Judicialization of politics: The post-Soviet way
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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 man-
date—was nothing short of a “juridical
coup d’état
.”
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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 execu-
tive. 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.
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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 constitu-
tion” of a nation that lived the sensitive historical issue through a century of emo-
tional 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 interna-
tional 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 defi-
ance can be found in the 2011 decision of the Constitutional Council of Kazakhstan,
rejecting the proposal on extending President Nazarbayev’s term without elections.
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Alec Stone Sweet,
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