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 tribu-
nals 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 anti-
democratic 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 post-
Soviet 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
17
For the details,
see
Robert Sharlet,
The Russian Constitutional Court: The First Term
, 9
P
oSt
-S
ovIet
a
ffaIRS
1 (1993);
R
obeRt
a
hdIeh
, R
uSSIa
’
S
c
onStItutIonal
R
evolutIon
: l
eGal
c
onScIouSneSS
and
the
t
RanSItIon
to
d
eMocRacy
1985–1996
(1997);
S
chwaRtz
,
supra
note 10.
18
S
chwaRtz
,
supra
note 10.
19
Id.
at 226.
20
Kathleen Collins,
Kyrgyzstan’s Latest Revolution
, 22(3)
J. d
eMocRacy
150
(2011).
Downloaded from https://academic.oup.com/icon/article/13/1/200/689847 by guest on 31 May 2022
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.
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