political leadership of the dominant
alliance, the Court of course supports the major policies of the alliance. By itself, the Court is
almost powerless to affect the course of national policy.26
Robert A. Dahl, Decision-making in a Democracy: The Supreme Court as a National Policy-maker, 6 J. Pub. L.
279, 279 (1957).
26
Judicialization of politics: The post-Soviet way
209
In the preceding sections, we saw that post-Soviet high courts are part of the dominant political alliance in their countries, in the most prosaic sense of what the alliance
of politicians and the courts implies. We also saw what the courts can expect if they
try not to be part of the dominant alliance and why the courts have no alternative
other than to play the politicians’ game. In such an environment, judicial defiance
and meaningful judicial review are possible only when the incumbent alliance faces a
realistic challenge during what Dahl calls “transitional periods.”
As evidenced by a number of the world’s non-democracies, where judicial independence and political activism are not the usual practice, from Pakistan and Egypt to
Kyrgyzstan and Ukraine, judicial independence, as well as activism, is rising proportionately to the rise in the level of political competition in the country. Based on an
assessment of judicial behavior during times of political turbulence, the behavior of
post-Soviet courts in situations of relatively tense competitiveness is predicted to be
strategic and the decisions are predicted to be flexible: courts are likely to endorse the
expected winner in the political competition, but strive to be cooperative with the other
party, too.27 Such a diplomatic attitude of the courts is associated with judicial activism in the most trivial sense of the term. In situations of complete uncertainty about
who will be the winner in the power game, judicial empowerment is unprecedentedly high. Considering that post-Soviet courts often have a constitutionally prescribed
obligation to decide on cases determining the outcome of power games (electoral or
jurisdictional disputes, impeachments, etc.), one should say that situations of high
instability are by default associated with judicial activism and judicialization.28
All this said, the reader must be reminded that situations of political instability and
political competition, which, as argued, activate and empower courts, are not common to formerly Soviet political environments. The most concentrated regimes in the
region, including the Central Asian autocracies, as well as Azerbaijan, Belarus, and to
a large extent also Russia, have never witnessed any reasonable uncertainty about the
outcome of power politics since the mid-1990s, albeit Kyrgyzstan started to deviate
from this pattern in 2005. In the group of states with relatively freer regimes—Ukraine,
Moldova, Georgia, Armenia, and post-2005 Kyrgyzstan—the competition for political
power is no longer implausible, as all of these states have witnessed a form of pluralistic politics since the beginning of the previous decade. Here, in this group of countries,
Mazmanyan, supra note 27.
This said, instability and uncertainty about political developments are necessary, but not sufficient precondition for higher courts political activism. For one, activism has more chances to thrive in a constitutional, rather than a general court. The evidence, for example, shows that wherever electoral disputes are
assigned to general courts (e.g., Russia), such disputes are decided in a predominantly legalistic fashion,
with the letter of law prevailing over its spirit (see Armen Mazmanyan, Failing Constitutionalism: From
Political Legalism to Defective Empowerment, 1(2) Global Constitutionalism 313 (2012)). Meanwhile, in
some countries (e.g., Georgia, Moldova), courts are rarely called to resolve political conflicts even if such
conflicts can be referred to them by the law. While this may well be due to the fact that political tensions
there have not often been a result of strongly contested, unconstitutional actions, such as rigged elections
(post-2003 Georgia, as well as Moldova have witnessed no significant cases of contested elections), one
can also assume that judicial review of politically sensitive conflicts has not become a prevalent pattern
where a relatively strong tradition has developed of conflict resolution through dialogue and political
compromise between antagonist parties.
