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

The Juridical
coup d’état 
and the Problem of Authority
, 8(10) 
G
eRMan
l.J.: S
PecIal
I
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on
S
tone
S
weet
915 (2007).
49
John T. Ishiyama & Ryan Kennedy, 
Superpresidentialism and Political Party Development in Russia, Ukraine, 
Armenia and Kyrgyzstan
, 53(8
) e
uRoPe
-a
SIa
S
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. 1177 (2001).
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216
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 presi-
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 envi-
ronment in Kazakhstan, judicial defiance against the plans of the President would be 
unthinkable. The Constitutional Council’s objection to holding a referendum extend-
ing 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 referen-
dum. 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 progres-
sive democratic nation. Indeed, attracting the criticism of these players based on dem-
ocratic 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.
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, sav-
ing 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 pro-
nouncement 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 alli-
ances based on parity and equal input, but are marked by the dominance of the for-
mer 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 post-
Soviet judiciary enjoys the privilege of sharing even the formal burden of decision-
making 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 
50
Yury Fedorov, 
Kazakhstan: Looming Instability?
, 18(1) 
S
ecuRIty
I
ndex
: a R
uSSIan
J. I
nt
’
l
S
ecuRIty
59 (2012).
51
Vladimir D. Shkolnikov, 
The 2010 OSCE Kazakhstan Chairmanship: Carrot Devoured, Results Missing
, 
eucaM P
olIcy
b
RIef
No. 15 (Apr. 2011).
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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 post-
Soviet 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 evi-
dence 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 doz-
ens 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 repu-
tation of the constitutional court would be the price to pay.