2015, Vol. 13 No. 1, 200-218 doi: 10. 1093/icon/mov003

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, includ-
ing 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 presi-
dential 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: 
29
Sometimes, long-standing uncertainty and failure of a competing group to capture critical mass of politi-
cal influence brings to an adverse result by hibernating rather than activating courts as political decision-
makers. 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.
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Judicialization of politics: The post-Soviet way
211
the first and only time in a post-Soviet country that the opposition took the presiden-
tial 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-pol-
itics during situations of political instability also took place in the midst of an elec-
toral 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 preroga-
tives.
33
 While the tense political standoff went through yet another revival in 2007, 
the Constitutional Court unexpectedly decided to invalidate the 2006 reform, restor-
ing 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