27
28
210
I•CON 13 (2015), 200–218
the emergence of sound political contests and hence of uncertainty about the winners in those contests, has varied from country to country, with Ukraine, Moldova,
and Kyrgyzstan witnessing some long-lasting periods of political turbulence and often
splits in the governing elites. Yet, meaningful and stable competition between political adversaries is rather limited even in this group of countries as consolidation and
illegitimate reproduction of power were never uprooted from the political cultures. As
the emerging power elites do not, as a rule, abandon the practice of keeping their grip
on the judiciary, judicial empowerment emerges as a temporary, often one-off act, in
exceptional situations when the old ruling elite has disintegrated while the new one is
not consolidated enough to assure effective control over the judiciary.29
The cases under this rubric, then, are very few. Yet they are among the most illustrative and famous court cases in the region. In 2003, the Constitutional Court of
Armenia, faced with reviewing the results of presidential elections, pronounced a
judgment which has probably become an exemplar of judicial activism by a postSoviet court. Earlier that year, the second round of presidential election between the
incumbent president and the opposition nominee resulted in the former getting the
support of 67 percent of voters, according to the official results. The opponent alleged
widespread violations during the elections. At a time when there was a fair degree
of certainty that the incumbent would preserve his power and, at the same time, in
the midst of a spontaneous, unpredictable protest bringing thousands to the streets to
complain about the disputed elections, the Court offered an unprecedented extralegal
and clearly politicized solution to the political crisis: to hold a referendum of confidence—
a reconciliation mechanism nowhere mentioned in the law—with a view to restoring
peace and harmony to society. Characterized by many remarkable attributes, including creative reasoning with plain law-making ambition and diplomatic intuition, this
judgment of the Armenian Court perfectly represents what was described above as an
elastic decision and an opportunistic attitude by a court striving to please both parties
to a conflict.
In similar circumstances, witnessing post-electoral turbulence, this time at a
moment of a very high degree of uncertainty about the winner in the 2004 presidential election, the Supreme Court of Ukraine ordered a second round of elections,
having found that the widespread electoral violation gave no chance for an accurate
recount. The Court’s decision marked the decisive point in what is widely known as
the “Orange revolution,” a nationwide eruption of popular protests in the immediate
aftermath of the run-off vote in a contest between the nominee of the incumbent,
an old-fashioned elite, acting Prime Minister Viktor Yanukovich, and the leader of
the enthused and united pro-western opposition, Viktor Yushchenko. Following the
second round, the opposition candidate for the presidency was proclaimed winner:
Sometimes, long-standing uncertainty and failure of a competing group to capture critical mass of political influence brings to an adverse result by hibernating rather than activating courts as political decisionmakers. This was clearly the case in Ukraine when, in 2006, in the result of long-standing confrontation
between government-sharing parties, one holding the presidency and the other holding the majority in
the Parliament, the Ukrainian Constitutional Court chose to unlawfully abstain from making a decision
on the legitimacy of a presidential decree dissolving the Parliament: Mazmanyan, supra note 18.
29
Judicialization of politics: The post-Soviet way
211
the first and only time in a post-Soviet country that the opposition took the presidential office in an election. The decision, called a “landmark decision coming out of any
judiciary in the former Soviet Union in the last thirteen years”30 and compared with
Marbury by a senior federal judge in the US,31 has been since the only case in the region
when the outcome of national elections was decided by a court, even though review
of election results is among the responsibilities of courts in all post-Soviet countries.
Ultimately, the other noteworthy episode of higher court involvement in mega-politics during situations of political instability also took place in the midst of an electoral crisis. In September 2007, the Constitutional Court of Kyrgyzstan—i.e. of the
only state in Central Asia which ever advanced from a status of a non-free country—
ruled that the constitutional reforms adopted during the severe political turmoil in
the months of November and December of 2006 were null and void. The decision
reflected the ongoing stand-off between the country’s Parliament, the newly elected
President, and the fragmented political establishment in the aftermath of a civic
uprising, the “revolution of Tulips,” which was brought about by years of corrupt
governance, stagnation, and poverty, and which forced the former President to flee the
country.32 In November 2006, the Parliament’s majority had voted for constitutional
amendments, which considerably shifted the country’s form of governance towards
a parliamentary system. This would heavily impact on the new President’s ability
to strengthen his position as he struggled to consolidate his power in a divided and
highly unstable political situation. However, within only a month, the President had
made considerable progress in obtaining significant support, and, in December, the
Parliament adopted some new changes, somewhat restoring the presidential prerogatives.33 While the tense political standoff went through yet another revival in 2007,
the Constitutional Court unexpectedly decided to invalidate the 2006 reform, restoring the constitutional status quo existing prior to the “Tulips.” The Court, motivated
by the fundamental procedural requirement that constitutional changes shall be
made only by a referendum, found that the Parliament exceeded its authority.34
3.2. Judicialization as a product of political instruction and
manipulation
Ran Hirschl notes that neither a favorable constitutional framework nor judicial activism is a sufficient condition for judicialization, and that the latter is more likely a product of tacit or explicit support for politicians.35 The patterns of judicial politics in the
Mark MacKinon, The New Cold War: Revolutions, Rigged Elections, and Pipeline Politics in the Former Soviet
Union 204, 205 (2007).
31
Bohdan Futey, Legal Analysis: Ukraine’s Supreme Court Decision, Ukrainian Weekly (Dec. 12, 2004) 50.
32
For more details, see Scott Radnitz, What Really Happened in Kyrgyzstan, 17 J. Democracy 132 (2006);
Edward Schatz, The Soft Authoritarian “Tool Kit”: Agenda-Setting Power in Kazakhstan and Kyrgyzstan, 41(2)
Comp. Pol. 203 (2009).
33
Henry Hale, Formal Constitutions in Informal Politics, 63(4) World Politics 581 (2011).
34
Further on constitutional development in Kyrgyzstan, see Anita Sengupta, 3 Colour Revolutions and
Constitutionalism: The Case of Kyrgyzstan, in 3 Politics, Identity and Education in Central Asia: Post-Soviet
Kyrgyzstan 52 (Pinar Akçali & Cennet Engin-Demir eds., 2013).
35
Hirschl, supra note 25, at 744.
30
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I•CON 13 (2015), 200–218
former Soviet space perfectly confirm this proposition. As is apparently the case all
over the world, political players may have a number of incentives to delegate decisionmaking on certain issues to courts. The incentives vary from willingness to shift or
spread responsibility, to the intention to mislead domestic opponents or external counterparts. Using their status as the de facto masters of the judiciary, the post-Soviet
ruling elites do not simply refer to the courts or tacitly support them in making politically significant decisions; very often, they blatantly manipulate the judiciary for their
openly partisan purposes.
The choice of methods to influence the courts depends on the significance of the
political stakes involved in the given case, the overall reputation of the court in the society, as well as the general patterns of political culture in the given polity. Considering
the historic use of coercion techniques against courts,36 it is fair to say that whenever
the judiciary is expected to determine the outcome of political competition for power
or intervene in the area of vital interests of the power holders, it is not only by soft
power that politicians may be ready to guarantee their best possible outcomes. This
said, since the era of the hardliner attacks on courts in the 1990s, politicians have
learned techniques of soft dominance, while the judges have learned survival strategies and techniques of diplomatic interaction with the incumbents. As a result, the
interaction between the ruling political groups and the courts in the former Soviet
republics have come to better resemble the partnership alliance which Robert Dahl
famously demonstrated to be present between the Supreme Court and the dominating
political group in the United States.37
Russia is probably the most illustrative case in point. Russia’s Constitutional
Court, even in its post-1993 incarnation, is probably the most politicized court in
the world. In its short history, this Court has appeared in the headlines of world news
numerous times: the decisions legitimizing the war in Chechnya, barring President
Yeltsin from standing for his third term, and endorsing Putin’s reform eliminating
the elections of governors being the most visible ones among them. With all this in
mind, judicial empowerment in Russia is clearly controlled from above and is limited to very specific contexts. Famously labeled the “fifth wheel of the carriage of the
Russian autocracy,”38 the Russian Constitutional Court has been barely visible in any
action that would strongly upset the incumbent political leadership, even though the
Court appears to be rather active, if not activist, in rights-adjudication, and often,
as described above, in making decisions that do not belong to the judiciary’s mandate as per the mainstream democratic theory. In this light, taking the examples of
judicial involvement in politics as patterns of a true transfer of power from the politicians to the courts, at least as far as pure politics is concerned, would sound as a bold
exaggeration.
These instruments have ranged from banal trade off with courts’ and judges’ logistics and remuneration,
removal of judges from office and manipulation of procedural law for their persecution, and to threats to
personal and physical well-being, as well as physical abuse per se. To get an idea of how such instruments
have been used in just one country, Ukraine, see Alexei Trochev, Meddling with Justice: Competitive Politics,
Impunity, and Distrusted Courts in Post-orange Ukraine, 18(2) Demokratizatsiya 122 (2010).
37
Dahl, supra note 28.
38
Schwartz, supra note 10, at 162.
36
Judicialization of politics: The post-Soviet way
213
The prominence of a few cases should not mislead students of judicialization. The
famous, or infamous, Chechnya case of 1995,39 where the Constitutional Court of the
Russian Federation upheld the constitutionality of the federal military invasion of the
rebel region, may be a good example of judicialization in formal terms, while it obviously cannot offer any evidence of meaningful judicial empowerment. The fact that
the pronounced position of the Court strictly coincided with that of the executive is a
strong indication of a pact between the Court and the Kremlin. Yet, even without such
evidence, no one could truly expect that the recently reopened constitutional court,
which undoubtedly had to cope with finding a new post-traumatic identity after its
predecessor had been shut down by the reigning President only months earlier, would
defy Yeltsin in what was the most important political issue that the country had faced.
Similarly, the widely discussed 1999 decision of the Russian Constitutional Court barring Yeltsin from running for his third consecutive term, hardly represents a vocal pattern of judicial empowerment, even though a distant observer could well be tricked by
the appearance of a daring resistance by the Court to the Kremlin’s pressure. In the
late 1990s, as Yeltsin’s second term was approaching completion, there circulated talk
of the constitutionality of Yeltsin’s third term. Russia’s 1993 Constitution allowed the
president only two terms in office; and while Yeltsin was serving his second effective
term, some believed that he might run again, since he first took office in 1991, before
the Constitution was adopted. In fact, Yeltsin’s third term was never seen as a realistic
option, and the talk about it was obviously calculated as a tactical trick to manipulate
the shaky political landscape. Made at a time when Yeltsin’s health was far too fragile
for him to run the country, and when Yeltsin himself had announced he would not
seek another term, the Court’s decision cannot be reasonably seen as anything but a
move either agreed upon with the Kremlin or clearly calculated not counter the latter’s preferences. The President’s rather easy and tolerant reaction to the decision, as
well as his resignation from the country’s top position only months after the court
ruling, support this conclusion.
As an unfading symbol of judicial activism, the Russian Court’s President Valery
Zorkin, famous for his opposition to the late President Yeltsin in the years of political turbulence in the mid-1990s, now stands as a stark symbol of the tacit alliance
between the Court and the presidency. Brought back as chief justice by Vladimir Putin
in 2003, the activist judge did not hesitate to make statements of an openly political
nature, for which he garnered criticism and an unfavorable reputation in the early
1990s.40 In a series of articles written in the wake of Russia’s emerging protest movement in 2011, Justice Zorkin embarked on a fundamental review of both global and
domestic politics, embracing in his review such distant phenomena as the political
Paola Gaeta, The Armed Conflict in Chechnya before the Russian Constitutional Court, 7 Eur. J. Int’l L. 563,
563 (1996).
40
Consider, for example, such illuminating evidence as numerous cases of Zorkin’s public appearance on
television during the First Court, when he often spoke with political assessments. In 1993, Zorkin was
personally involved in the political controversy between the President and the Parliament in the unusual
capacity of a political mediator. Last but not least: after his resignation in 1996 Zorkin ran for the post of
the President of the Russian Federation. For details, see Ahdieh, supra note 18, and Schwartz, supra note
10.
39
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I•CON 13 (2015), 200–218
turmoil in Libya, Russia’s global role, and its domestic situation. As a result, hinting
at only some remote relevance to constitutional adjudication, the chief constitutional judge concluded that the Russian opposition “has no extralegal right to revolution” and that “the protest movement threatened to throw Russia back into national
catastrophe.”41
Notably, Zorkin’s statist vision of both international and domestic politics “mystically” aligns with the positions voiced by incumbent leaders of the country, be they
Putin or Medvedev. In fact, the strong alliance between the Constitutional Court, personified by Zorkin, and post-Yeltsin presidency, is no longer a secret. It seems that the
latest leaders of the country have found not only a loyal ally, but a principled ideological mate in the Constitutional Court.42 This alliance has produced an extraordinarily
wide margin of tolerance of the Constitutional Court’s freedom of action in light of
the general post-Soviet “standards.” Surprisingly to some, this Court possesses substantial freedom on a wide range of issues outside the vital interests of the top leadership, and enjoys considerable reputation both among the members of the government
and in the society at large, and is ultimately very persistent as a rights-adjudicator,
albeit its vision of rights also often mirrors the dominant statist position.43
Interestingly, however, the Russian Court’s statist stance has always prevailed over
its rights protection instincts in all cases where the integrity and the neo-imperial dignity of the country was concerned, even in the years preceding the first serious attack
on the Court’s independence. The Chechnya case being the most prominent example of
politically sensitive interventions by the Court, at least as far as Russia’s federal dimension and territorial integrity are concerned, not many know of an earlier decision in
which the First Court unambiguously denied Tatarstan’s referendum of sovereignty
in the years when the federal capital had yet to consolidate legitimacy and power visà-vis some dissenting republics within its borders.44 Endorsement of Vladimir Putin’s
anti-federalist agenda in the beginning of the 2000s is another example of this.45
In 2005, Russia’s Constitutional Court faced a decision on perhaps one of the most
controversial issues under Putin’s administration: the elimination of the elections of
regional governors. Putin’s project was challenged before the Constitutional Court by
an individual petitioner, and in December 2005 the Court decided46 that the new rules
were in conformity with the Constitution, thus overturning its own 1996 precedent
by which the Court had upheld the principle of regional elections.47
William Parlett, Valery Zorkin’s State and Revolution, Brookings (Feb. 13, 2012), available at http://www.
brookings.edu/research/opinions/2012/02/13-russia-zorkin-partlett">http://www.brookings.edu/
research/opinions/2012/02/13-russia-zorkin-partlett.
42
Russia after 2012: From Putin to Medvedev to Putin—Continuity, Change, or Revolution? (Joseph Laurence
Black & Michael Johns eds., 2013).
43
This was especially evident in the Court’s reaction to the decision of the European Court of Human
Rights in Konstantin Markin v. Russia, App. No. 30078/06 [2010] ECHR 1435 (Oct. 7, 2010).
44
See Schwartz, supra note 10.
45
Cameron Ross, Putin’s Federal Reforms and the Consolidation of Federalism in Russia: One Step Forward, Two
Steps Back!, 36(1) Communist & Post-Communist Stud. 29 (2003).
46
See Decision No. 13-П, Constitutional Court of the Russian Federation, Dec. 21, 2005.
47
See Decision No. 2-П, Constitutional Court of the Russian Federation, Jan. 18, 1996.
41
Judicialization of politics: The post-Soviet way
215
The patterns of judicialization emerging from the alliance between the dominant
power and the courts, such as described above, are discernable in other contexts.
In 2010, the Constitutional Court of Ukraine, which was only recently “upgraded”
by new, pro-presidential judges, invalidated the constitutional amendments made
after the “Orange revolution” of 2004, thus making the pre-2004 version of the
Constitution effective once again. Although the legal grounds for questioning the
constitutional reform of 2004 were convincing (back in 2004, the constitutional
reform was passed with obvious violation of the prescribed procedures), the judicial
verdict to invalidate what had been the country’s effective constitution for the past five
years—in essence, implementing a constitutional reform without a democratic mandate—was nothing short of a “juridical coup d’état.”48 After all, the partisan nature of
the Court’s 2010 decision was doubted only by the naïve. Reintroducing the earlier
version of the Constitution, the decision effectively strengthened the newly elected
President, Viktor Yanukovich, and curtailed the Parliament’s influence on the executive. President Yanukovich was then able to consolidate his influence and reinstate
the super-presidential governance which had characterized the country up until the
political reform following the 2004 revolution.49
As another illustration of the pattern, the Constitutional Court of Armenia held
the controversial diplomatic accord of 2009 on Armenian-Turkish reconciliation to
be subject to a series of preconditions which were not so much based on the country’s
constitution as a legal document as were inspired by the unwritten, “moral constitution” of a nation that lived the sensitive historical issue through a century of emotional suffering and trauma. The decision of the Court is striking by its extra-legal,
political ambition. Relying on its open reading of the constitutional preamble, in the
tradition of the French Conseil Constitutionel’s landmark 1971 decision, the Court
found, in an abstract, preventive fashion, that the protocols on reconciliation cannot
be interpreted in contradiction with the Declaration of Independence of the Republic
of Armenia which contained references to international recognition of the 1915
genocide. Despite the “exemplary” activism demonstrated by the Court, the case is
anything but an example of judicial daring. In fact, the Court’s veto is widely believed
to have been not only in the best interests of the country’s political leadership which
initiated the rapprochement process with the enthusiastic support of the international community, but to have been also made under strong pressure from domestic
groups and the powerful Armenian diaspora. The veto is indeed believed to have been
directly engineered by government policy-makers as an exit strategy in case the events
did not unfold in the most desired direction.
Finally, a slightly different yet very illustrative case of political alignment between the
ruling power and the Court behind an apparently bold manifestation of judicial defiance can be found in the 2011 decision of the Constitutional Council of Kazakhstan,
rejecting the proposal on extending President Nazarbayev’s term without elections.
Alec Stone Sweet, The Juridical coup d’état and the Problem of Authority, 8(10) German L.J.: Special Issue on
Stone Sweet 915 (2007).
49
John T. Ishiyama & Ryan Kennedy, Superpresidentialism and Political Party Development in Russia, Ukraine,
Armenia and Kyrgyzstan, 53(8) Europe-Asia Stud. 1177 (2001).
48
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I•CON 13 (2015), 200–218
The proposal, put forward by a public initiative, reportedly supported by millions of
citizens, was aimed at bypassing two consecutive presidential elections in order to
endorse Nursultan Nazarbayev, the country’s leader since its independence, as president until 2020.50 Apparently a strong indication of judicial defiance, this case has in
fact earned little credit, if any. To anyone with basic knowledge of the political environment in Kazakhstan, judicial defiance against the plans of the President would be
unthinkable. The Constitutional Council’s objection to holding a referendum extending presidential power was widely acknowledged to be a cleverly calculated scam
aimed at a certain audience. The political rationale behind this act was most likely in
testing the reactions of the international community on the viability of the referendum. The fact is that the reaction of the international players, particularly the US, the
EU, and the Organization for the Security and Cooperation in Europe, mattered highly
for Kazakhstan which strived hard to improve its international standing as a progressive democratic nation. Indeed, attracting the criticism of these players based on democratic performance and human rights record would be degrading for a country that
prided itself on holding the highly publicized chairmanship of the Organization for
Security and Cooperation in Europe only a year earlier.51
It is obvious that the constitutional adjudicator’s veto on the referendum might
have killed two birds with one stone: the notorious referendum which had by then
attracted plenty of criticism from Kazakhstan’s foreign partners was put aside, saving Nazarbayev’s legitimacy; and at the same time, publicity was created to present
the judicial system as functioning efficiently in order to enhance the country’s image.
The analysis of the events following the Council’s decision may confirm this widely
shared hypothesis. The fact is that the President, who is notoriously empowered by the
Constitution to veto the Constitutional Council’s judgments, did not use this power,
saying that he would remain faithful to democratic principles and respect the pronouncement of the Council. Shortly thereafter, early presidential elections were called
in which Nazarbayev received over 90 percent of the votes.
Obviously, political pacts between the ruling power and courts do not imply alliances based on parity and equal input, but are marked by the dominance of the former over the latter. In essence, such alliances reflect judicial dependence and are the
ultimate result of the natural instincts of courts which see the key to their survival
and institutional standing in conforming with the dominant power group rather than
confronting it.
However, not all courts in post-Soviet states enjoy even this status. To start, no postSoviet judiciary enjoys the privilege of sharing even the formal burden of decisionmaking in mega-politics. The Russian-style reliance on soft power and the practice of
tacit alliance between the judiciary and the executive, which by and large precludes
manifestations of straightforward manipulation and harassment of the judiciary, may
not be so obvious in other polities. None of the political regimes have proved tolerant
Yury Fedorov, Kazakhstan: Looming Instability?, 18(1) Security Index: A Russian J. Int’l Security 59 (2012).
Vladimir D. Shkolnikov, The 2010 OSCE Kazakhstan Chairmanship: Carrot Devoured, Results Missing,
EUCAM Policy Brief No. 15 (Apr. 2011).
50
51
Judicialization of politics: The post-Soviet way
217
to the sheer presence of the judiciary among the main decision-making agencies. The
autocratic governors in the most concentrated regimes have never needed to fake their
openly autocratic practices, so that situations would emerge in which courts may play
a role as political actors. Indeed, situations of instability, in which constitutional and
other higher courts would be observed to acquire a certain degree of independence,
and occasionally proclaim politically bold judgments, have never emerged in the postSoviet countries in which the incumbent leaders (or their families, as in the case of
Azerbaijan) have reigned since the early 1990s, and in which façade elections have
rarely produced any scores for these leaders lower than the 90 percent of the votes of
their constituencies.
At the same time, the incentives which make the leaders in other countries activate
their courts for the purposes of creating an illusion of an independent judiciary, are
rarely present in either the quasi-sultanistic regimes of Central Asia and Azerbaijan or
the completely autocratic regime of Lukashenka in Belarus, where the consecration
of the autocratic ruler is so important for the standing of the regime that not even a
constitutionally proclaimed court can be tolerated as a dissenter. However, some evidence can be submitted to show just the opposite: that these leaders may often push
the courts to make unpopular or illegitimate decisions so that they can later earn
credit for overruling the judicial orders. In 2012, for example, the Constitutional
Council of Kazakhstan decided that national elections could not be held in the region
of Zhanaozen where a state of emergency had been declared in the wake of violent
clashes between protesters and riot police, reportedly resulting in the death of dozens of protesters.52 This decision, which might lead to further disclosures of human
rights violations in the region, was immediately overruled by President Nazarbayev,
who stated that the residents cannot be denied their constitutional rights. In reality,
few independent observers believe that the Council’s decision could have been made
without the consent of the President. It is believed that the Council’s intervention was
clearly intended to produce a situation in which the President’s final verdict would
present him in a benevolent and progressive light. It did not matter at all that the reputation of the constitutional court would be the price to pay.
4. Conclusions
This article has argued that post-Soviet constitutional courts are among the most
politicized courts in the world if we take their formal empowerment as an indicator. Whether or not this assessment makes the region home to judicialization largely
depends on the proper definition of “judicialization,” which is yet to be provided. This
article shows that, despite a fair degree of generalization, the judiciary in every country in the region still suffers from a lack of independence to such an extent that no
For information on the events in Zhanaozen, see Human Rights Watch, Striking Oil, Striking Workers:
Violations of Labor Rights in Kazakhstan’s Oil Sector (2012), 101, available at http://www.hrw.org/sites/
default/files/reports/kazakhstan0912ForUpload.pdf.
52
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I•CON 13 (2015), 200–218
outward manifestation of judicial activism can be reasonably taken as a pattern of
a real transfer of political decision-making from the representative branches to the
courts.
Discussing and conceptualizing the cases of judicial decision-making on key political issues in post-Soviet countries, this article has emphasized the following qualities
of this phenomenon: judicial intervention in pure politics is incidental rather than
consistent; respective incidents hardly represent any visible transfer of power from the
political decision-maker to the judiciary; and judicial involvement in politics is more
often than not a byproduct of political pressure or manipulation of constitutional law
and of the constitutional judiciary. These features of judicial involvement in politics
in effect set the patterns of judicialization in contrast with what has been depicted as
judicialization of politics in developed democracies.53
As this article was under review, Ukraine was shaken by another strong wave of protests that brought to
change of power in capital Kiev and secessionist actions in Crimea. These developments, certainly, could
not bypass courts. In only a few days since President Yanukovich was ousted from power, the interim
Ukrainian government replaced the judges of the Constitutional Court, while the country returned
back to the 2004 Constitution which was invalidated by pro-Yanukovich Constitutional Court in 2010.
Meanwhile in Russia, as both the Parliament and the President approved Crimea’s hasty vote to become
part of Russia, the Constitutional Court of this country is expected to review the constitutionality of this
action. As the outcome of this and possible other related cases is yet to be seen, soon there will be plenty
of material for the succeeding literature on the subject to test the hypotheses of this article.
53